IN THE SUPREME COURT OF ESWATINI
Civil Appeal Case No. 26/20
In the matter between:
CASHBUILD SWAZILAND (PTY) LTDAppellant
THEMBI PENELOPE MAGAGULARespondent
Neutral citation: Cashbuild Swaziland (Pty) Ltd vs Thembi Penelope Magagula (26/20) [SZSC] 42  (24th November, 2020)
Coram:S.P. DLAMINI JA
S.B MAPHALALA JA
J. M. CURRIE AJA
Heard: 26th August, 2020
Delivered:24th November, 2020
Summary:Labour Law – Appeal before Supreme Court – of judgment of the High Court – reviewing judgment of the Industrial Court – the Respondent sued the Applicant in the court a quo for reinstatement and monetary compensation for unfair dismissal – the Respondent succeeded in the Court below.
Held – the appeal fails and is dismissed with costs and the judgment of the court a quo is confirmed.
S.B. MAPHALALA JA
The Appellant Cashbuild Swaziland (Pty) Ltd has filed an appeal before this Court being dissatisfied with the whole judgment of the High Court of Eswatini delivered on the 30th April 2020 under Civil High Court Case No. 1898 Mabuza PJ presiding in terms of which the Appellant’s Application for review was dismissed with costs.
The grounds on which the Appellant appeals the judgment of the court a quo are the following:
1.The court a quo erred in law and in fact in dismissing the Appellant’s application for review and setting aside of the 30 October 2018 Industrial Court decision in favour of the Respondent under case no. 410/2007. In amplification hereof, the Learned Judge in the court a quo ought to have not only upheld the Appellant’s review but also substituted the aforesaid decision of the Industrial Court of Eswatini with one dismissing the Respondent’s application for the determination of an unresolved dispute with costs.
2.The Learned Judge in the court a quo erred in law and in fact in its complete or virtual failure to deal with the impact of the disciplinary hearing chairperson Thulisile Mlotsa’s evidence on Chakazile Hophe’s credibility and reliability. It is submitted that upholding Thulisile Mlotsa’s evidence carried with it the inevitable rejection of Chakazile Hlophe’s evidence as he was guilty of tendering evidence that was contradictory to the evidence she had tendered at the disciplinary hearing.
3.The Learned Judge in the court a quo erred in law and in fact in further not taking into account the evidence of the said disciplinary hearing chairperson in the determination of two questions: the procedural irregularity alleged by the Respondent to the effect that she was given three minutes to prepare for the hearing; and the independence of the appeal chairperson who was not only superior to the disciplinary hearing chairperson but also of uncompromisable integrity. The Learned Judge misdirected herself by placing undue reliance on an uncontextualized extract of the disciplinary hearing minutes for purposes of the determining the Respondent’s allegation of inadequate time for preparation for the disciplinary hearing.
4.The Learned Judge in the court a quo erred in law and in fact in rejecting the Appellant’s grounds of review as follows:
4.1That the Industrial Court had failed to take into account consideration it was enjoined in terms of section 36(b) of the Employment Act 5/1980 as amended in view of the fact that the evidence established the Respondent’s unlawful intention to apply force on a fellow employee, even in the limited context of the Respondent’s own testimony.
4.2The Industrial Court’s failure to direct its thoughts to the relevant material and principles, for example the erroneous treatment of the evidence of cellphone damaged of the victim of the Respondent’s assault which tilted the probabilities in favour of the Appellant’s case.
4.3That reinstatement was incompetent because of the period of time that had passed between the dismissal and the finalization of the determination of the unresolved labour dispute between the parties.
The factual background of the matter was outlined by Counsel for the Respondent in his Heads of Arguments to be the following:
“This is an appeal from a judgment of the High Court where a Review Application was filed by the Appellant’s attorneys. The review emanated from the Industrial Court where judgment was issued in favour of the Respondent.
The Respondent was employed by the Appellant as Systems Supervisor on the 1st August 2000 and remained in the continuous employment of the Appellant until 16th November 2007. On the 16th March 2007, the Appellant terminated the Respondent services.
