IN THE INDUSTRIAL COURT OF SWAZILAND

HELD AT MBABANE					CASE NO. 311/2007

In the matter between:

SAZIKAZI MABUZA						Applicant
and

STANDARD BANK OF SWAZILAND LIMITED			1st Applicant
ERROL NDHLOVU N.O.						2nd Applicant

CORAM:

P. R. DUNSEITH 		:	PRESIDENT
JOSIAH YENDE		:	MEMBER
NICHOLAS MANANA	:	MEMBER

FOR APPLICANT		:	P. FLYNN
FOR RESPONDENT	:	P. KENNEDY

J U D G E M E N T  - 10/08/07

1.		The Applicant is employed by the 1st Respondent as its Head of Human Resources. She is a senior managerial employee and a member of the 1st Respondent’s Executive Committee (“Exco”) which consists of all the senior executives who head the various business units of the 1st Respondent Bank.

2.		On the 29th June 2007 the Applicant received a letter from the Managing Director of the 1st Respondent requesting her to attend a disciplinary enquiry to be held on 4th July 2007.  The letter states that the Applicant is required to answer to charges of “Dishonesty as well as Abuse of Authority, Seniority and Trust making misrepresentations.”

3.		Particulars of the charges are set out in the letter, which goes on to state:

“The Bank views these charges against you very seriously.  Please note that should this be sufficiently proven against you at the hearing you will be summarily dismissed.

You are entitled to have a representative of your choice (for example a fellow employee) and to call any witnesses that you may consider necessary….”

4.		On or shortly after 29th June 2007 the Applicant received a second letter from the Managing Director couched in similar terms and supplementing the charges contained in the previous letter with three new charges; dishonesty, concealing vital information, and bringing the name of the Bank into disrepute.  

This letter repeats that the Bank views the charges very seriously and should the charges be proven the Applicant will be summarily dismissed. It also reiterates the Applicant’s entitlement to have a representative of her choice (for example a fellow employee) to represent her at the enquiry.

5.		The Applicant attended the enquiry on 4th July 2007 accompanied by her attorney.  The enquiry was chaired by the 2nd Respondent, who introduced himself as a “Senior Consultant Labour Relations based in Johannesburg.”  The bank was represented by Mr. Henk Nel, Manager Forensics of Standard Bank Africa. He was assisted by Mr. Mavela Motsa, the 1st Respondent’s Manager Forensics.

6.		At the commencement of the hearing the chairman pointed out to Applicant’s attorney that it was an internal hearing and the attorney should justify his presence. Arguments then ensued as to the Applicant’s entitlement to legal representation.

7.		The Applicant’s attorney advanced the following reasons for his client to be represented by an attorney:

7.1		The Applicant is entitled to be represented by a fellow employee, but that employee should be of equal status. Since the Applicant is a senior manager and a member of Exco the only fellow employees of equal status are Exco members,  but for one reason or another it is not possible nor appropriate for any of the Exco members to represent her;

7.2		The managing director of the Bank is the complainant against the Applicant, in the sense that the charges have been initiated by him, and he is a material witness at the enquiry.  An employee representative would find it difficult to confront his/her managing director at the enquiry;

7.3		The charges against the Applicant are regarded as very serious by the Bank and if proved will result in summary dismissal;

7.4		There is no prejudice that the Bank will suffer if the Applicant is permitted legal representation.

8.		In opposing the application, the Bank’s representative answered as follows:

8.1		The charges are not complex but are straightforward;

8.2		There are a number of fellow employees of equal  status and higher in the Bank who could represent the Applicant;

8.3		The Bank would be prejudiced because this was an internal enquiry and it would set an unfortunate precedent if the Applicant were allowed legal representation;

8.4		The Applicant herself had objected to legal representation or representation external to the Bank in disciplinary proceedings pertaining to other employees.
 
9.		The Banks representative conceded that the Managing Director will be a witness at the enquiry and that he could be regarded as the complainant because he signed the letter instituting the disciplinary proceedings.

10.		The chairman of the enquiry considered the submissions and ruled that the Applicant had no right to legal representation in an internal disciplinary hearing, but the chairperson may exercise a discretion in favour of granting legal representation after taking into consideration all relevant factors. He found that a case for legal representation had not been made out for the following reasons:

10.1	There are employees at the Applicant’s level and above in the Standard Bank Group who are eligible to represent the Applicant, so the question of representation cannot be confined to the Bank in Swaziland.

