IN THE INDUSTRIAL COURT OF SWAZILAND
RULING
Case NO. 487/13
In the matter between:
JOHN MATSEBULA Applicant
And
THE CHAIRMAN, CIVIL SERVICE COMMISSION 1st Respondent
THE PRINCIPAL, SECRETARY, MINISTRY OF
PUBLIC WORKS AND TRANSPORT 2nd Respondent
THE ATTORNEY-GENERAL 3rd Respondent
Neutral citation: John Matsebula v The Chairman, Civil Service Commission & Two Others (437/13) [2014] SZIC 6 (February 2014)
Coram: NKONYANE J,
(Sitting with G. Ndzinisa & S. Mvubu
Nominated Members of the Court)
Heard submissions : 07 FEBRUARY 2014
Ruling delivered : 28 FEBRUARY 2014
Summary:
The Applicant was dismissed from the public service after he was found guilty of absenteeism. The Applicant instituted review proceedings and argued that there were procedural irregularities during the disciplinary hearing entitling the court to set aside the 1st Respondent’s decision to dismiss him.
Held—there was a dispute of fact arising from the papers whether or not any evidence was led against the Applicant to prove the charges preferred against him and also whether or not the Applicant was afforded an opportunity to make representations before his salary was stopped—matter accordingly referred to oral evidence to resolve the two issues that are in dispute.
RULING
28.02.14
[1] The issue before the court concerns the disciplinary control of civil servants or public officers. The disciplinary control of members of the civil service is vested in the Civil Service Commission (hereinafter called the Commission). This is in terms of section 187 (1) of the Constitution of the Kingdom of Swaziland. In this regard the Commission is guided by the Civil Service Board (General) Regulations of 1963. There are also other statutory, common law and Constitutional principles that are applicable and binding on the Commission.
[2] In section 33 (1) and (2) of the Constitution of the Kingdom of Swaziland Act No.1 of 2005, for example, the rights of public officers are clearly entrenched. That section provides that:
“Right to administrative justice
33 (1) A person appearing before any administrative authority has a right to be heard and to be treated justly and fairly in accordance with the requirements imposed by law including the requirements of fundamental justice or fairness and has a right to apply to a court of law in respect of any decision taken against that person with which that person is aggrieved.
(2) A person appearing before any administrative authority has a right to be given reasons in writing for the decision of that authority.”
The Commission is therefore bound to take into account these requirements of the Constitution when dealing with a disciplinary matter of a public officer.
[3] The Civil Service Board (General) Regulations of 1963 under Regulations Number 41 to 50 lay down the procedure to be followed in disciplinary proceedings. Both the provisions of Section 33 of the Constitution of the Kingdom of Swaziland and the Civil Service Board (General) Regulations are couched in clear, ordinary and unambiguous language. The Commission therefore can have no genuine or reasonable excuse for failing to abide by the principles laid down by these legal instruments.
[4] The Applicant in the present proceedings was employed by the Government of Swaziland in 1976 and was attached to the Ministry of Public Works and Transport. He was in continuous employment until he was dismissed by the Commission on 15th November 2011 after he was found guilty of absenteeism.
[5] The Applicant considered the sanction of dismissal unfair and duly reported a dispute with the Conciliation, Mediation and Arbitration Commission (CMAC). The dispute was not resolved and a certificate of unresolved dispute was issued by the CMAC Commissioner. The Applicant thereafter launched an application for determination of an unresolved dispute in terms of Rule 7 of the Industrial Court Rules, 2007 under case No. 353/2012. The Applicant later withdrew that application and filed the present review proceedings before the court and is seeking an order:-
“1 Reviewing and setting aside the decision of the Civil Service Commission dismissing him from the Civil Service.
2 Directing and compelling the Government of Swaziland to pay Applicant his monthly salary from October, 2011 to the date of lawful exit from the Civil Service.
3 Costs.
4 Further and/or alternative relief.”
[6] The Applicant’s application is opposed by the 1st Respondent on whose behalf an answering affidavit was filed and deposed thereto by the Chairman, Mr. Peter N. Mamba. The Applicant thereafter duly filed his replying affidavit.
[7] The 1st Respondent argument before the court was that the Applicant was fairly dismissed after the Commission found him guilty of absenteeism, and that his disciplinary hearing was fairly conducted as the Applicant was able to appear before the Commission to answer the charges preferred against him. It was also argued on behalf of the 1st Respondent that the Applicant was not entitled to institute the present review proceedings as he first instituted application for determination of unresolved dispute in terms of Rule 7 of this court’s rules. The Applicant argued to the contrary that his disciplinary hearing was not fairly conducted as he was not given an opportunity of securing legal representation and that he was not given any notice of the charges that he was going to face before the Commission. The Applicant further argued that no evidence was led against him and that his salary was stopped by the employer in October, 2011 without his knowledge. The court will now deal with the issues raised during the submissions herein below.
