Nkambule v Sithole and Another (122/2018) [2018] SZIC 45 (26 April 2018);

 

 

 

 

IN THE INDUSTRIAL COURT OF SWAZILAND

 

                                                                                                Case No. 122/18

In the matter between:                                         

 

MBONGENI NKAMBULE                                                     Applicant

 

And

 

MAJOZI SITHOLE N.O                                                         1^st Respondent

THE CENTRAL BANK OF SWAZILAND                            2^nd Respondent

 

Neutral citation:    Mbongiseni Nkambule v Majozi Sithole and Another (122/2018) [2018] SZIC

 

Coram:                NSIBANDE S. JP

(Sitting with Nominated Members of the Court Mr N. Manana and Mr M. Dlamini)

 

Heard:                 25 April 2018

Delivered:            26 April 2018

 

RULING

 

[1] At the hearing of this matter the 2^nd Respondent’s (hereinafter called the Respondent) representative raised a preliminary issue regarding the minutes of a meeting of the Executive Committee of the Central Bank of Swaziland dated 27^th March 2018 and attached to the Applicant’s application marked annexure “MN1”.  The Respondent took issue with the minutes on the basis that they had been irregularly and unlawfully attached to the Applicant’s application.  The basis of the complaint was that – (i) the minutes are confidential in nature as they pertain to information relating to the operations of the Respondent; the Applicant had no right to distribute and/or cause to be published such minutes without the authority of the Governor of the Central Bank; the Applicant’s action (of attaching the minutes) is in contravention of the oath of secrecy that he took on assuming his duties with the Respondent as well as Section 20 of the Central Bank Order 1974.  The Respondent sought to have the minutes struck out on the basis that their inclusion was scandalous and vexatious.  In addition to this the Respondent sought an order prohibiting members of the media from publishing these minutes.

The Applicant consented to the granting of the order prohibiting the publication of the minutes by members of the media but submitted that to expunge the whole would be going too far and that confidentiality could not be overstressed”.  It was submitted that the parts of the minute relevant to the Applicant’s case could be saved.  The bulk of the minute attached to Applicant’s papers is totally irrelevant to the case before court.  The issues discussed therein appear to be f a highly confidential nature that should not be put in the public domain willy nilly as they touch upon the business of not only the Respondent but other entities that are not party to this litigation.  In the face of Section 20 of the Central Bank Order 1974 read with sub section 3 thereof its seems to us, irresponsible in the extreme for a person in the position of the application to attach the minutes to his papers.  The retention of the minutes would be prejudicial to the Respondent, in our view.  The minute is therefore struck-out.

 

[2]  The Respondent raised the further point that the court has no jurisdiction to intervene and interfere with the Respondent’s prerogative to discipline its employees unless there are exceptional and compelling reasons to do so; that all the reasons set out by the applicant as his basis to have the court interfere are issues that the chairperson of the disciplinary hearing was seized with and could decide.  The chairperson could decide whether applicant was changed by the wrong person; whether there was no offence he had committed as the application contends.  These were said to be issues that were squarely within the jurisdiction of the chairperson of the disciplinary hearing whose authority the court could not usurp without compelling reasons.  The Applicant was said to have failed to there was potential of a miscarriage of justice if he attended the disciplinary hearing.  The Applicant’s position was that the disciplinary hearing was illegitimate because of 1^st Respondent’s irregular action of changing the Applicant and the he could therefore not be expected to attend and participate in an irregular process.  Further that the chairperson of the disciplinary hearing had no power to grant the declaratory orders that Applicant sought in court.

       Having the arguments of the parties and having read their papers it seems to us that the Applicant jumped the gun by coming to court instead of attending the disciplinary hearing and asking the chairperson thereof to make a determination of all the issues and irregularities that he raised before court.  The chairperson has the discretion to decide whether the Applicant has been given enough time to prepare for the hearing; whether he has been irregularly charged by the wrong party; and any other preliminary complaints the Applicant may have.

       The chairperson is yet to exercise his/her discretion on these issues.  We have no reason to believe that he/she will not exercise his/her discretion judiciously.  While the court was not told if the chairperson of the disciplinary hearing is external and independent, we are still loathe to usurp the discretion of the chairperson unless he has unreasonably fettered or abdicated his discretion.

            Ndoda Simelane v National Maize Corporation (Pty) Ltd Industrial Court Case No. 453/06.

 

In the circumstances the points raised by the Respondent are upheld and the application is dismissed.

        

          With regard to the issue of urgency and the unreasonable abridgement of the timelimes we find it unnecessary to make a ruling in view of the dismissal of the application.

 

          There no order as to costs.

 

          The members agree.

 

                

___________________

NSIBANDE S.

JUDGE PRESIDENT

 

 

For the Applicant:                  Mr K.Q. Magagula

For the Respondent:               Mr Z.D. Jele