10.2	The Managing Director cannot be regarded as the complainant.  The complainant is the Bank itself.

10.3	The general rule is that an employee may be represented at a disciplinary enquiry by a fellow employee.  This also applies to employees facing the possibility of a dismissal. There is no reason for the Applicant to be given exceptional treatment.

10.4	The charges do not involve questions of law, but only concern factual matters arising between employer and employee.

10.5	The Bank’s representatives are from the forensic and internal audit divisions of the Bank. The Applicant can adequately meet the factual case adduced by her colleagues.

11.	The enquiry was thereafter adjourned to enable the Applicant to arrange for representation by a fellow employee. After the adjournment the Applicant was called to a meeting with the Managing Director of the Bank.  The chairman of the enquiry was present.  He expressed the opinion that it would be in the best interests of the Applicant for the matter to be settled without a disciplinary hearing.  He offered to broker a settlement.  An offer was made to the Applicant which she declined.

12.	The Applicant thereafter instituted an urgent application in the Industrial Court, seeking a final order in the following terms:

12.	1	That the decision of the Second Respondent that the Applicant is not entitled to legal representation at the disciplinary enquiry is set aside.

12.2	That the Applicant is permitted to be legally represented at the disciplinary enquiry which the First Respondent intends to conduct.

12.3	That the contemplated disciplinary enquiry set for 13th July 2007 be held over to a date suitable to the representatives of both the Applicant and the First Respondent.

12.4	That the Respondents be ordered to pay the costs of the application.

13.	The Respondents agreed to stay the disciplinary enquiry pending determination of the application.

14.	In her founding affidavit the Applicant describes what transpired at the preliminary hearing on 5th July 2007.  She concedes that the chairman at a disciplinary enquiry has a discretion to decide whether the employee should be permitted legal representation, but she submits that the 2nd Respondent did not exercise his discretion fairly and judiciously.  She submits in particular that:

14.	1	It is unreasonable and impractical to expect the Applicant to seek a representative amongst employees of the Standard Bank Group outside Swaziland.  They are not known to her and she cannot entrust her representation to a person whose abilities  are unknown to her;

14.2	The chairman never properly took into account the difficulties arising from the involvement of the Managing Director as a witness at the enquiry;

14.3	The chairman also failed to take into consideration the likelihood that the Applicant will be summarily dismissed should the charges be sufficiently proven;

14.4	On the issue of comparable representation, the chairman should have considered that the Applicant will be disadvantaged if she is represented by a fellow employee whilst the bank is represented by two forensic managers.

15.	The Applicant also alleges that the chairman’s participation in the meeting after the adjournment of the enquiry compromised him and indicates that he was not impartial at the preliminary hearing on the question of legal representation.

16.	The 1st Respondent opposes the application.  In an answering affidavit deposed to by its legal adviser, the bank states that as Head of Human Resources the Applicant is well aware of the Bank’s disciplinary policies and procedures, which are contained in a set of guidelines applicable to the Standard Bank Group.  The relevant guideline with  respect to representation provides that an employee has the right to “be assisted by a trade union official or a work colleague when the alleged misconduct is of such a nature that it may lead to dismissal.”

17.	The 1st Respondent’s legal adviser points out that the guidelines do not provide for legal representation, so unless there are compelling circumstances in a particular case which justify a deviation from the norm, legal  representation is not permitted.  The legal adviser states that she is not aware of any case in which an employee of the Respondent has been represented by a lawyer in a disciplinary enquiry.

18.	The 1st Respondent submits that there is no justification for the Applicant to receive special treatment:

	18.1	She has a number of senior colleagues in Swaziland and in 			South Africa who are equal in status and capable of 				representing her;

	18.2	The mere fact that the Managing Director is a witness at the 			enquiry does not disqualify a Swaziland-based colleague 			from representing the Applicant;

	18.3	The Applicant has not taken reasonable steps to secure 			representation by an Exco colleague. The Head of Marketing 		Samuel Dlamini  is capable and willing to represent her,  and 		has made an affidavit to that  effect;

	18.4	The Applicant has frequent contact with senior level 				employees in the Standard Bank Group outside Swaziland 			and she could obtain representation from a foreign colleague 		within the Standard Bank Group who does not report to the 			Managing Director of the 1st Respondent.

