Swaziland: Court of Appeal

HELD AT MBABANE                             Appeal Case No. 10/2002


In the matter between

COUNCILLOR MANDLA DLAMINI        1^st Appellant
MANZINI CITY COUNCIL                       2^nd Appellant

And

MUSA NXUMALO                                Respondent


Coram                                                 LEON, JP;

STEYN, JA;
TEBBUTT, JA

That the decision and proceedings of the 2^nd Respondent terminating applicants’ employment services with the former sent under cover of a letter dated 26^th January 2000 be reviewed and/or corrected and/or set aside.

(b)     

Costs

(c)     

Further and/or alternative relief.

The matter came before MATSEBULA J in the High Court who granted the following order:

It is against that order that the appellants have appealed.

It will be convenient to refer to the parties, as they were in the Court a quo, as the applicant and the 1^st and 2^nd respondents respectively.

It is common cause that on 26 January 2000 the 2^nd respondent dismissed the applicant from its employment following a disciplinary hearing on 21 and 22 December 1999. It is also common cause that the 1^st respondent was the Chairperson of the duly appointed sub-committee of the 2^nd respondent to hear and determine disciplinary proceedings brought against the applicant. The disciplinary proceedings followed upon the following charges levelled against the applicant:

1.      

On Saturday 9 October 1999 and at approximately 6.45 a.m. he wrongfully, unlawfully and maliciously and in contravention of section 111 3(1)(I) and section 111 3(1)(O) read with section 36 of the Employment Act of 1986 and the Staff Standing Orders for Officers, caused damage to residential property occupied by the Town Clerk by striking the door and the windows with an axe causing them to break.

An alternative charge followed.

2.      

On the same day it was alleged that the applicant had wrongfully, unlawfully and intentionally threatened the Town Clerk with bodily injury and death and attempted to run him over with a motor vehicle.
3.       At about the same time, on the same date and place, the applicant wrongfully, unlawfully and intentionally and falsely accused the Town Clerk, Mr. Terry Parker, of:

(i)     

owing him the sum of E10 000; and
(ii)     being corrupt and guilty of committing irregularities at his place of work

contrary to the provisions of section 111 3(1)(e) of the Staff Standing Orders.

There followed an alternative charge.

In his application the applicant launched a number of attacks upon the conduct of the proceedings. He complains that they were conducted unfairly and irregularly and that such irregularities are fatal. He also objected to the fact that the Minister for Housing and Urban Development never called upon him for an explanation before approving the decision of the City Council which the Minister did in terms of Urban Government Act No.8 of 1969. However, the Minister is not a party to these proceedings.

The applicant’s main complaint is that he was unfairly refused a postponement after his attorney had withdrawn and given too little time (three working days) to engage another legal representative particularly in the middle of December when many legal firms were closing down for the Christmas holidays.

The learned judge a quo based his decision solely and exclusively on the fact that the 2^nd respondent had erred in not affording the applicant a postponement in order that he could be legally represented. I shall later deal with the chronology on this topic. Before dealing with the facts MATSEBULA J referred to section 18 of Part IV relating to Disciplinary Powers of Council. The section reads:

The High Court Rule of 1954, dealing with reviews, states:

“Provided that the High Court shall not set aside the proceedings of the Council by reason only of an irregularity which did not embarrass or prejudice the applicant in answering the charge or the conduct of his defence.”

In holding that a postponement should have been granted the learned judge relied on cases such as Madnitsky v Rosenberg 1949(2) SA 392(A) where it was held that a postponement should generally be granted where an applicant’s unpreparedness has been fully explained, that there is no question of the application being based upon delaying tactics and that justice required that the applicant should be afforded further time to prepare his case.

MATSEBULA J stated that he was unable to make any findings on the merits of the matter precisely because the applicant was entitled to a postponement. He held further that the failure of the tribunal to grant the applicant a postponement was unreasonable, unfair, and based on unsustainable grounds to which I will later refer.

It now becomes convenient to refer to the relevant chronology.

The disciplinary proceedings began on 8 December 1999. At that time Mr. Samuel Earnshaw appeared for the 2^nd respondent while Mr. Ntiwane appeared for the applicant. It was pointed out that Mr. Earnshaw’s partner was the Mayor of Manzini and that if Mr. Earnshaw continued to act, that would be contrary to section 24(3) of the Urban Government Act. Mr. Earnshaw then withdrew. The date of 8 December 1999 had been agreed to due to the availability of Mr. Ntiwane who was unavailable on certain earlier dates which had been suggested. No new date was arranged on that date.