A dispute was reported to CMAC for Conciliation and Certificate of Unresolved Dispute was issued. The Respondent then filed an application in the Industrial Court for determination of the Unresolved dispute.
During determination / trial at the Industrial Court. The appellant was represented by the offices of Maduduza Zwane Labour Law Consultancy and the Respondent was represented by the offices of Mkhwanazi Attorneys. The Appellant’s representative closed its case in the Industrial Court and the Respondent also closed its case.
After both parties have closed their cases, the Appellant then appointed the offices of Magagula Hlophe Attorneys to represent them in the matter. The Appellant’s attorneys moved an application on the 7th May 2020 to re-open its case to lead one witness by the name of Thulisile Mlotsa who was the Chairperson of the disciplinary hearing.
The application to re-open the case was granted by the Industrial Court at the instance of the Appellant’s attorneys wherein the Chairperson was led by the Appellants’ attorney, Mr Sabela Dlamini.
In the application to re-open the case, the Chairperson of the hearing, Thulisile Mlotsa deposed to a confirmatory affidavit confirming that during the disciplinary hearing he found the Respondent guilty in part because of the evidence of Chakazile Hlophe who testified in the disciplinary hearing that the employee (Respondent) assaulted the complainant Nonkululeko Shongwe.”
Counsel for both parties submitted their arguments before us on 26th August 2020 and relied on their Heads of Arguments filed in the appeal. An Application for condonation for the late filing of Heads of Arguments by the Appellant was heard and the Court granted the said Application and the matter then proceeded to the merits of the appeal.
At the commencement of those arguments this Court posed a jurisdictional question under section 14 and 15 of the Court of Appeal Act No. 74/1954 on whether the Appellant ought to have first proceeded in terms of the said Act. This Court then ordered Counsel of the parties to file supplementary Heads of Arguments on this point regarding the jurisdiction of this Court.
I must mention that on this point the attorney for the Appellant filed short Heads of Argument a few days after the Court’s enquiry. However, Counsel for the Respondent had conceded in argument that the appeal before Court was proper.
In view of this therefor I shall proceed to deal with this part of the submission made by the Appellant and thereafter deal with the merits of the Appeal.
The jurisdictional threshold
Counsel for the Appellant as regards the enquiry by the Court first outlined the provisions of section 14 of the Court of Appeal Act as cited under the heading “right to appeal in civil cases” to be the following:
14.(1)An appeal shall lie to the Court of Appeal –
(a)from all final judgments of all the High Court; and
(b)by leave of the Court of Appeal from an interlocutory only order, an order made ex parte or an order as to costs only.
(2)The rights of appeal given by sub-section (1) shall apply only to judgments given in the exercise of the original jurisdiction of the High Court.
Counsel for the Appellant contended that the right of appeal from the High Court’s civil appellate jurisdiction that a person aggrieved by a judgment of the High Court in its civil appellant jurisdiction may appeal to the Court of Appeal with leave to the Court of Appeal or upon the Certificate of the Judge who heard the appeal, on any ground of appeal, which involves a question of law but not on a question of fact. Various arguments are advanced by Counsel for the Appellant at paragraphs 2 to 10 of the said Heads of Arguments.
Counsel for the Appellant contends amongst other things, that sections 14 to 15 of the Court of Appeal Act pertain to appeals as distinguished from review. Counsel referred to High Court case of Derrick Dube and Ezulwini Municipality (91/2016)  SZSC 49 the dictum in the following terms:
3.1“it should be noted that the court on review is not concerned with the merits or demerits of the decision reviewed: “…review concerns the regularity and validity of proceedings, whilst appeal concerns the correctness of the decision arrived at in legal proceedings in respect of the relief claimed therein and, as such, are distinct and dissimilar remedies. They are also irreconcilable remedies in the sense that, where both are available, the review must be disposed of first as, if the correctness of the judgment appealed against is confirmed, a review of the proceedings is ordinarily not available (see Mahomed vs Middlewick N.O. & Another 1917 CPD 539, 540; R v D and Another 1953 (4) SA 384 (A) at 390D – 391B.”