	18.5	The Applicant is familiar with the disciplinary process due to 			her considerable experience in the field of Human 				Resources; the chairman and the bank’s representatives at 			the enquiry are not lawyers; and the charges do not involve 			any complexities of a legal nature. The Applicant will suffer 			no disadvantage if she is not legally represented.

	19.	With regard to the 2nd Respondent’s attendance at the meeting 		following postponement of the enquiry, the 1st Respondent denies that 	this indicates lack of impartiality and says that the issue can in any 	event be raised when the disciplinary enquiry resumes. The 2nd 	Respondent states in an affidavit that he participated in the meeting to 	assist in achieving a possible settlement, but if the Applicant objects 	to him continuing to act as chairperson he may recuse himself.

	20.	The Applicant filed a replying affidavit in which she details the reasons 	why in her view each of the Exco members are disqualified from 	representing her.

	21.	With regard to Samuel Dlamini she says it would be most 	inappropriate for him to represent her at the enquiry because he is 		lower in status, and he is currently acting in her position whilst she is 	suspended.

	22.	The Applicant states that the only personal interaction she has had 	with her colleagues outside Swaziland was during a conference over 	a period of one week.  In any event, these colleagues rely on union 	representation by the SA Society of Bank Officials (SASBO) and are 	not well versed in labour matters.

	23.	The matter was eventually argued on the 27th July 2007, and the court 	is indebted to counsel for their comprehensive and helpful 	submissions.

	24.	Both counsel are in agreement that there is no general right to legal 	representation at a disciplinary hearing but there may be special 	circumstances where fair disciplinary process requires that legal 	representation be afforded to the employee.

Simelane v National Maize Corporation (IC case No. 453/06 at page 3).

		“Whether legal representation is indispensable to ensuring a 	procedurally fair hearing is a discretion conferred on the chairperson 	of the enquiry. The chairperson must exercise that discretion 	judiciously having regard to all the circumstances of the particular 	case”  -  Majola v MEC,  Department of Public Works,  Northern 	Province & Others (2004) 25 ILJ 131 (LC).

	25.	In Simelane v National Maize Corporation (supra) the employer 	denied the employee legal representation.  The court directed the 	chairperson of the disciplinary enquiry to make a preliminary 	determination whether the Applicant was entitled to legal 	representation, and emphasized that neither the employer nor the 	court should usurp the discretion of the chairperson on this issue.

	26.	In the present matter before court, the chairman exercised his 	discretion by disallowing legal representation, and the court is being 	asked to overturn the decision of the chairman on the grounds that he 	did not exercise his discretion judiciously and fairly.

	27.	Mr. Kennedy for the 1st Respondent submits that it is undesirable for 	the court to intervene in an unconcluded disciplinary enquiry and to 	substitute its decision for that of the chairperson on an issue 	essentially interlocutory in nature.  He argues that if employees facing 	discipline are allowed to interrupt the proceedings by rushing to court 	for relief, this will “open the floodgates” to numerous applications from 	disgruntled employees seeking to obstruct the disciplinary process.

	28.	Mr. Kennedy also points to the general principle of law that in general,  	in the absence of compelling and exceptional circumstances an 	applicant should exhaust his or her alternative remedies before 	approaching the court. The procedural fairness of a disciplinary 	enquiry is best judged holistically at the end of the enquiry, and if the 	enquiry results in an employee’s dismissal he/she will be entitled to 	challenge the dismissal inter alia on the ground of procedural 	unfairness - including the unfairness of denying  legal representation.

	29.	The submission therefore is that the Applicant has an alternative 	remedy and she has prematurely and inappropriately rushed to court.

	30.	The attitude of the courts has long been that it is inappropriate to 	intervene in an employer’s internal disciplinary proceedings until they 	have run their course, except in exceptional circumstances.

This approach arises from a principle long established in our courts,  that as a general rule a superior court will not entertain an appeal or application for review,  when such appeal or review seeks to interfere with uncompleted proceedings in an inferior court.

