IN THE INDUSTRIAL COURT OF ESWATINI
Case No 251/19 (c)
In the matter between:
VUSI MKHALIPHI Applicant
CHAPELAT (SWAZILAND) (PTY) LTD t/a
MONDELEZ INTERNATIONAL 1st Respondent
SICELO BANGEKHO DLAMINI N.O. 2nd Respondent
Neutral citation: Vusi Mkhaliphi v Chapelat (Swaziand) (Pty) t/a Mondelez and Another  [251/19 (c)) (28 August 2020)
Coram: NGCAMPHALALA AJ
(Sitting with N. Dlamini and D.P.M. Mmango
Nominated Members of the Court
Date Heard: 21 July 2020
Date Delivered: 28 August 2020
Summary: The Applicant instituted the present application on an urgent basis seeking an order interdicting and straining the First and/or Second Respondent from continuing with the Applicants Disciplinary Hearing and issuing any sanction pending final determination of the Application. They are also seeking an order declaring the written ruling/ directive given by the second Respondent to the First Respondent to file his mitigating circumstances before the employer and issue a verdict in the matter to constitute an unfair labour practice. Furthermore, they seek an order that the Second Respondent be ordered and directed to convene the disciplinary hearing and continue to hear mitigating and aggravating factors and issue a recommendation, instead of passing the duty to the First Respondent. Alternatively, that the finding of the 30 June 2020 be set aside and matter start de novo before a new Chairman.
Held - There is no evidence that the Second Respondent is no longer seized with the matter, or that he has abdicated his powers to hear mitigation, and given it to the first Respondent. Furthermore, there is no evidence that the letter by the first Respondent requesting for written submission deters the Applicant from making oral submissions in mitigation before the Second Respondent. Accordingly, the matter is referred back to the Second Respondent to continue with the hearing, and receive both written and oral mitigating submissions by the Applicant.
 The Applicant is an employee of the 1st Respondent currently on suspension pending finalization of his Disciplinary hearing.
 The 1st Respondent is Chapelat (Swaziland) (Pty) Ltd trading as Mondelez International, a company duly registered and incorporated in terms of the laws of Eswatini carrying on business at Matsapha.
 The 2nd Respondent is Sicelo Dlamini, an adult male Liswati of Manzini and is the Chairman of the Disciplinary hearing.
This matter has a history before the above Honourable Court ever since the Applicant was subjected by the first Respondent to disciplinary proceedings on various charges of misconduct. This Application being one of the several Applications before Court.
 It is alleged by the Applicant in this Application that the 2nd Respondent has abdicated his duty to the hear mitigating or aggravating circumstances to the first Respondent and thus issuing the first Respondent with the power to recommend a sanction, a duty that falls within the ambits of the Second Respondent. Furthermore the 1st Respondent wants to issue a sanction without hearing oral mitigating and/ or aggravating circumstances before issuing a verdict. In support of these allegations the Applicant annexed a letter received from the First Respondent marked annexure VM2.
 The Applicant has now approached the Court under a certificate of urgency. They are seeking an order in the following terms:
“5.1 That an order be and is hereby issued dispensing with the normal and usual procedure limits relating to forms of service and time limits and hearing this matter on an urgent basis in terms of Rule 15 of the Industrial Court Rules.
5.2 Condonation of any non compliance with the Rules of Court.
5.3 That a rule nisi do issue operating with interim and immediate effect calling upon First and Second Respondents to show cause, on a date fixed by this Court , to show cause why the following order must be confirmed and made final.
5.4 Interdicting and restraining the First and/or Second Respondent from continuing with the Applicant’s disciplinary hearing and from issuing any sanction therein pending final determination of this application.
5.6 An order declaring the written ruling and/or directive given by the Second Respondent to the First Respondent and to the Applicant stating that the First Respondent is to “request the Accused (Applicant) to file his mitigating circumstances before the employer issues a verdict in the matter” as constituting an unfair labour practice and be set aside in so far as it constitutes an unfair labour practice.
5.7 That the Second Respondent be ordered and directed to convene the disciplinary hearing and to continue hearing mitigating and aggravating factors and to issue a recommendation instead of passing that duty to complainant employer
5.8 That the second Respondent’s finding, as embodied in the written findings dated the 30th June 2020, be set aside and the First Respondent be directed to start the disciplinary hearing of the Applicant de novo before a new Chairman.
5.9 That the First Respondents letter to the Applicant calling upon the Applicant to submit written mitigating factors be set aside as it constitutes a procedural irregularity in the hearing and thus an unfair labour practice.
5.10. Costs of application.
- Further and/or alternative relief.”
 The Applicants’ application is opposed by the 1st Respondent on whose behalf an answering affidavit was duly filed and deposed thereto by Mandla Shongwe, who stated therein that he is the Industrial Relations Manager at the 1st Respondent’s establishment. The Applicant thereafter filed their replying affidavit.
 The 2nd Respondent who is the Chairman of the Disciplinary hearing, has not filed papers before Court.
 The matter came for arguments on the 17 July 2020, the court directed that the matter be argued simultaneously in respect of the points in limine raised by the 1st Respondent and the merits of the application.
POINTS IN LIMINE
 Through the answering affidavit of one Mandla Shongwe the 1st Respondent raised the following points in limine.
- Abuse of Court Process
- There are no exceptional circumstances warranting this court to intervene in uncompleted disciplinary hearing
- Requirements of the ground of an interim order have not been met.