Counsel for the Appellant furthermore contends that the power of review is vested in the High Court by section 4(1) of the High Court Act 20/1954. In contrast, the power of appeal in the same court is vested by section 5 of the High Court Act.
That the vesting of a right of appeal against the decision of the Industrial Court to the Industrial Court of appeal excludes the High Court from the contemplation of section 14(2) of the Court of Appeal Act altogether. The express mention of appeals excludes reviews.
It would appear to me that Counsel for the Appellant is correct that the purpose of leave to appeal has neither been frustrated nor has the Respondent been prejudiced by the absence of leave to appeal. In fact, the Respondent has fully anticipated her defence on the merits before this court.
Furthermore Counsel for the Respondent in argument before this Court conceded that the Appellant has a right to appeal to this Court without leave.
Indeed the decision of the court a quo was a final judgment arising from its original jurisdiction as a review court to circumstances where the Appellant jurisdiction contemplated by section 15 of the Court of Appeal Act does not arise or is expressly excluded. Therefore I shall proceed to consider the merits of the appeal between the parties.
(i)The Appellant’s arguments
Counsel for the Appellant contends firstly that at all material times, the primary issue to be determined was whether or not the employee was “guilty of violence, threats on ill-treatment towards a fellow employee” (Nonkhululeko Shongwe) at the employer’s cash office at Mbabane branch within the context of section 36 (b) of the Employment Act.
Counsel for the Appellant contends in this regard that it is common cause that apart from the protagonists themselves in the physical encounter, two other employees of the employer witnessed the fight between the protagonists. These are Chakazile Hlophe and a certain Bongiwe Mlotsa (also known as Mumu) who regrettably passed away before the Industrial Court hearing. A Manager in the employer’s undertaking, Simon Ndzinisa, who came shortly after the physical encounter of the episode regrettably also passed away.
That it is indisputable that Chakazile Hlophe’s evidence at the disciplinary hearing contradicted her evidence in the trial ((Industrial ) Court hearing.
It is clear that the court a quo did not deal with this omission at all notwithstanding that it was the Appellant’s fundamental challenge. Therein lies the misdirection which acuminates to a denial of the employer’s right to be heard.
19.1Section 21(1) of the Constitution of the Kingdom of Eswatini 1/2005 which provides that:
“In the determination of civil rights and obligations or any criminal charge a person shall be given a fair and speedy public hearing within a reasonable time by an independent and impartial court or adjudicating authority established by law.
19.2“the audi alteram principle i.e. that the other party must be heard before an order can be granted against him is one of the oldest and most universally applied principles enshrined in our law. That no man is to be judge unheard was a precept known to the Greeks, was inscribed in ancient times upon images in place where justice was administered, is enshrined in the scriptures, as asserted by an 18th century English judge to be principle of divine justice and traced to the events in the Garden of Eden, and has been applied in cases from 1723 to the present time..”
19.3“…an application to set aside an invalid order which is in violation of one’s rights would seem to us per se a matter of urgency and eminently demanding urgent relied.”
The attorney for the Appellant went on at great lengths to attack the evidence of one Chakazile Hlophe that it can not be denied that her evidence at the disciplinary hearing contradicted her evidence in the trial (Industrial) Court hearing. Such arguments are canvassed in paragraphs 8 to 30 of Counsel’s Head of Arguments.
The attorney then dealt with the issue of procedural unfairness being the representation of accused employee and the chairlady of the appeal hearing. The arguments are captured at paragraph 40 to 42 thereof.
In summary at paragraph 47 it is contended for the Appellant that the unlawful intention to apply force or inspiring the belief that force was imminent was established and the court a quo should have found that employee was guilty of violence, threats or ill treatment towards Nokhululeko Shongwe, within the meaning of section 36(b) of the Employment Act no. 5 of 1980 as amended to the following:
It shall be fair for an employer to terminate the services of an employee for any of the following reasons:
(b)Because the employee is guilty of a dishonest act, violence, threats or ill treatment towards his employer, or towards any member of the employer’s family or any other employee of the undertaking in which he is employed.