Lawrence v Assistant Magistrate, Johannesburg 1908 TS 525;

Walhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A);

Ismail & Others v Additional Magistrate, Wynberg & Another 1963 (1) SA (1) A.

	31.	This general rule is however subject to a limited qualification. In 	Walhaus’ case (supra) at 119H-120E the court held:

“By virtue of its inherent power to restrain illegalities in inferior courts,  the Supreme Court may,  in a proper case, grant relief by way of review, interdict or mandamus – against the decision of a Magistrates Court given before conviction.  This, however, is a power which is to be sparingly exercised.  It is impracticable to attempt any precise definition of the ambit of this power; for each case must depend upon its own circumstances …. and will do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained …..”

	32.	The principle in the Walhaus case (supra) has been extended to apply 	equally in civil proceedings and in the labour law field

Newell v Cronje 1985 (4) SA 692 E at 699;

Towles, Edgar Jacobs Ltd v President, Industrial Court and Others (1986) 7 ILJ 496 (c) at 499 I-J;

Van Wyk v Midrand Town Council & Others 1991 (4) SA 185 (W);

Ndlovu V Transnet Ltd t/a  Portnet (1997) 18 ILJ 1031 (IC);

Moropane v Gilbeys Distillers & Vinters Ltd (1998) 19 ILJ 635 (LC);

Police & Prisons Civil Rights Union v Minister of Correctional Services and Others (1999) 20 ILJ 2416 (LC);

Mhlambi v Matjhabeng Municipality v Another (2003) 24 ILJ 1659 (O).

	33.	In Van Wyk v Midrand Town Council (supra at 189 C-D) Lazarus J 	stated:

“There is no difference between the principles applicable to interfering with criminal proceedings in a lower court and proceedings in a disciplinary enquiry before a disciplinary board.”

	34.	We do not think that any distinction can or should be drawn between 	statutory disciplinary tribunals and private disciplinary enquiries in the 	application of the Walhaus principles. The notion that the Industrial 	Court may intervene in uncompleted disciplinary proceedings “ in rare 	cases where grave injustice might otherwise result or where justice 	might not by other means be obtained” appeals to one sense of justice.

	35.	The intervention of the court, though in the nature of a review, is based 	upon the court’s power to restrain illegalities and promote fairness and 	equity in labour relations

Van Wyk v Midrand Town Council & Others (supra) 187-8

Section 8 (4) of the Industrial Relations Act 2000 as read with Section 4 (1) (b).

	36.	Whether the court will intervene depends on the facts and 	circumstances of each particular case. It is not sufficient merely to find 	that the chairperson of the disciplinary enquiry came to a wrong 	decision.  In order to justify intervention the court must be satisfied that 	this is one of those rare or exceptional cases where a grave injustice 	might result if the chairperson’s decision is allowed to stand. (see 	Weber and Another v Regional Magistrate,  Windhoek & Another 	1969 (4) SA 394 (SWA) at 399 D).

	37.	The possibility of the court being overwhelmed by a flood of ill-	conceived or undeserving applications for relief cannot justify the court 	refusing altogether to entertain applications for intervention in 	disciplinary proceedings – otherwise relief would be denied to those 	rare cases where a miscarriage of justice might otherwise occur.

	38.	It has been held that the failure to furnish sufficient particularity to 	disciplinary charges is likely to result in a grave injustice.

Van Wyk v Midrand Town Council & Others (supra) 188-9;

Mhlambi v Matjhabeng Municipality v Another (supra).

In Mhlambi’s case, Musi J said:
“To be able to prepare oneself for a hearing, be it a court trial or a disciplinary hearing,  is an ingredient of the right to a fair  hearing,   for without proper preparation one’s capacity to defend oneself is compromised.”

	39.	In the case of Rudolph v Mananga College (I.C. Case No. 94/2007) 	this court did not require an employee to wait until the termination of a 	disciplinary enquiry before challenging the refusal of a chairman to 	recuse himself.  We stated (at p.16) that the court has often expressed 	its reluctance to interfere with the prerogative of an employer to 	discipline its employees or to anticipate the outcome of an incomplete 	disciplinary process. At the same time, the court will interfere to 	prevent a procedural unfairness which may cause the Applicant 	irreparable harm.

