Thandi Zikalala-Kunene Vs Standard Bank of Eswatini Limited and Another (248/2020) [2020] SZIC 160 [26 November 2020]
The applicant is employed by the 1st respondent as a Manager Procurement, Governance and Risk, based at the Head Office in Mbabane. The 1st respondent is a financial institution based at the Corporate Place, Swazi Plaza, Mbabane. The 2nd respondent is an Attorney practicing with S.M. Simelane Attorneys in Mbabane and is the Chairperson of the ongoing disciplinary hearing that has was instituted by the 1st respondent over alleged misconduct by the applicant.
On the 29th of September 2020, the applicant approached the Court seeking the following orders:
(1) Dispensing with the usual forms and procedures relating to the institution of proceedings and allowing the matter to be heard as one of urgency.
(2) Condoning the non-compliance of this application with the rules of the Court.
(3) Staying the disciplinary hearing instituted against the applicant pending the finalization of this application.
(4) A rule nisi be hereby issued, calling upon the respondents to show cause on a date to be determined by the Court why the following orders should not be made final:
(4.1) Reviewing and setting aside the decision of the 2nd respondent of refusing to recuse himself.
(4.2) The 2nd respondent be removed as Chairperson of the applicant’s disciplinary hearing.
(4.3) The 1st respondent be ordered to appoint a new Chairperson for the ongoing disciplinary hearing.
(4.4) The disciplinary hearing shall start afresh under the new Chairperson as per the prayer above.
(4.5) Declaring the applicant’s disciplinary hearing as an unfair labour practice.
(5) The 1st respondent pays the costs of this application on a scale applicable to Attorney and client.
(6) Further and/or alternative relief as the Court sees fit.
Background
On the 4th of February 2019, the 1st respondent preferred charges against the applicant alleging that she misrepresented her qualifications which induced it to hire her. The 1st respondent alleged that due to her misrepresentation, the applicant obtained undue benefit from it in the form of salaries, bonuses and discounted loan facilities, which exceeded E2 591 400.00 from 2012 to date. The disciplinary hearing commenced on the 7th of February 2019 and it is still running to date. At the beginning of the hearing, the applicant was allowed legal representation and was represented by Attorney Mr Muzi Simelane while the Initiator was Attorney Mr Sabelo Mngomezulu. On the 19th of February 2020, Mr Simelane withdrew his services in protest of the 2nd respondent’s decision to allow one of the company’s witnesses to testify through Audio Visual Link (AVL).
The bone of contention was that no application was made during the disciplinary hearing while Mr Mngomezulu and the 2nd respondent agreed that the application was made and granted. Following the withdrawal of her lawyer, the applicant instructed attorneys from Magagula & Hlophe Attorneys. The applicant was represented by Messrs. Mangaliso Magagula and Zwelakhe Hlophe. On the 17th of June, Messrs. Magagula & Hlophe made an application that the 2nd respondent should recuse himself, on the basis that he had conducted himself in a manner that created an apprehension of bias. The AVL matter was cited as one example that showed the apprehension of bias. On the 25th of June 2020, the 2nd respondent dismissed this application. The applicant was disgruntled by this decision together with other events of July 2020 which include:
(i) Inviting the parties into a hearing and allowing a person identified as an HR representative who later became the company witness.
(ii) Making negative comments about the applicant in a ruling that was not preceded by arguments by legal representatives.
(iii) Allegedly adopting the posture of an interested adversary.
(iv) The directive on the use of AVL.
On the 12th of August 2020, the applicant moved another application through her legal representative for the 2nd respondent to recuse himself, the 2nd respondent again dismissed this application on the 17th of August. On the 23rd of September 2020, the applicant appealed this decision with the Company’s Chief Executive Officer (CEO), who refused to intervene in an incomplete disciplinary hearing. Subsequent to this, the applicant instituted the current application. During the arguments in Court on the 30th of September 2020, the 1st respondent’s Counsel made an undertaking that the disciplinary hearing will not proceed pending the finalization of the current application. The 1st respondent’s Counsel argued that the applicant had not established urgency because the ruling of the disciplinary hearing was handed down on the 17th of August 2020 while the current application was instituted on the 29th of September 2020. According to 1st respondent’s Counsel, there is no explanation for this delay.
They also argued that the applicant set impossible timelines for the 1st respondent to file an answering affidavit, which was to be filed on the 29th of September and the matter was to be heard on the 30th of September 2020. 1st respondent further averred that the applicant had not presented exceptional circumstances that warrant the Court’s intervention in an incomplete disciplinary hearing. Counsel further argued that the applicant failed to show how the 2nd respondent’s alleged bad decisions would cause her irreparable harm. The applicant’s Counsel submitted that if the applicant was to adhere to Part VIII of the Industrial Relations Act of 2000 (as amended) it would result in her suffering irreparable harm.
Analysis of Arguments
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The Court noted that there was a delay in furnishing the applicant’s legal representative with a record of the disciplinary hearing.
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Due to this delay, the Court was satisfied with the applicant’s explanation on the delay in filing this application.
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It was the Court’s view that all the rulings and records of the disciplinary hearing are pertinent to the determination of this matter. Consequently, it could have been premature to file the application prior to the applicant and her Attorney appraising themselves of all germane facts.
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The Court’s view is that the applicant has prima facie shown that the 2nd respondent was prepared to continue with the hearing on the 19th of February 2020, without satisfying himself that the ruling on AVL was indeed made on the 15th of January 2020.
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The record of the 15th of January does not contain the ruling on the use of AVL contrary to what the 2nd respondent had asserted.
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Also, on the 19th of February, the record shows that the 2nd respondent asked the applicant’s representative what prejudice the applicant would suffer if testimony was given through AVL without a submission from the Initiator on the same. The 2nd respondent also made remarks that the 1st respondent would be inconvenienced if the witness did not testify.
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Had the 2nd respondent satisfied himself that he made the ruling, the above comments would not have been inappropriate.
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It was the Court’s view that the 2nd respondent did not consider the criteria set out by The Courts (Remote Participation) Act No.8 of 2018 when handling the issue of the AVL.
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The Court’s prima facie view is that the Initiator did not make an application for South African witnesses to testify through AVL.
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The Court felt that the 2nd respondent’s action of allowing the use of AVL without hearing the other party’s objection was tantamount to a miscarriage of justice and seriously compromises the 2nd respondent’s impartiality.
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The Court submitted that the applicant was able to move it’s hand to interfere with an incomplete disciplinary hearing.
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The point of law on urgency by the 1st respondent is dismissed.
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The Court discouraged the act of the applicant’s Counsel of not giving the 1st respondent enough time to file it’s answering affidavit but this should not stop the applicant from accessing justice.
Judgement
The Court ordered as follows:
(1) The point of law on urgency is dismissed, the applicant has demonstrated good cause for the Court to intervene in an incomplete disciplinary hearing.
(2) The respondents are granted leave to file comprehensive answering affidavits within 7 days of this order.
Jan 2 2021 9:21PM