(ii)The Respondent’s arguments
On the main argument it is contended for the Respondent that the court a quo did not fail to take into account, as it was enjoined to consider, in terms of section 36 (b) of the Employment Act no. 5/1980 as amended, in view of the fact that the evidence established by the Appellant failed to show that the Respondent unlawfully applied force on a fellow employee.
That the evidence placed before court by the Appellant did not justify that there was any unlawful force or assault applied by the Respondent to the complainant (Nonkululeko Shongwe) or any violence thereat or ill-treatment.
That in her evidence, the Respondent testified that they only contended for the possession of the key with the complainant which had fallen down during the argument after Nonkululeko Shongwe refused to obey instructions from her supervisor, the Respondent.
Counsel for the Respondent went further in detail analysing the sequence of events between the parties in paragraphs 17 to 20 of the Heads of Arguments of Counsel for the Respondent.
Counsel for the Respondent then dealt with the issue of the evidence of cellphone damage that during the hearing on the 10th April, 2002 at the Appellant’s office, charges were read to the Defendant) Respondent and she was charged with misconduct and violent behaviour. Appellant argued that the court a quo ignored the evidence of the cellphone. In this respect, the Respondent contends that the Respondent in the court a quo was never charged with damage of property by the Appellant. The cellphone damage of criminal offence is not relevant to the matter before court.
Counsel for the Respondent went further in arguments to include the issue of procedural fairness, appeal court decision in paragraph 36 to 61 of the Heads of arguments. The final topic being that of re-instatement that the Industrial Court has a wide discretion where it determined a claim for re-instatement, that the court a quo correctly held that the court was correct to order re-instatement of the Respondent.
The Court’s analysis and conclusions
In my analysis of the papers and the arguments of the parties; firstly I am in agreement with the arguments of Counsel for the Appellant in the framing of the issue for decision by this Court. That at all material times, the primary issue to be determined was whether or not the employee was “guilty of violence, threats or ill-treatment towards a fellow employee” (Nonkululeko Shongwe) at the employers’ cash office at Mbabane branch within the context of section 36 (b) of the Employment Act.
Both Counsel before us have advanced arguments which are opposed to each other. Appellant Counsel contended that the employer proved in the court a quo that such infringement occurred after showing that the crucial witnesses who gave evidence in that court contradicted themselves in a number of respects. In this regard Counsel for the Appellant at great length challenged the testimony of one Chakazile Hlophe and one Nonkululeko Hlophe. The argument for the Appellant in this regard is that the contradiction established in respect of Chakazile Hlophe’s evidence on the material issue of the disputed physical encounter between the evidence and her colleague Nonkululeko Shongwe irredeemably destroyed her credibility. In the circumstances, the employer’s version should have prevailed as non-challenge of Thulisile Mlotsa ‘s evidence carried with it the inevitable rejection of Chakazile Hlophe’s evidence which was irreconcilable with Thulisile Mlotsa’s. In this regard this court was refered to the Supreme Court case Orion Hotels (Pty) Limited t/a Pigg’s Peak Hotel and Casino vs Mag air CC case no. 20/2010.
On the other hand Counsel for the Respondent contends that the unlawful intention to apply force or inspiring the belief that force was imminent was never established and the court a quo correctly held that Respondent was not guilty of violence, threats or ill treatment towards Nokhululeko Shongwe, within the meaning of section 36(b) of the Employment Act 5/1980.
That the court a quo did not arrive at these conclusion capriciously. That it reached the decision based on the evidence placed before it. That it is responsibility of the Appellant to produce clear and unequivocal evidence to support its case that it terminated the Respondent services because she was guilty of committing violence in terms of the Act.