	40.	In Van Wyk v Minister of Correctional Services & Others (2005) 26 	ILJ 1039 (E) at 1049 the court was prepared to review and set aside a 	decision to refuse legal representation because legal representation by 	a lawyer was necessary for a procedurally fair disciplinary hearing.  	However in Chamane v The Member of the Executive Council for 	Transport, Kwa-Zulu Natal & Others [2000] 10 BLLR 1154 LC it was 	held that there was no basis for the submission that a grave injustice 	would occur if the decision of the chairperson to disallow legal 	representation was not reviewed. Lyster J said that the employee was 	at liberty to challenge the decision of the chairperson once the 	proceedings were finalized, but it was not appropriate that he does so 	at an interlocutory stage.

	41.	We do not agree with this conclusion of Lyster J in Chamane’s case :

	41.1	In circumstances where procedural fairness requires that an 	employee be legally represented but such representation is denied, 	“it would follow inexorably that the ensuing enquiry would be 	vitiated at its inception and that all subsequent phases of the 	disciplinary proceedings would suffer the same fate.”

-per Marais J.A. in Hamata Peninsula Technicon Internal Disciplinary Committee and Others (2002) 23 ILJ 1531 (SCA) AT 1533 D.

	41.2	In our view, an unfair procedural decision which has so 			“pervasive and fatal an effect upon all phases of the 				disciplinary 	proceedings” (Hamata (supra) at 1533A) 			qualifies as one of those 	rare cases where grave injustice 			might result if the decision is 	allowed to stand.

	41.3	The potential injustice arising from an unfair denial of legal 			representation is certainly no less than the injustice that 			might result from lack of particularity in the charges so that 			the employee does not know what case he has to meet, or 			the prejudice that might result from a chairperson’s improper 			refusal to recuse himself. In none of these exceptional cases 		would justice be served by compelling the employee to go 			through a disciplinary enquiry irremediably flawed ab initio. 			The option of seeking relief once the disciplinary 				proceedings have been finalized is not an effective 				alternative to an immediate intervention by way of interdict or 		review, since the consequences of a dismissal can rarely be 			fully redressed by compensation, and reinstatement is 			frequently rendered impracticable because of delays in 			litigation and altered circumstances. 

	42.	In the premises, we are of the view that the court may entertain the 	application at this stage, notwithstanding that the disciplinary enquiry 	has not been finalized.

	43.	The court will not come to the assistance of the Applicant unless it is 		satisfied that the chairman did not exercise his discretion judiciously.

	44.	The duty resting on the chairman of a disciplinary enquiry to exercise 	his discretion “judiciously “ means that he is required to listen to the 	relevant evidence, weigh it to determine what is probable,  and reach a 	conclusion based on the facts and the law.  The court cannot interfere 	with his decision where he has applied his mind to these matters, even 	if the court disagrees with his conclusions on the facts or the law.  No 	more is required of the chairman than that he should properly apply his 	mind to the matter. However, where he fails to properly apply his mind 	at all to one or more of the issues he commits a gross irregularity, 	because then he has failed entirely to perform the function which was 	required of him.  He has failed to exercise his discretion judiciously. His 	decision will then be reviewable.

National Transport Commissioner & Another V Chetty’s Motor Transport 1972 (3) SA 726 A at 735 F.

Nationwide Car Rentals v Commissioner, Small Claims Court Germiston & Another 1998 (3) SA 568 (W).

	45.	In the present matter, we are of the view that the 2nd Respondent 	failed to apply his mind at all to one of the most important factors 	raised by the Applicant in her plea for legal representation: namely, 	whether an employee of the 1st Respondent can satisfactorily 	represent her interests at the enquiry when the Managing Director is 	involved  in the charges.

	46.	The Applicant’s representative raised the issue squarely at the 	preliminary hearing and the following exchange is recorded in the 	minutes:

“REP	 As we mentioned that the complainant in this matter is the Chief Executive Officer and I think it would place even those officers even if they were able to represent her in a very difficult position having to face the Chief Executive Officer in proceedings of such a serious nature.

CHAIRMAN:	Is he the complainant?

REP	The charges emanate from the Managing  Director and in fact in one of the charges is expressly referred to in relation to the traveling claims that were allegedly submitted to him which is not [only] making him a complainant in respect of that charge but a witness as well.”

