THE HIGH COURT OF SWAZILAND
Case No. 54/95
the matter between:
JOYCE MSWELI Applicant
BUSINESS MANAGER - SWAZILAND
BOARD 1st Respondent
SWAZILAND ELECTRICITY BOARD 2nd Respondent
THE APPLICANT Mr. C. Ntiwane
THE FIRST RESPONDENT Mr. Flynn
applicant was employed by the second respondent as an accounts clerk
in April 1984. During July 1994 a commission was set up by the second
respondent to enquire into an allegation of a misallocation and/or
misappropriation of funds within the credit control section of the
second defendant. The commission found that the applicant was
implicated in the misappropriation of funds. A formal charge of fraud
and dishonesty was made against the applicant and she was invited to
a hearing on the 14th October 1994. It was not possible to proceed
with the hearing on the 14th October and it was postponed to the 19th
applicant sets out in her affidavit that on the 19th October she was
called upon to give her side of the story particularly whether she
the findings of the commission of enquiry. No evidence was given in
support of the allegations against the applicant. On the 19th October
1994 the applicant received a letter in the following terms -
an enquiry report dated the 20th September 1994 and a subsequent
hearing on the same case held on the 19th of October 1994, Management
has found you guilty as charged. Your services with the Board are
therefore being terminated with immediate effect, without notice, in
accordance with Section 36(b) of the Employment Act 1980.
applicant seeks an order that the decision of the 2nd respondent
terminating the services of the applicant be reviewed/corrected
and/or set aside with costs. The application was filed in terms of
respondents filed a notice in terms of Rule 30 for an order setting
aside the review application as an irregular proceeding. The grounds
for the application are that -
termination of the services of the applicant was an internal matter
and not one determined by the respondents as an administrative
tribunal in the exercise of the second respondent's function as the
supplier of electricity to the public of Swaziland."
second respondent is a body corporate established in terms of Section
3 of the Electricity Act No. 10/1963. The general powers of the
second respondent are set out under Section 9 of the Electricity Act.
Under Section 9(g) the second respondent has the power to -
and employ such persons as it thinks fit, pay them such remuneration
and allowances as it thinks fit, grant them such leave as it thinks
fit, and dismiss them.
53 makes provision for the review by the High Court of the decisions
or proceedings of -
inferior court and of any tribunal, board or officer performing
judicial, quali-judicial or administrative functions."
was submitted on behalf of the respondent that the respondents as
such do not fall within the bodies set out under Rule 53. The 2nd
it was argued, was not required by law or the statute by which it was
created to establish with itself the type of body or ( ribunal
referred to under Rule 53. "The enquiry which was set up in this
case was simply for purposes of the respondent's internal procedures
relevant to the question of fair or unfair dismissal. The applicant's
remedy it was argued was against the outcome i.e. the dismissal which
the applicant considered to be unfair.
is merit in the submissions on behalf of the respondent. The enquiry
or commission set up by the respondent cannot be equated to the
bodies, charged with a public duty, referred to under Rule 53. The
respondent dismissed the applicant in terms of Section 36(b) of the
Employment Act 1980. It is that decision which it is open to the
applicant to challenge.
application under Rule 30 is upheld. The application for review is
set aside with costs.