 Counsel for the Respondent further contended on this point that if the Appellant is unable to determine whether what Miss Shongwe suffered was violent or not. The Appellant categorization of the events changes form as one perused the Founding Affidavit. In paragraph 23 of the Heads of Arguments of the Respondent Counsel lists the following:
For example, at paragraph 14 Mr. Tsabedze calls it “physical confrontation”, at paragraph 15 he calls it an “altercation” and “physical encounter”, at paragraph 17.2 “physical restraint” (in the same paragraph) at paragraph 19 “blocked her way”, at paragraph 20 “force” or “inspiring the belief that force was imminent,” and in the same paragraph “violence, threats or ill-treatment” at paragraph 29.2 “a fight … the former trying to lock the door whilst the latter was trying to unlock it,” at paragraph 30 “assaulted Shongwe.
It would appear to me on these facts as contended by the Respondent that there was never any physical confrontation between the Respondent and the Appellant’s witnesses (Nonkululelo Shongwe) at the cash office of the Appellant. That it was only a struggle or scuffle between the two over possession of the keys. In this regard I agree with the Respondent’s contention that a struggled over possession of keys is nowhere close to an assault. Therefore, in these circumstances it is not clear if the Respondent was the aggressor as both the Appellant’s witness and Respondent struggle over possession of the key with the Respondent trying to take it and Nonkululeo Shongwe also trying to take it. If the struggle is referred to as an assault then both of them should have been charged with assault.
It will also appear on the papers that the same disciplinary hearing minutes that were submitted at by Appellants do not mention any assault by the Respondent. The chairperson of the hearing Miss I. Mlotsa relied on the same minutes and she went to lie on oath that Chakazile Hlophe testified in the disciplinary hearing that the Respondent assaulted the complainant Nonkululeko Shongwe as stated at page 132, last paragraph of the Record of Appeal.
Furthermore on this point in both affidavits filed by Miss I. Mlotsa, it is denied that Chakazile Hlophe testified that the Respondent assaulted the complainant. A true reflection of what actually transpired found in the disciplinary hearing minutes.
In this regard I agree with the contention of the Respondent’s Counsel that the Industrial Court did not consider the evidence of Thulisile Mlotsa as it is clear and indicated in its judgment, its only that it did not consider it in favour of the Appellants.
In this regard I am also in agreement that the court a quo did not on err in disregarding the evidence of Thulisile Mlotsa on Chakazile’s credibility and reliability.
I shall proceed to consider the remaining grounds of appeal for the sake of completeness as Counsel for the Appellant in submission has stated the main focus of the appeal is what is stated above in paragraph .
The remaining grounds of appeal as contended by the Appellant are, firstly, the evidence of cellphone damage as stated at page 73 of the Record of Appeal, secondly of the question of procedural fairness as stated at paragraph 36 of the Respondent’s Heads of Arguments, thirdly the question of the appeal chairperson and, fortly the issue of Respondent given three (3) minutes to find representation and fifthly and lastly, the question of re-instatement. I will deal with each question one after the other in the following sub-paragraphs.
(i) Evidence of cellphone damage
The Appellant contended that the court a quo ignored the evidence of cellphone damage which cellphone was allegedly damaged by the Respondent. It is contended for the Respondent on the other hand that the Respondent was never charged for damage with property. It would appear to me that the Respondent is correct in this regard that the court a quo was correct that the issue of the cellphone damaged or similar offence is not relevant to the issue for determination by the Court.
(ii) Procedural fairness
In this regard it is contended for the Respondent in her papers that her Manager informed her that since she was part of management, “the procedure at Cashbuild was that someone from another branch was supposed to come so that she could chair the hearing but that did not happen, instead she got a consultant who was going to chair the hearing.”
It is common cause between the parties that procedure was not followed as an outsider was called to hear the disciplinary hearing. This was contrary to the company’s own laid down procedures which they ought to have followed at the first instance. However, the company elected to deviate from it (the company procedures) and appointed an outsider to chair the disciplinary hearing. Therefore, for these reasons the Respondent is correct that justice was compromised.