	47.	The Bank’s representative Mr. Nel confirmed that the Managing 	Director “has been involved in the charges and will act as witness in 	some of the incidents.”  Asked by the chairman if the Managing 	Director is the complainant, Mr. Nel states that he “acts as the 	employer. We are here to represent the Bank’s case but I think that 	having signed the letter he is probably the complainant.”

	48.	It is a reasonable concern deserving of consideration that a fellow-	employee may be reluctant to represent the Applicant in defending 	charges initiated by his/her Managing Director; inhibited in cross-	examining the MD; and intimidated by the prospect of having to 	confront the MD and contradict his evidence.

	49.	Instead of addressing this concern, the chairman confined his 	deliberation to the semantic question whether the complainant is the 	Managing Director or the Bank.  Having concluded that it is the Bank, 	he did not apply his mind any further to the real issue of concern.

	50.	The chairman was referred at the preliminary hearing to the judgement 	of the Industrial Court in the case of Simelane v National Maize 	Corporation (supra). This judgment sets out by way of guidance 	certain considerations to be taken into account by the chairperson of a 	disciplinary enquiry in deciding whether legal representation or other 	external representation is indispensable to ensuring a procedurally fair 	hearing. One such consideration is expressed as “whether an 	employee of the organization can satisfactorily represent the interests 	of the Applicant in circumstances where the Chief Executive Officer is 	the complainant.”  The chairman misdirected himself by confining 	himself to distinguishing this guideline - “the complainant here is not 	the CEO,  which is what they say in the National Maize Corporation 	judgement “  (Record page 82) – instead of addressing the relevant 	issue of concern highlighted by the guideline,  namely  the inherent 	difficulties that arise when the Chief Executive Officer is directly 	involved in disciplinary charges, whether as complainant / initiator or 	witness.

	51.	The Bank’s Global Guidelines on Disciplinary Process and Procedure 	afford the employee the right to be assisted by a work colleague, and 	the Applicant argued for legal representation at the preliminary hearing 	inter alia because she has few work colleagues of equal status and 	those available are disqualified for one reason or another. The 	chairman dealt with this issue in his ruling by stating that the Applicant 	“is a member of a bigger family called the Standard Bank Group within 	which there are plenty of her colleagues at her level and above that 	are eligible to represent her.”  (Record page 81).

	52.	We do not think that colleagues employed by different corporate 	entities in foreign countries albeit in the same banking group can 	realistically be considered as “work colleagues”.

	53.	The possibility of representation by an employee from a bank in the 	Standard Bank Group outside Swaziland is therefore not apparent from 	the Group Guidelines. This possibility was not suggested during 	argument at the preliminary hearing, neither by the chairman nor the 	Bank’s representative. The Applicant was given no opportunity to 	address the enquiry on the feasibility of this proposition.  As appears 	from her affidavit in the present application, she has a number of 	grounds for objecting to the proposal, but the chairman made his ruling 	without giving her a chance to canvas the issue.  In our view, this was 	a serious irregularity which prejudiced the Applicant at the preliminary 	hearing.

	54.	The Applicant has queried the impartiality of the 2nd Respondent as 	chairman of the disciplinary enquiry due to his participation in the 	meeting that took place after the enquiry was adjourned and his offer to 	broker a settlement.  According to the Applicant, the chairman is 	employed by the Standard Bank Group as Senior Manager, Industrial 	Relations for Standard Bank Africa. In our view it was not irregular for 	senior managers of the banking group to attempt to resolve a sensitive 	disciplinary matter and to seek to avoid holding a formal enquiry. This 	was in the interests of the Applicant as well as the Bank. There is no 	suggestion that the discussion encroached on the merits of the 	disciplinary charges or that any undue pressure was exerted on the 	Applicant. We do not consider that the attendance or conduct of the 	chairman at this meeting gives rise to a reasonable suspicion of bias.

