IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO: 162/2018
In the matter between:
EPHRAIM MADODA KUNENE APPLICANT
SWAZILAND ELECTRICITY COMPANY 1st RESPONDENT
BANELE GAMEDZE N.O 2nd RESPONDENT
Neutral citation : Ephraim M. Kunene v Swaziland Electricity
Company & Another (162/2018) 2018 SZIC
046 (08 June 2018).
BONGANI S. DLAMINI : ACTING JUDGE
DAN MMANGO : MEMBER
NKHOSINGIPHILE DLAMINI : MEMBER
DATE HEARD : 04 JUNE 2018
DATE DELIVERED : 08 JUNE 2018
Summary: Urgent application for the recusal of Chairperson in a disciplinary hearing- Applicant contending that where there is an existing attorney-client relationship between the Chairperson and the employer, this fact alone creates a ‘reasonable apprehension of bias’ and therefore that Chairperson ought to recuse himself from chairing the disciplinary hearing. Respondent on the other hand arguing that in internal disciplinary processes, ‘institutional bias’ is unavoidable and that a professional relationship between employer and the Chairperson on its own is no ground for seeking recusal of the Chairperson.
Held; There are two conflicting judgements on the subject in our jurisdiction. The mere fact of an existing professional relationship between the Chairperson and the employer does not, on its own, create a ground or basis for the recusal of the Chairperson. An Applicant is required to demonstrate, on a preponderance of probabilities, that other than the professional relationship existing between the parties, the Chairperson, from his conduct or other reasonable factors, is likely to be partial and lean towards the employer in the determination of the issues before him/her.
- The present application seeks an order for the recusal of the Chairperson in an internal disciplinary hearing convened by the 1st Respondent against the Applicant.
- The Applicant occupies the position of Commercial Manager within the 1st Respondent and is based at its head office in Mbabane, District of Hhohho.
- The 1st Respondent, Swaziland Electricity Company, is a statutory body, having been established through the Swaziland Electricity Company Act, 2007 and has capacity to sue and to be sued in its own name.
- In his Founding Affidavit, the Applicant states that on the 6th April 2018, he was served with a notice informing him to attend a disciplinary hearing which was scheduled to commence on the 18th April 2018 at 0900 hrs. The notice served on the Applicant also informed him of the charges to which he was to answer on the date of the hearing.
- The Applicant states that during the first sitting of the disciplinary hearing which he attended with his Legal Counsel, the Chairperson of the Disciplinary hearing, one Mr Banele Gamedze, introduced himself and further informed all those in attendance that he is an attorney attached to Musa M Sibandze Attorneys.
- During the first sitting of the disciplinary hearing, the Chairperson enquired from the parties as to whether there was any objection to his appointment to act as Chairperson in the disciplinary hearing. The Applicant, being unaware of the dual role played by the Chairperson at that stage did not object and the hearing proceeded smoothly on the first sitting.
- The Applicant asserts that after the first sitting was adjourned, the matter was then postponed to the 8th May 2018 for continuation. However, the matter could not proceed on the scheduled date because the Applicant and his counsel were informed that the Chairperson would not be available on the date in question.
- The information which the Applicant received on the eve of the 8th May 2018 was that the Chairperson’s unavailability was due to the fact that he (Chairperson) would be representing the Respondent at the Industrial Court in a matter involving the same company which had preferred charges upon him against some employees of the company duly represented by their union.
- The Applicant was alarmed by this fact and immediately instructed his attorney to file a request for the recusal of the Chairperson because of the attorney-client relationship existing between the Chairperson’s law firm and his employer. A request for recusal was then made to the Chairperson in camera but such request was turned down by the Chairperson.
- The Applicant then moved a formal application for the recusal of the Chairperson. The application for the recusal of the Chairperson was opposed by the 1st Respondent at the shop-floor level and the parties were directed to motivate and provide legal authorities for their respective positions accordingly. In motivating his application for the recusal of the Chairperson, the Applicant submitted that they had discovered that the law firm which the Chairperson works for was not just representing the 1st Respondent in one particular matter but that in fact, it had a retainer with the 1st Respondent and was its attorneys of record and legal advisors in various matters including labour related matters.
- After considering the submissions made by the respective parties, the Chairperson gave his written ruling in which he basically rejected the application for his recusal. In essence, the ruling by the Chairperson was that as far as he was concerned, the issue of ‘reasonable apprehension of bias’ was not an issue because there was no basis for such. In analyzing the issues, the Chairperson noted that the concern by the Applicant was founded on the notion of ‘institutional bias’ caused by the existence of the attorney-client relationship between his law firm and the 1st Respondent.