ABUSE OF COURT PROCESS
 The 1st Respondent raised the point that the applicant in bringing the present application in circumstances wherein the employer is exercising its right to discipline its employee, following internal procedures, is clearly an abuse of the machinery of the court. He further submitted that the prayers sought by the Applicant are not meritorious, but are vexatious, frivolous and improper, aimed at frustrating the completion of the disciplinary process which has run for almost a year since August 2019. 1st Respondent stated that this was the fourth application brought before this court without merit, and that this matter cries out for a strike out by this court for abusing its process.
Abuse of Court process was defined in Black’s Law dictionary (6th Ed) as
“a malicious abuse of the legal process occurs when the party employs it for some unlawful object, not the purpose which it is intended by law to effect, in other words a perversion of it.”
 Litigants and their respective counsel should take the necessary steps to safe guard the integrity of the judiciary and to obviate actions likely to abuse its process.
In the case of; Benkay Nigeria limited vs Cadbury Nigeria limited No. 29 of 2006, their respective Lordships held:
“In the Seraki vs Kotoye (1992) 9 NWLR, this court on abuse of court process held…..the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue”.
The Court observed that;
“……to constitute abuse of court process, the multiplicity of suits must be instituted by one person against his opponents on the same set of facts”
 The 1st Respondents Counsel has contended that the application is an abuse of the Court process and ought to be dismissed. The Court is agreement with this position, the Applicants disciplinary hearing commenced in August 2019, several applications have been made by the Applicant in an attempt to stop the hearing on the same set of facts. Either wanting the chairperson to be removed, on in the present case making allegations which could have easily been dealt with if the Applicant had communicated with his employer through the human resources office. No evidence was led by Applicant to show that means were made by him to communicate on the issue before court which could have been easily resolved without rushing to Court. This in effect means the point of law on the abuse of Court succeeds.
THERE ARE NO EXCEPTIONAL CIRCUMSTANCES WARRANTING THIS COURT TO INTERVENE IN UNCOMPLETED DISCIPLINARY HEARING.
“It is a trite position of the law that the court cannot come to the assistance of an employee before a disciplinary enquiry has been finalized. The reason being that the court does not want to interfere with the prerogative of an employer to discipline its employees or even to anticipate the outcome of an incomplete disciplinary process.
This would be the case even if the employee is in a situation where his pre- dismissal rights have been infringed or where there has been unfair labour practice. In such a case the court would only be able to grant relief after the fact. Conversely, the court has jurisdiction to interdict any unfair conduct including the disciplinary action in order to avert irreparable harm being suffered by an employee. Put differently, where exceptional circumstances exist for the court to intervene, it will.”
“……the attitude of the courts thus, is not to intervene in the employee’s internal disciplinary proceedings until they have run their course except where compelling and exceptional circumstances exists warranting such interference.
 The chairperson of a disciplinary enquiry and in whose hands the final decision, has a quasi-judicial function. He is by law presumed to be independent and impartial umpire and to have competence to determine any question in relation to the disciplinary enquiry, including the legality of the charges, until the contrary is proved. Since the question of the legality of the charges lies with the chairperson after evidence has been led, the court will only intervene on the issue of the charges. In the face there are compelling factors disabling the chairperson from adjudicating such a mala fide, bias etc…”
“in my view the accused person is guilty of all these charges that are preferred against him taking into consideration the evidence that was led at the disciplinary hearing.”
“In answering the question of whether the Appellant set out exceptional circumstances for the court to intervene, the court a qou ought to have considered whether a failure to intervene would result in injustice or whether the appellant could achieve justice by other means.”
It is trite law that the Court will not come to the assistance of an employee before a disciplinary inquiry has been finalized. The reason being that the Court does not want to interfere with the prerogative of an employer to discipline its employees or even anticipate the outcome of an incomplete disciplinary process.
This in effect means that the point of law on the intervention of this court in the incomplete disciplinary enquiry succeeds.
REQUIREMENTS OF THE GROUND OF AN INTERIM ORDER
HAVE NOT BEEN MET
For the Applicant to succeed in obtaining an interdict of this nature the Applicant must establish the following requirements:
- The existence of a clear right;
- Apprehension of irreparable harm;
- The absence of alternative relief;
- The balance of convenience.
“a Court must be satisfied that the balance of convenience favours the grant of an interim interdict. It must juxta pose the harm to be endured by an Applicant if interim relief is not granted with the harm the Respondent bear if the interdict is granted. Thus, a Court must assess all relevant factors carefully in order to decide where the balance of convenience rest”.
“even though a matter may be moot between the parties in the sense defined in Ackermann J, that does not necessarily constitute an absolute bar to its justiciability. This court has a discretion whether or not to consider it.”
Independent Electoral Commission vs Langeberg Municipality 2000 (3) SA 925.
 After considering all aspects of this case, taking into account all the circumstances of the case, the interests of justice, fairness and equity, the Court will make the following order based on the points of law upheld, that the present application cannot succeed and is hereby dismissed.
- The application is dismissed.
- The 2nd Respondent is directed to continue with the disciplinary hearing, allowing the Applicant to submit oral and written mitigating submission.
(iii) There is no order as to costs.
The Members Agree.
ACTING JUDGE OF THE INDUSTRIAL COURT OF ESWATINI
For Applicant: Mr. S. Simelane (S.M. Simelane & Company).
For Respondents: Mr. H. Magagula (Robinson Bertram)