	55.	Nevertheless, for the reasons set out in paragraphs 46 – 54 above, we 	find that the 2nd Respondent did not exercise his discretion judiciously 	at the preliminary hearing on the question of legal representation. His 	decision must be set aside and the question considered afresh in the 	light of all the facts, including the new facts canvassed in the affidavits 	before court. The court is in as good a position to make a fresh 	decision as the chairman on the facts, and in our view it is fair and 	proper that we should determine the issue instead of remitting it to the 	chairman for reconsideration.  It may be difficult for a lay person to 	disabuse his mind of his previous judgment, to give proper weight to 	factors which he previously overlooked, and to revisit issues on which 	he has already pronounced. Moreover the 2nd Respondent has 	suggested that he may recuse himself in the event that the Applicant 	objects to his continuing to act as chairman, and it is not in the 	interests of expediting the stalled disciplinary process that the 	preliminary issue of legal representation may have to be considered de 	novo by a new chairman.

	56.	The Applicant is justified in viewing the charges against her in a 	serious light, and regarding her employment as being in jeopardy if the 	charges are proven against her at the hearing.  It is not surprising then 	that she wishes to be properly represented at the hearing.

	57.	The Global Guidelines provide for representation by a trade union 	official or a work colleague when the alleged misconduct is of such a 	nature that it may lead to dismissal. The Applicant is not eligible for 	membership of a union or staff association because of her status as an 	executive manager. It remains to consider whether she can be 	represented by a work colleague. 

	58.	The pool of work colleagues of equal status to the Applicant is limited 	to senior managers who are members of the Bank’s Executive 	Committee (‘Exco’).The Applicant has given reasons why none of her 	work colleagues on Exco can represent her.  We find these reasons 	convincing.  Two of the Exco members are also members of the board 	of directors of the Bank, and they in fact signed the board resolution to 	oppose the present application. These members are answerable to the 	Bank’s shareholders and board of directors and are closely identified 	with the Bank as employer. It would be awkward and inappropriate for 	either of them to represent an employee in disciplinary proceedings 	instituted by the Bank. The Head of Risk was involved in preparing the 	disciplinary charges. The Head of Finance is on maternity leave.  The 	Applicant is not on good terms with the Head of Credit, and she has no 	confidence in the Head of Treasury to adequately represent her. The 	Head of Operations refuses to represent her.  The Head of Marketing 	is not a member of Exco. He is of lower status than the Applicant, but 	more importantly he is presently acting in the place of the Applicant as 	Head of Human Resources. As such he is responsible for disciplinary 	matters at the Bank, and it would be anomalous for him to represent 	the Applicant.

	59.	The Applicant also submits that no employee of the 1st Respondent 	can satisfactorily represent her interests at the enquiry in 	circumstances where the Managing Director is involved in certain of 	the charges and shall have to be cross-examined as a witness. This is 	a valid concern. Members of Exco work far more closely with the MD 	than other employees at the Bank, so in addition to the natural 	reluctance of an employee to confront his/her ‘boss’ there is also the 	inhibiting factor of a close personal relationship. 

	60.	In our view the Applicant has shown on a balance of probabilities that 	satisfactory representation cannot be obtained from amongst her work 	colleagues at the Bank.

	61.	The 1st Respondent submits that the Applicant is familiar with 	disciplinary matters and procedures and the requirements of labour law 	by virtue of her qualifications and experience in the human resources 	field. There is therefore no reason for her to feel intimidated by the 	disciplinary charges or proceedings at the enquiry. The implication is 	that the Applicant does not need representation to the same extent as, 	say, a less sophisticated employee. This may be so, but the right to 	representation is a central aspect of fairness, in respect of 	unsophisticated employees and senior managers alike. (See Bassett v 	Servistar (Pty) Ltd (1987) 8 ILJ 503 (IC) and the remarks of Edwin 	Cameron in his article The Right to a Hearing before Dismissal – 	Problems and Puzzles (1988 ILJ p147)). The benefits of 	representation go beyond the availability of technical advice and 	assistance to include moral support and objective guidance. As the 	aphorism goes, “a lawyer who represents himself has a fool for a 	client.” The Applicant has a right to representation, and if such 	representation cannot be found within the bank, then other options 	must be considered.

	62.	As previously stated, we do not consider that employees of foreign 	banks within the Standard Bank Group can properly be described as 	“work colleagues” of the Applicant.  The Bank is prepared to go outside 	its own guidelines by permitting representation from within the broader 	Standard Bank “family”.  This is a tacit acknowledgment of the difficulty 	of finding a suitable representative amongst the Applicant’s colleagues 	at work.