- The Chairperson considered the legal authorities availed by the respective parties and made a written finding to the effect that there was no basis upon which he could recuse himself given the facts of the matter.
- The Applicant was dissatisfied with the ruling of the Chairperson and chose to institute the present application which is essentially a review application. From the facts alleged in the Applicant’s founding affidavit, it is clear that the Applicant relies on an ‘error of law’ as a ground for review.
Analysis of facts and the applicable law
- Both parties filed comprehensive heads of argument and made detailed submissions on what should be the correct legal position applicable on this particular subject.
- Other than the decided cases applicable in this jurisdiction, the Applicant sought to place reliance on South African cases, particularly the cases of KwaZulu Transport (Pty) Ltd v Mnguni and Others (2002) 22 ILJ 1646 (LC), Appel v Leo and Another 1947 (4) SA 766(W) and Dumbu and Others v Commissioner of Prisons and Ors (1992) 4 SA 403 (C), amongst other cases.
- The two cases of KwaZulu Transport Limited and Appel relied upon by the Applicant’s Counsel were dealing with applications for the recusal of a Commissioner or Arbitrator of the Commission for Conciliation Mediation and Arbitration (CCMA) in arbitration proceedings. Given the long line of legal authorities on the subject, it can be accepted as settled law that the test applicable to judicial officers and Arbitrators or Commissioners exercising similar powers as the courts differs from the test applicable to chairpersons of disciplinary enquiries in disputes between employers and employees.
- In the KwaZulu Transport Limited case referred to above, the Court summarized the issues as follows;
- A person who renders services not only as a Commissioner but also as a representative of one of the parties before the CCMA should recuse himself or herself without hesitation if the apprehension of bias is based on the dual role played by the Commissioner.
- A Commissioner who has litigated against or for a party who is scheduled to appear before him or her should disclose that fact immediately he or she receives the notice of the hearing and offer to recuse himself or herself.
- The Commissioner’s omission to disclose his relationship in the past with one of the parties was at best negligent and at worst, a deliberate misrepresentation.
- There must be a maximum disclosure of any facts that could reasonably lead to a perception of bias by a party.
- In the context of a disciplinary enquiry between an employer and an employee, it is an accepted principle that the proceedings, though required to be fair, independent and just, are nonetheless informal proceedings. The employer is by law allowed to appoint any person, usually higher in rank to the accused employee, within the same organization, to chair the disciplinary hearing. The employer may also decide to source the services of an external person to chair the disciplinary hearing.
- In the case of John Kunene v The Attorney General Case No.15/2006 (CA), the Court made reference to the case of National Transport Commission and Another v Chetty’s Motor Transport (Pty) Ltd 1972 (3) 726 (A) at 734 H-735 A where the principle was articulated as follows;
“The Commission is not a court. It is a body of men appointed for their expertise in their particular field. It is not bound by rules of judicial procedure. It is not obliged to hear oral evidence. It is not required to keep a record of the proceedings. It can reach its decision in its own way, so long as it honestly applies its mind to the issue: observe the requirements of natural justice, such as audi alteram partem; and bears in mind any relevant statutory provisions…”
- It is for the above stated reasons that the two dispute resolution forums, namely an internal disciplinary enquiry and court proceedings cannot be treated at the same level in so far as the issue of recusal is concerned. The South African cases relied upon by Mr Motsa in support of the relief claimed may therefore not be entirely helpful to the Applicant’s cause.
- We now turn to consider the two local cases applicable in this area. The first case is that of Makhosonkhe Shongwe & Another v Swaziland Electricity Board Case No.143/2008 (I.C) in which case this Court held that it is improper for an Attorney to act as Presiding Officer in a situation where the same firm of attorneys acts as legal advisors and attorneys for the same company. In this case, the conclusion reached by the Court was that;
“Where an attorney is retained as an attorney and legal advisor of the employer, that attorney is disqualified from chairing an internal disciplinary hearing because of a reasonable perception of bias…The Court is therefore of the view that because of the subsisting relationship between the law firm of the Chairman and the 1st Respondent, the applicant’s apprehension that they will not have a fair trial under the Chairmanship of Mr. Simelane is reasonable. The Court is alive to the principle that an employer has a right to subject its employees to disciplinary action. The Court should not lightly interfere with this prerogative of the employer. In this case however the court will interfere to prevent an unfair labour practice. The court will therefore interfere only in exceptional circumstances.”
