THE HIGH COURT OF SWAZILAND
AT MBABANE CIV. CASE NO. 55/95
the matter between:
QUBILE SIMELANE (BORN SILAWULA) Plaintiff
ATTORNEY-GENERAL 1st Respondent
DEVELOPMENT FUND 2nd Respondent
THE PLAINTIFF: MR KHUMALO
THE DEFENCE: MR. MAGAGULA
applicant's service was terminated by the Respondent on the 11th
August, 1994. She then made an application to the High Court for an
decision of the 1st and second respondent communicated by a letter
dated the 11th August, 1994 terminating her services be reviewed
corrected and set aside;
the Respondents pay the costs of the application as well as the
first respondent filed a notice in terms of Rule 6 (12) (c) that he
intends to raise the following question of law:-
employement was lawfully and properly terminated in terms of "clause
9 of applicant's contract of employment with the. respondent annexed
hereto and Mark 'A'
contract of employement with second
expired on 1st August, 1992 ana was never renewed. Applicant
accordingly has no basis for instituting these proceedings.
respondent relied on the first ground and abandoned the alternative.
He argued that the 2nd respondent was not obliged to give the
applicant a hearing as he exercised its rights in terms of clause 9
of the contract which states:
parties recognise that their mutual right to terminate the said
appointment at any time, provided that a month's written notice is
given by registered letter".
respondent argues that the master is not obliged to give a servant a
hearing. The Audi alterum partem rule does not apply in cases of
master and servant. He relies on the decision GRUNDLING VS BEYERS AND
OTHERS 1967(2) SA 131 where it was said that there is no presumption
in a contract of employment that the Audi Alterm Partem is implied.
The obligation to afford a hearing to natural justice must
did not address the court as to whether the Industrial Relation's Act
and Employment Act were applicable in the present case. His argument
was based on Common Law.
applicant argued that she was entitled to be heard. She relied on the
provisions of the Employment Act. Her counsel contended that for
respondent to enable her discharge the burden of proof required by
Section 42 of the Employment Act of 1980. She must have been given a
hearing to explain her position. In short she claims that her case
does not fall under Common Law because in Swaziland Common Law has
been replaced by the Act. Section 3 of the Act' prohibits contracts
which excludes the Act. The reasons for the termination of the
employment of the applicant were given as the mismanagement of funds.
She was not charged nor given a hearing to explain the findings of
these reasons, I find that the Audi Alteram Partem Rule cannot be
excluded as claim by the respondent. She was unfairly dismissed. The
dismissal is set aside.