	63.	There is no reason on the evidence to believe that the Applicant enjoys 	anything more than a superficial acquaintance with her foreign human 	resources counterparts. Recruitment of a representative from these 	counterparts will present obvious logistical problems in arranging 	transport and accommodation, presumably at the Applicant’s expense.  	However, the real practical difficulty lies in identifying a competent 	person of independence and equal status, with suitable character and 	experience in labour relations, who is moreover willing to undertake 	such a responsibility. In our view it is unreasonable to expect the 	Applicant to randomly choose a representative from amongst her 	foreign counterparts, nor would it be proper for the bank without her 	consent to choose a representative on her behalf. The Bank has a 	legitimate interest in keeping disciplinary proceedings “within the 	family” and this policy must be given due weight, but this does not 	mean that the Applicant can be compelled to entrust the defence of her 	livelihood to a virtual stranger. 

	64.	Representation by a group employee from outside Swaziland does not 	appear to us to be a realistic proposition. In that case some form of 	expert representation is the only reasonable alternative to 	representation by a work colleague. The court mooted the idea of 	representation by SASBO, but the Applicant is not a member of this 	organization, and it is unlikely that SASBO will avail its services to a 	non-member. Also, labour laws and practices in Swaziland are not the 	same as those in South Africa. If an outsider is to represent the 	Applicant, then why not a local lawyer who has been trained for the 	task?

	65.	It has been said that lawyers make the disciplinary process legalistic 	and expensive. They are accused of prolonging the proceedings and 	causing delays due to their unavailability.  On the other hand, lawyers 	usually do ensure a proper ventilation of the issues and the 	observance of fair procedure.  Whilst allowing legal representation may 	place small employers at a disadvantage because of additional cost 	and time factors, we do not believe a multinational corporation such as 	the 1st Respondent will be unfairly disadvantaged or prejudiced.

	66.	The charges against the Applicant appear to be straightforward but as 	is stated by John Grogan, “the presiding officer cannot know how the 	hearing will unfold, or what issues it might throw up.  It may 	accordingly be perilous to hold at the outset that a matter is so “simple’ 	that legal representation is not required.” (Grogan: Is there a Lawyer 	in the House? Legal Representation in Disciplinary Proceedings 	(2005) 21 Employment Law Part 3 page 8). The 1st Respondent 	certainly considered the charges to be sufficiently complex to warrant 	the involvement of two forensic managers. If the issue of the 	chairman’s recusal is not resolved by consensus, a possible recusal 	application will certainly justify the involvement of a lawyer – see Van 	Eyk v Minister for Correctional Services and others [2005] 6 BLLR 	639 (EC). 

	67.	In the article mentioned above (Is there a Lawyer in the House? 	Legal Representation in Disciplinary Proceedings) Grogan 	analyses recent case law and concludes that “it will now take a bold 	presiding officer to dismiss an application for legal representation in 	disciplinary hearings in which employees are charged  with any but the 	most trivial misconduct”.  We do not believe our law has evolved to this 	extent.  It is true that the Constitution of Swaziland now confers a right 	on public service employees to legal representation at disciplinary 	enquiries before their respective service commissions (section 182 of 	the Constitution), but in the private sector the general rule still applies - 	there is no general right to legal representation, but such 	representation should be permitted in exceptional circumstances where 	it is necessary to ensure a procedurally fair hearing.

MEC, Department of Finance, Economic Affairs & Tourism, Northern Province v Mahunani (2004) 25 ILJ 2311 (SCA) AT 2312.

	68.	We are of the view that the Applicant should be permitted legal 	representation if she is to have a procedurally fair hearing. We 	accordingly grant an order in the following terms:

	(a) The decision of the 2nd Respondent that the Applicant is not entitled to legal representation at the disciplinary enquiry is set aside.

	(b) The Applicant is permitted to be represented by a lawyer at the disciplinary enquiry.

	(c) The Respondents shall pay the costs of the application.

	(d) The taxing master shall not be bound by the tariff of costs with respect to the costs of the Applicant’s counsel, and may allow such larger sums as he/she thinks reasonable.

The members agree.

PETER R. DUNSEITH
PRESIDENT OF THE INDUSTRIAL COURT