- In employing the test articulated by the Court in the Makhosonkhe Shongwe case, the Applicant, through his erstwhile attorney, cannot be faulted in seeking to have the Chairperson recuse himself from the proceedings. Indeed the Court in this case made it clear that the existence of the attorney-client relationship is, on its own, sufficient ground to call for the Chairperson to recuse himself or herself. In the assessment of the Court in this case, it is not necessary that the Chairperson must have conducted himself or herself in such a manner so as to cause a reasonable apprehension of bias.
- Turning now to the case of Lynette Groening v Standard Bank Swaziland Limited & Another Case No.222/2008 (I.C), a similar order was sought to have the Chairperson removed on the basis that his law firm had tendered to provide legal services to the employer and was in fact placed on the employer’s list of service providers. This means when the Chairperson was appointed to chair the disciplinary hearing in this case, there was already an attorney-client relationship between the parties.
- In its analysis of the issues in this case, the Court stated that;
“The notion of “institutional bias” allows a person to chair a hearing even where his connection with the institution concerned might arouse a suspicion of inevitable bias, provided there is no probability that he is actually biased. This kind of bias is accepted as necessarily built into the employment internal disciplinary process, wherein the presiding officer is a representative of the employer…whilst institutional bias normally arises when a manager from within the employer’s institution is appointed to preside over a disciplinary hearing, it may arise when an outsider is appointed-for instance a manager from a related company, or an officer from the Federation of Swaziland Employer’s, or – as in this case- a professional engaged to serve as presiding officer.”
- In its conclusion, the court in the Lynette Groening case referred to the Makhosonkhe Shongwe judgement and stated as follows;
“The learned Judge held that the Applicant’s apprehension that they would not have a fair hearing was reasonable because of the subsisting relationship between the law firm of the chairman and the employer. In reaching this conclusion, the learned Judge specifically held that the complaint was not that of institutional bias, and the common law test of a reasonable suspicion of bias should be applied…We respectfully disagree with this finding. For the reasons set out above, it is our view that the perception of bias that arises from the attorney-client relationship between the chairperson and employer is a perception of institutional bias. This kind of bias does not disqualify the chairperson unless a probability of actual bias is proved.”
- On the other hand, Grogan J, Workplace Law (9th Ed) at p. 196 states that;
“The point of a disciplinary hearing is to enable the presiding officer to weigh the evidence for and against the employee and to make an informed and considered decision. This presupposes that presiding officers must have, and keep an open mind throughout the proceedings. The rule against bias emanates from administrative law, which requires that an officer presiding at a disciplinary hearing not only be impartial in fact, but also that there should be no grounds for even suspecting that his or her decision might be shaped by extraneous factors, even if this is in fact not the case. Decisions of administrative tribunals have been set aside merely on the ground that the person charged might reasonably suspect that the presiding officer was biased.”
- It is a fact in this matter that the Applicant suspects that the appointed Chairperson might be bias essentially because of the existing attorney-client relationship between the Chairperson and his employer. The test of reasonable suspicion is an objective test which by law is applied by taking into account all the particular circumstances of the case and not just from one particular angle. In other words, the test is not a subjective one but is a test that requires the court to look at the issues in a holistic manner.
- We accept the reasoning and conclusion of the court in the Lynette Groening case which was that the Applicant’s complaint in that matter was premised on the notion of institutional bias. Similarly, the Applicant’s complaint in the present application is none other than a complaint of institutional bias.
- The relationship existing between the employer and the Chairperson is nothing more than a professional relationship. If the relationship between the Chairperson and the employer is of a professional nature and not a personal or other relationship, then it is regulated and governed by professional and ethical standards. Both the employer and the Applicant expect that the disciplinary hearing will be conducted in a professional, just and fair manner.
- The present application is a vivid demonstration that corporate entities and professional people have lowered professional and ethical standards to such an extent that the abnormal is now considered to be the normal and vice-versa. This is unfortunate and calls for an introspection to all those concerned.
- The Applicant is a manager within the 1st Respondent and we can only assume that he is probably alive and aware of the activities and decisions taken between the corporate entity and its professional advisors, otherwise there would have been no need for the present application. It is however not for the Court to endorse the abnormal as being the normal. All that is expected from a professional relationship is a professional outcome.
- We therefore align ourselves with the submissions by the 1st Respondent’s Counsel which is that the complaint by the Applicant is that of institutional bias and that by law this kind of bias is on its own not a ground for seeking recusal of the Chairperson.
- The court accordingly makes the following orders;
- The Applicant’s application is dismissed.
- There is no order as to costs.
One member agrees and the other member does not agree.
BONGANI S. DLAMINI
ACTING JUDGE OF THE INDUSTRIAL COURT
For Applicant: Mr. M. Motsa ( Motsa Mavuso
For Respondents: Mr.Z.D Jele (Robinson Bertram