(iii) Appeal chairperson
At page 144 of the Court Record the Respondent testified that after Mr. Ndzinisa and given the dismissal letter, he told her that if she was not satisfied with what was written down, she could appeal to the Divisional Manager. The Respondent filed an appeal but it never went to the Divisional Manager, but went to Maduduza Zwane (consultancy firm) and Maduduza Zwane manager to hear the appeal and dismissed the appeal.
In this regard I agree with the Respondent’s contentions on these facts that the Respondent was not given a fair hearing. In this regard I agree with the Legal Authority Riekert J. Riekert’s Basic Employment Law 2nd Edition (Juta), 1993 page 107.
“--- an employee is entitled to both a fair hearing and a fair appeal”.
In my view after I have considered the arguments of Counsel for both parties. There was grave injustice that occurred in this case where it is clear that, when the disciplinary hearing Chairperson, Mrs T. Mlotsa sat as chairperson at the disciplinary hearing she did so in her capacity as an employee in the consultancy firm (Maduduza Zwane consultancy) she had an independent contract with the Appellant to chair the hearing. She sat as an extension of the arm of Maduduza Zwane Labour Consultancy, and this has not been denied by the Appellant.
In this regard I am in agreement with the arguments of the Respondent’s Counsel in paragraphs 43 to 53 of the Heads of Arguments and that the legal authority in Le Roux (supra) and page 170 is apposite where the learned author states the following legal principle:
“The appeal must be seen as separate facet of the disciplinary procedure. Thus, in situation where person who played a role in the original proceedings, also take part in the appeal hearing, this may be regarded as unfair,”
The Appellant’s conduct to appoint two officers from the same consultancy firm one to conduct a disciplinary hearing, and the other to conduct an appeal resulted in an irregular and an unfair hearing. The Respondent was denied a fair hearing and the court a quo was correct as regards this aspect of the matter.
(iv) Three minutes to find representation
It is contended for the Respondent that she was denied a right of representation at the disciplinary hearing. The Respondent had to secure a fellow employee to represent her at the disciplinary hearing by the name of Sandile Siyaya. However at the last minute. Mr Siyaya withdraw his services. The Respondent informed the Chairperson that her representative had withdrawn, for fear of being victimized by his employer and she asked for time to find a new representative.
The Chairperson gave her three (3) minutes to find a new representative one Muzi who had no idea of what was happening and he sat quietly at the hearing without contributing anything. The appellant has not opposed these allegation by the Respondent. Therefore I agree in toto with the Respondent arguments that this vitiated the whole procedure adopted by the Appellant (see Gregan supra) at page 343). That it is the position of the law that an employee should be allowed sufficient time to identify a work colleague, who the employee has confidence in, to serve as a representative and be allowed sufficient time to consult in private with the chosen representative, in order to fully prepare for the hearing. The employee must be allowed to consult potential witnesses some of whom may be work colleague and wishing to testify. The three (3) minutes that was given to the Respondent to do all this was unrealistic, unreasonable and unfair. The Chairperson never explained the reason not to postpone the hearing, to allow Respondent enough time to obtain a new representative of her own choice. The action was so draconian that it could not be countenanced by the court a quo and this Court also agrees with the Court below in this regard.
The issue of re-instatement was canvassed at the Conciliation Mediation and Arbitration commission (CMAC) as stated at page 151 and 123 of the Court Record.
The Respondent claimed re-instatement both in her pleadings and evidence. The
Appellant replies to the Respondent’s Particulars of Claim, the Appellant never objected to the claim for re-instatement, neither did they tender any evidence during trial to challenge the issue of re-instatement.
In my assessment of the parties arguments in this regard I agree with the Respondent that the Industrial Court has a wide discretion when it determines a claim of re-instatement. The court a quo correctly held that the Court had the power to order re-instatement of the Respondent.
In the result, for the above reasons the appeal is dismissed with costs.
S.B MAPHALALA JA
S.P. DLAMINI JA
I ALSO AGREE_______________________
J.M. CURRIE AJA
For Appellant:Mr. Sabela Dlamini
(from Magagula and Hlophe Attorneys)
For Respondent:Mr. I. Motsa
(from Mkhwanazi Attorneys)