On 10 December the Human Resources Manager of the 2^nd respondent wrote to Mr. Ntiwane’s firm advising him of the new date of hearing being 14 December 1999 at 10.00 a.m., the letter stating that it was in the best interests of all parties that the matter be heard that day. The letter ends:

“Please confirm in writing your availability and fax to us today as you said after the 17^th December, 1999 you will be not available.”

Mr. Ntiwane that afternoon faxed a reply confirming his availability.

Unfortunately Mr. Ntiwane was not able to get in touch with the applicant, as, unknown to Mr. Ntiwane, he had gone to a wedding at Mahlanya for the weekend returning to his home on the afternoon of 14 December 1999 and only became aware of the fact that the disciplinary proceedings were due to commence at 10.00 a.m. that day when his attorney apprised him of that fact on the afternoon of 14 December. These facts are not disputed in the opposing affidavit by the 1^st respondent; he merely states that the facts are unknown to him.

On 14 December 1999 Mr. Ntiwane, having at that stage been unable to contact the applicant, applied for a postponement until January 2000. He indicated that his office was closing down for the Christmas holidays on 17 December. It was suggested to Mr. Ntiwane that the matter proceed on 15 and 16 December but Mr. Ntiwane stated that he had a large practice to run and was not available on those dates. If the Council insisted that the matter proceed on those dates he would be forced to withdraw as the applicant’s attorney.

Nevertheless the Council determined that the matter had to proceed..

On 14 December 1999 the 2^nd respondent wrote to the applicant advising him that the disciplinary hearing would proceed on 21 December 1999 with or without his representative and whether the applicant was present or not. The applicant received the letter on the afternoon of Wednesday 15 December 1999, which gave him three working days in which to engage the services of another attorney.

A copy of the letter was sent to Mr. Ntiwane who faxed a reply to the 2^nd Respondent on 16 December 1999. In the letter Mr. Ntiwane reiterated that he would not be available on 21 December 1999 as his offices closed on 17 December 1999. He went on to write that it was unfortunate that the 2^nd respondent was proceeding with the hearing in the absence of legal representation. He also placed on record that it was unreasonable in the circumstances to expect the applicant to engage the services of another attorney at such short notice particularly as the attorneys were closing their offices for the festive season.

The result of all this was that when the applicant appeared on 21 December 1999 he had no attorney. It appears from page 22 of the record that the applicant then applied for a postponement saying that he had briefed a particular attorney and that it was unreasonable to expect him to engage the services of another attorney at such short notice particularly during the festive season when the attorneys’ offices were closed. He only sought an adjournment for two weeks.

Much of the record of the disciplinary proceedings is described as “incomprehensible” and sometimes “inaudible” but it is common cause that the applicant’s application for a postponement was refused.

One of the reasons given for refusing a postponement was that the Council was still paying the applicant a salary. However, according to Annexure “CCN4” it had been resolved on 16 December 1999 that the applicant’s salary be withheld during the period of his suspension as from 1 January 2000.

The facts which I have outlined above are substantially common cause although each side has given a different emphasis to them. The 1^st respondent swore an affidavit on behalf of the 2^nd respondent and he was also the Chairman of the sub-committee investigating the charges against the applicant. In justification of the decision not to grant the applicant a postponement he stated in paragraph 18 of his affidavit:

“Ad paragraph 6.9

I admit the contents hereof and add that Council has to conclude the hearing before the end of that year. It was important for the situation at Council to be normalised as there is a whole department that did not have a head. Moreso the department in question was a crucial one which always required consent (sic) availability of incumbent as it concerned advising (sic) the City Council on an almost daily basis.”

In reply to that paragraph the applicant in paragraph 27 of his answering affidavit stated:

“I submit that a two (2) week postponement would not have been prejudicial to the interests of the Respondents. It is submitted that by that time I had been on suspension for a period of three (3) months. Surely a further two (2) weeks would not have been prejudicial (sic) the interest of the Respondents.”

The “unsustainable grounds” by the sub-committee for refusing a postponement upon which the Court a quo relied were:

(a)     

that the applicant himself was a lawyer;
(b)      that his erstwhile attorney should have handed the file to another lawyer so that the sub-committee would not have had to entertain the application for a postponement at that moment. A member of the committee even asked what the applicant would have done if his attorney had died.
(c)      Counsel for the Council advanced as one of the grounds for refusing a postponement that the respondents were still paying the applicant a salary (I have already dealt with this point).
(d)      The applicant was refused copies of certain documents in his file. (This is disputed by the sub-committee).