[8 ] LEGAL REPRESENTATION:
In paragraph 6, the Applicant stated in his Founding Affidavit that he was not given an opportunity of securing legal representation. This was denied by the 1st Respondent. Indeed the evidence before the court revealed that at some point the Applicant was represented by the office of Mngomezulu Attorneys. (See: Annexure “AG9”). The Applicant’s Attorneys wrote a letter to the 1st Respondent on 19th October 2011 and applied for a three weeks’ postponement citing the boycott of the courts and statutory tribunals that was going on at that time. This request was granted by the 1st Respondent. The hearing was accordingly postponed until 09th November 2011. The Applicant was advised by the Commission that he was at liberty to appear with his legal representative, union member or a work colleague.
[9] The hearing eventually proceeded on 15th November 2011. From the evidence before the court, it is therefore not correct that the Applicant was not given the opportunity to have legal representation. If the Applicant’s attorneys were not available to represent him on 15th November 2011, there was no evidence before the court that the Applicant applied for a postponement and that it was unduly refused by the Commission. Furthermore, even if the Applicant’s Attorneys were not available on that day, there was no evidence that the Applicant did try to engage the services of a union member or a work colleague, and they refused to represent him. There is no averment in the Applicant’s papers that when the hearing finally proceeded on 15th November 2011, it was against his will or that he was not aware of his right to representation by a legal practitioner, union member or work colleague. From the evidence before the court it is also not correct that the Applicant was not given any notice of the charges. The letter of invitation to the hearing clearly stated the nature of the charge. The charge is stated as “that you absented yourself from work from January 2011 to date without permission or any reasonable excuse in contravention of General Order A1000(4).” This letter further stated that “You are at liberty to appear with your legal representative, union member or a working colleague to assist you with the proceedings.”
[10] This letter is dated 12th October 2011. This is the letter that the Applicant produced to his Attorneys when giving them instructions. His Attorneys when writing to the Commission requesting a postponement quoted this letter in paragraph 2 thereof which appears as follows:
“2. We have just been furnished with your letter dated 12th instant inviting our client to a disciplinary hearing scheduled for the 19th October 2011 at 11:00 hrs.”
The Applicant therefore was fully aware of the charges that he was being called upon to answer before the Commission. He was also fully aware of his rights to legal representation. The court will therefore accept the 1st Respondent’s evidence that on the date of the hearing the Applicant appeared on his own and he consented to proceed without representation.
[11] MATTER NOT PROPERLY BEFORE THE COURT:
It was argued on behalf of the 1st Respondent that the matter was not properly before the court as the Applicant first referred the dispute to the Conciliation, Mediation and Arbitration Commission (“CMAC”). It was argued that as the dispute was reported to CMAC, the matter should have come to court in terms of Rule 7 of the Industrial Court Rules, 2007. Indeed the court was informed that the Applicant had initially instituted proceedings before this court under Case No. 353/2012 for determination of an unresolved dispute in terms of Part VIII of the Industrial Relations Act, 2000 as amended. That application was however withdrawn by the Applicant. It is therefore not pending before the court.
[12] It was further argued on behalf of the 1st Respondent that the Applicant having already made a choice as to how he would proceed to seek a relief before this court, he was bound by the choice that he made and was not entitled to change midstream and seek relief by way of review. The case of Melody Dlamini v. The Secretary, Teaching Service Commission & 3 Others, Case No. 121/2008 (IC) was relied upon as authority that a civil servant has a choice either to approach the court in terms of Rule 7 or to apply to the court for review of the disciplinary chairperson’s ruling.
[13] The court was not referred to any authority in support of the argument that a litigant is not allowed in law to withdraw proceedings that he had earlier instituted in court and thereafter file fresh application under a new head. Without any legal authority in support of this argument, the court is unable to agree with the 1st Respondent’s Counsel’s proposition. The argument is accordingly dismissed.
[14] NON-COMPLIANCE WITH THE CIVIL SERVICE BOARD (GENERAL) REGULATIONS:
The thrust of the Applicant’s case before the court is that the disciplinary hearing was irregularly conducted to his prejudice, and that the results thereof ought to be set aside as his right to procedural fairness was not observed by the 1st Respondent. To the contrary,it was argued on behalf of the 1st Respondent that the Commission is not required to judicialise its proceedings or follow a criminal justice model incorporating all the elements of a criminal trial including the leading of witnesses and cross examination.
