Swaziland Post And Telecommunications Workers Union And Others v Swaziland Post And Telecommunications Corporation (221 of 2009) [2009] SZIC 49 (4 June 2009)

HELD AT MBABANE

CASE NO. 221/2009

In the matter between:

SWAZILAND POSTS & TELECOMMUNICATIONS

WORKERS UNION

INNOCENT NGCOBO

LAURENCE MATSEBULA

THULANI MKHONTA

WELILE MTHIMKHULU

NOMPUMELELO DLAMINI

1^ST APPLICANT 2^nd APPLICANT 3^rd APPLICANT 4^th APPLICANT 5^th APPLICANT 6^th APPLICANT

and

CORPORATION

RESPONDENT

CORAM:

S. NSIBANDE JOSIAH YENDE NICHOLAS MANANA

PRESIDENT

MEMBER

MEMBER

MR. B. S. DLAMINI MR. Z. JELE

FOR APPLICANTS FOR RESPONDENT

RULING ON POINTS OF LAW - 4/06/2009

1. The Applicants have applied to the court on a certificate of urgency

claiming for an order;

"1. Dispensing with the normal forms of service and time limits and hearing this matter on an urgent basis.

2. That a rule nisi be and is hereby issued calling upon the Respondent to show cause on a date and time to be determined by the above Honourable Court why:

9. the suspensions from work levelled against the 2^nd to &^h Applicants herein by the Respondent should not be reviewed, corrected and/or set aside as being irregular and unlawful;

10. the charges preferred against the 2^nd to Applicants herein by the Respondent should not be declared invalid

" - - and falling outside the scope of the Respondent's

« disciplinary code and procedure.

9. That an order be and is hereby issued declaring that the 1^st Applicant's Executive Members are entitled to pursue lawful demands on behalf of their members without fear and /or victimization by the Respondent.

10. That an order be and is hereby issued declaring that it is unlawful for the Respondent to use its disciplinary powers with a view to instilling fear and/or coercing its employees to abandon their lawful demands in the course of collective bargaining.

11. That an order be and is hereby issued declaring that any intended disciplinary action and/or suspensions against members of the 1^st Applicant arising from the same set of facts relating to the events of the 5^th May 2009 is wrongful and unlawful.

12. Costs of the application in the events of unsuccessful opposition hereto.

13. Further and/or alternative relief."

2. When the matter came to court on 27^th May 2009 the Respondent had

managed to file its Answering Affidavit in which it raised four preliminary points of law. The first point was abandoned at the hearing and we will therefore not consider it. The three points remaining were as follows:

lA Ho Dasia ior in ignoring in an internal disciplinary hearing -

The Respondent submitted that the Applicants had not outlined in the founding affidavit any basis to warrant that the court should intervene in an internal disciplinary process. The chairpersons of the disciplinary hearings involving the applicants are seized with the issues the applicants had brought to court and the applicants ought to present their complaints to such chairpersons.

2.2 Suspension - that the Respondent as an employer has the right to suspend the 2^nd to 6^th Applicants in terms of the Employment Act, the provisions of the Recognition Agreement as well as the Disciplinary Code and Procedure and that no cogent reason has been advanced in the Founding Affidavit to warrant the court's intervention.

2.3 Disciplinary Charges - that it is the right

and prerogative of

management to effect discipline where there is a breach of

disciplinary standards or misconduct. That the

disciplinary code is

not exhaustive of the work place rules and that certain offences

may be determined from the common law or basis has been set out by Applicants for disciplinary charges.

other sources. No setting aside the

with these prayers, of the Recognition

2.4 Arbitration - The Respondent is an essentia services employer and the prayers sought by applicants in prayers 3, 4, and 5 relate to the interpretation of the Recognition Agreement entered into by the parties. The parties have agreed to refpr such dispute to arbitration. The court can therefore not deal The Applicants must adhere to the provisions Agreement in this respect.

the charges they decided by those

; he Respondent's submission was that the 2^nd to 6"' Applicants' were currently appearing before disciplinary tribunals regarding allegations of misconduct levelled against them. The consequence thereof, it was submitted, is that the chairpersons of those disciplinary tribunals are seized with the matters and the Applicants' contentions that their suspensions were irregular and unlawful and thai; face are invalid are questions that ought to be chairpersons. The court was told that it could only interfere in the uncompleted internal disciplinary hearings if there has been or there is likely to be a travesty of justice that is incurable. Jhe Applicants had failed to show that a travesty of justice had occurred or was likely to occur in this case.

4. The court was referred to various authorities for the principles that the

court is reluctant to and rarely interferes in the internal disciplinary procedures.

Simon Mvubu v Ngwane Mills - IC Case No. 198/99;

Bhekiwe Hlophe v Swaziland Water Services Corporation IC Case No. 411/2006;

Sazikazi Mabuza v Standard Bank of Swaziland Limited & Another IC Case No. 311/2007;

Ndoda Simelane v National Maize Corporation (Pty) Ltd IC Case No. 453/06.

9. The Applicants' case was that section 8 (1) of the Industrial Relations Act read with section 4 (1) of the High Court Act vests this court with authority to review decisions of inferior courts and triounals. As such the court ought to review the Respondent's decision to suspend the 2^nd to 6^th Applicants as well as set aside the charges they face for the manner in which they came about.

10. 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. In the case of Graham Rudolph v Mananga College IC Case No. 97/2007, this court reaffirmed its reluctance to interfere with the prerogative of an employer to discipline its employees. However the court stated that it would intervene to prevent a procedural unfairness which may cause the Applicant irreparable harm.

7. There is no question therefore that this court can intervene in the
internal disciplinary proceedings even when they are not finalised
where exceptional circumstances exist. However, in respect of this
matter, the Applicants are already before independent chairpersons
answering to certain charges. The issues placed before the court
ought in our view, to be placed before such independent chairpersons
for determination. It is such chairman who will decide whether the
charges should be declared invalid as well as whether the Applicants'
suspension fall outside the disciplinary code and procedure and
whether they should be set aside.

8. . The court is loathe to usurp the discretion of the chairpersons of these

disciplinary enquires particularly where they have not had the opportunity to exercise same. As was the case in the Ndoda Simelane case (supra), the Applicants appear to have "jumped the gun" by coming to court instead of attending the disciplinary hearings and requesting the chairpersons to make a decision on question of the suspensions and the charges.

9. In the premises we are of the view that the Applicants ought to raise their complaints with the chairpersons of their disciplinary enquiries. The court will not make any comment on the appropriateness of the suspensions or the charges that the Applicants face for the simple reason that we do not want to pre-empt the chairpersons' decisions.

10. The application is therefore dismissed and there will be no order as to costs.

S. NSIBANDE

PRESIDENT OF THE INDUSTRIAL COURT

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