The court a quo was of the view that the respondents had been influenced by wrong principles and had misdirected themselves on the facts. If the discretion had been properly exercised a postponement would have been granted.

Mr. Flynn, who appeared for the Chairman of the subcommittee and the Council, submitted that the City Council as the employer has a number of options as to who is to enquire into misconduct on the part of employees. He contended that the hearing granted to the employee is not conducted by a statutory body, tribunal or officer and is therefore not subject to review by a court. In this regard he relied upon Davies v Chairman, Committee of the JSE 1991(4) SA 43(W) at 46G-H and Johannesburg Consolidated Investment Company v Johannesburg City Council 1903 TS 111 at 115.

It was further contended by Mr. Flynn that the Court a quo’s reference to Part IV Disciplinary Powers of Council, Section 18, was misplaced because the Council there referred to was not a City Council but one elected by the Institute of Accountants under Act No. 5 of 1985.

The next point argued by Mr. Flynn was that in granting an order setting aside the applicant’s dismissal and ordering that the matter proceed de novo the Court a quo had usurped the function of the Industrial Court which had sole and exclusive jurisdiction in respect of employment matters. He contended that Section 8(1) of the Industrial Relations Amendment Act No 8 of 2000 ousted the review powers of the High Court.

In the alternative it was submitted that if it were held that the High Court did have jurisdiction to review the decision of the City Council’s subcommittee, it would be necessary to show that the decision of the tribunal was so grossly unreasonable as to warrant the inference that it had failed to apply its mind to the matter.

In this regard reliance was placed on Davies’ case (supra) at page 47D and National Transport Commission v Chetty’s Motor Transport (Pty) Ltd 1972(3) SA 726 at 735E-G. This was a formidable onus. Reliance was also placed on Takhona Dlamini v President of the Industrial Court and Another, Swaziland Court of Appeal Case No. 23/1997. In elaboration of this argument it was contended that it was necessary to show that there had been a failure of justice. (Davies’ case (supra); Jockey Club of South Africa & Others v Feldman 1942 AD 340 at 359.)

It was further submitted by Mr. Flynn that the court a quo itself considered the merits of the application and substituted its own decision for that of the committee. He argued that the court a quo interfered on the basis that the decision was one which it would not have arrived at. In so doing it erred by considering the merits of the decision and pronouncing on its correctness.

Mr. Flynn also relied upon the fact that there was no obligation upon the Council or its subcommittee to allow the applicant legal representation. However, it did so. It is true that at common law there is no general right to legal representation and that, unless required by statute, it is generally a matter in the discretion of the tribunal. However, in a disciplinary case where the charges are serious and the consequences of conviction are harsh, the court is likely to require a higher standard of fairness from the decision-maker. Each case has to be dealt with on its merits. In Dladla v Administrator, Natal 1995(3) SA 769 (N) Didcott J found that the applicants’ need for a lawyer to defend them in disciplinary proceedings was strong in the circumstances. Their jobs and livelihood were at stake, their disadvantage was aggravated by differences of race, culture, language and background and the tribunal itself lacked independence.

I find it unnecessary to decide, in the present case, whether the Council or the sub-committee was obliged in law to allow the applicant legal representation. What is important is that the applicant was allowed legal representation and, at material times, was represented by Mr. Ntiwane who was steeped in the case and had been acting for the applicant for some weeks. It may safely be inferred that all the necessary consultations would have been held by him.

The first question is whether the decision in Johannesburg Consolidated Investment Co v Johannesburg City Council (supra) affects the position. In that case INNES CJ (who delivered one of the majority judgments) said this at page 115:

“Whenever a public body has a duty imposed upon it by statute and disregards important provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance of the duty, this Court may be asked to review the proceedings complained of or comment thereon. This is no special machinery created by the legislature; it is a right inherent in the Court, which has jurisdiction to entertain all civil proceedings arising within the Transvaal.”

That passage was reproduced by ZULMAN J in Davies’ case (supra) at page 47B. In that case the learned Judge also referred to the limited jurisdiction which a Court had in review proceedings and supervises administrative action in appropriate cases on the basis of “gross irregularity” i.e. an irregularity so grossly unreasonable as to justify the inference that the body concerned