[15] The court agrees with the 1st Respondent’s Counsel that an administrative body is not required to conduct its proceedings like a court of law. Whilst it is correct that a disciplinary hearing need not be conducted in an overly technical manner, there are however certain basic tenets of natural justice that a public authority or domestic tribunal is expected to comply with, which if not adhered to, would affect the Applicant’s right to a procedurally fair administrative action. An employee at the workplace is entitled to both procedural and substantive fairness.
[16] The Applicant stated in paragraph 7 of the Founding Affidavit that “… no evidence whatsoever was led againstme.” In his Answering Affidavit, the 1st Respondent stated that;
“AD PARAGRAPH 7 – 8
I deny the contents of these paragraphs. The Applicant was served with a letter inviting him to a disciplinary hearing. It was clear ex facie that letter that the Applicant was called upon to answer on his absenteeism habits. The letter further informed Applicant that he is at liberty to appear with his legal representative, or union member, or a colleague to assist him in the proceedings.”
[17] The Applicant having denied that any evidence was led against him at the hearing, the 1st Respondent had the opportunity to produce the record of the proceedings to the court. The 1st Respondent failed to do that. The court was told by 1st Respondent’s Counsel that the record of the hearing got lost.
[18] If there was no evidence led during the disciplinary hearing to prove the charges of absenteeism levelled against the Applicant, it would follow that the 1st Respondent’s decision was irrational and had no legal basis and it cannot be allowed to stand. This issue is clearly critical for both parties and the court. Because of this material dispute of fact, the court is unable to resolve this issue on the papers before it. The court will accordingly refer this dispute to oral evidence.
[19] What should be noted however is that there is no requirement that the Commission should always lead oral evidence by way of parading witnesses during a disciplinary hearing. The Commission is also entitled to rely on documentary evidence to prove the charges preferred against an accused employee. This is in terms of Regulation 45 which provides that:
“(1) If witnesses are examined by the Board or the committee the officer shall be given an opportunity of being present throughout and of putting questions to the witnesses on his own behalf.
(2) No documentary evidence shall be used against the officer unless he has been first supplied with a copy thereof, or has been given access thereto.”
Regulation 45 (2)is to be read together with Regulation 40 (1) which provides that;
“An officer in respect of whom a disciplinary inquiry is to be held shall be entitled to receive a free copy of any documentary evidence which will be relied on for the purpose of the inquiry or be allowed access to it.”
[20] If it is found by the court after the dispute has been referred to oral evidence that no evidence (oral or documentary evidence) was led at the hearing, it would follow that the Commission’s modus operandi was procedurally unfair and inconsistent with the tenets of natural justice, the provisions of the Civil Service Board (General) Regulations and also Section 33 of the Constitution of the Kingdom of Swaziland.
See also: Governing Body of Tafelberg School v. Head of
Western Cape Education Department [1999] 4
All S.A. 573 (C).
[21] NON-COMPLIANCE WITH REGULATIONS 41 to 43:
It was argued by the 1st Respondent’s Counsel that the non-compliance with Regulations 41 to 43 did not result in a failure of justice because the Applicant still had a fair opportunity to influence the Commission’s decision. The court agrees with the 1st Respondent’s Counsel’s submission. Regulations 41 to 43 deal with the procedures during departmental preliminary investigation. Even if it were found by the court that the preliminary investigation procedures were flouted by the Head of Department, the Applicant still had the chance to deal with and answer to the charges preferred against him when he appeared before the Commission. There was therefore no serious prejudice that the Applicant suffered by the failure of the Head of Department to follow the procedures laid down regulating the departmental preliminary investigation.
[22] STOPPAGE OF APPLICANT’S SALARY:
The Applicant in paragraph 5 stated that his salary was stopped by the Government in October 2011 without him being informed. In response to this the 1st Respondent in paragraph 7 of the answering affidavit stated that “I deny that the Applicant’s salary was stopped by Government without informing him.” Again, this issue was highly contested, and the court is unable to resolve it on the basis of the papers alone. This issue will therefore also be referred to oral evidence.
[23] Taking into account all the above observations, the court will make the following ruling;
1. The passing of the judgement is deferred pending leading of oral evidence.
2. The matter is postponed until 14th March, 2014 for the leading of oral evidence to resolve the two issues specified by the court herein.
3. There is no order as to costs.
The members agree.
N. NKONYANE
JUDGE OF THE INDUSTRIAL COURT OF SWAZILAND
FOR APPLICANT: MR. S.C. DLAMINI
(S.C. DLAMINI & COMPANY)
FOR RESPONDENTS: MS. F. MAGAGULA
(ATTORNEY-GENERAL’S CHAMBERS)
