Shongwe v Sithole (1 of 2020) [2021] SZICA 201 (10 August 2021)

# Shongwe v Sithole (1 of 2020) [2021] SZICA 201 (10 August 2021) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szica/2021/201/eng@2021-08-10) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szica/2021/201/eng@2021-08-10) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szica/2021/201/eng@2021-08-10) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szica/2021/201/eng@2021-08-10) [ __](mailto:?subject=Take a look at this document from EswatiniLII: Shongwe v Sithole \(1 of 2020\) \[2021\] …&body=https://eswatinilii.org/akn/sz/judgment/szica/2021/201/eng@2021-08-10) [ Download DOC (208.8 KB) ](/akn/sz/judgment/szica/2021/201/eng@2021-08-10/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szica/2021/201/eng@2021-08-10/source.pdf) Report a problem __ * Share * [ Download DOC (208.8 KB) ](/akn/sz/judgment/szica/2021/201/eng@2021-08-10/source) * [Download PDF](/akn/sz/judgment/szica/2021/201/eng@2021-08-10/source.pdf) * * * * * Report a problem __ ##### Shongwe v Sithole (1 of 2020) [2021] SZICA 201 (10 August 2021) Copy citation * __Document detail * __Related documents Citation Shongwe v Sithole (1 of 2020) [2021] SZICA 201 (10 August 2021) Copy Media Neutral Citation [2021] SZICA 201 Copy Court [Industrial Court of Appeal of eSwatini](/judgments/SZICA/) Case number 1 of 2020 Judges [Mazibuko J](/judgments/all/?judges=Mazibuko%20J), [Van der Walt JA](/judgments/all/?judges=Van%20der%20Walt%20JA), [Nsibande JP](/judgments/all/?judges=Nsibande%20JP) Judgment date 10 August 2021 Language English Court Roll [Download PDF](/akn/sz/judgment/szica/2021/201/eng@2021-08-10/attachment/shongwe-v-sithole-2021-szica-201-10-august-2021.pdf) (858.8 KB) Summary Read full summary * * * Skip to document content .., 1 _IN THE INDUSTRIAL COURT OF APPEAL OF_ ___ESWATINI_ Case No. 8/2020 In the matter between: TREVOR SHONGWE Appellant and MACHAWE SITHOLE N.O. ESWATINI ROYAL INSURANCE CORPORATION First Respondent Second Respondent NEUTRAL CITATION: _Trevor Shongwe v Machawe Sit/tole and Another [2021] (08/2020) SZICA 1 (JO August 2021)_ CORAM: NSIBANDEJP, VAN DER WALT JAANDMAZIBUKO JA HEARD 04, 05 May 2021 DELIVERED: 10 August 2021 _**Summary**_ _Appeal_ ___-jurisdiction_ ___of_ ___Industrial_ ___Court_ ___of_ ___Appeal_ __ - _expressly_ ___restricted_ ___to_ ___questions of law by_ __section 19(1)___of the Industrial Relations Act 2000_ \- _such a peremptory statutory_ ___provision_ _Appeal_ \- _basic principles pertaining to unambiguous and decisive distinction between questions of law, questions of fact and questions of exercise of judicial discretion restated_ \- _an appeal on a question of law, shorn of all embellishments simply, means an appeal in which the question for argument and determination_ is _what the true rule of law is on a certain matter_ \- _includes where Court a quo had overlooked a principle of law and failed to apply same because of such oversight_ _Appeal_ \- _point of departure in determining a question of law would be to deem the Court a quo_ 's _factual findings to be correct and Industrial Court of Appeal may also have regard to uncontested facts appearing fi·om record of the proceedings a quo insofar as such facts are not inconsistent with those found by the Court a quo_ _Recusal of Chairman of disciplinary tribunal_ \- _basis principles restated_ _Stay of disciplinary proceedings pending determination of Court proceedings_ - _filing of Court application does not automatically stay disciplinary proceedings but_ _not a prerequisite that application to Court for such stay has to be preceded by application for stay before Chairman of disciplinary tribunal_ **JUDGMENT** **VAN DER WALT,JA A****BACKGROUND** [l] The factual matrix underlying this appeal, briefly, is that the Appellant Employee, as Applicant, during the course of a disciplinary enquily approached the Court _a quo_ on an urgent basis for a stay of disciplinary proceedings against him pending review of the refusal of the First Respondent (hereinafter referred to as the "Chainnan,") an attorney appointed as Chairman by the Employer (the Second Respondent,) to recuse himself. 2. The basis for the recusal sought, in essence, was that criminal proceedings had been instituted against a fellow employee relating to the same subject matter serving before the Employee's disciplinary tribunal and that the law film of which the Chainnan is a partner, was acting as the attorneys for the other employee. The Employee in his Founding Affidavit contended amongst others that: _**"A scenario may arise during the disciplinary hearing whereby as an accused employee, I may argue that it is the [Chairman's] client that**_ ___**was**_ _**negligent for the transaction complained of and should be held liable. There is no way I can get justice from the [Chairman]**__**if**_ _**I were to make those allegations since this is his law firm's client.**_ " 2. The Chairman's Ruling dismissing the application for his recusal, contain statements by the Chairman to the effect that he did not personally know the other employee or the matter in question but all he knew, as at the time that the hearing commenced, was that it had been a matter for bail handled by his partner, and that the matter had since been taken over by other attorneys. 2. The main relief sought by the Employee was setting aside the Chairman's refusal to recuse himself and the Employee in his Founding Affidavit formulated his Grounds for Review as follows: __**"GROUNDS FOR REVIEW**__ 13. _The ruling by the_ _18_ _1_ _Respondent is grossly unreasonable, irrational, improper and unlawful in_ ___that;_ 1. _The failure by the_ _18_ _1_ _Respondent ought to have declared the obvious conflict of interest arising from his office representing a fellow employee in respect of the same charges I am_ ___facing._ 2. _The failure by the_ _18_ _1_ _Respondent to declare the conflict of interest in the matter is not just an irregularity that has the potential to taint the outcome_ ___of_ ___the_ ___disciplinary_ ___hearing_ ___but_ ___is_ ___in_ ___fact_ ___bordering_ ___on_ ___unethical and unprofessional_ ___conduct._ 3. _It matters not that the_ _2_ _nd_ ___Respondent knew of the potential conflict in agreeing to the appointment of the_ _18_ _1_ _Respondent, but the duty was upon the latter to do the 1·ight thing and recuse_ ___himself in the matter,_ _or, at the very last declare to the parties that his office is representing the resigned employee who is also facing criminal charges on similar facts._ _I 3.4. When consulting with their client (Linda Nzuza) who also happens to be my former colleague/co-employee, and in moving the bail application on his behalf, certain confidential disclosures were made to the office of the_ _pt_ _Respondent by this employee relating to the same charges which I am also_ ___facing._ _13.5. The_ _pt_ _Respondent is more likely to hold me liable and attribute everything upon me whilst seeking to have his office's client absolved ji·om the charges._ _I 3.6.__It is immaterial that the former employee is represented by the_ _pt_ _Respondent's partner. The paramount issue is that the former employee is a client of the_ _P_ _1_ _Respondent's law firm and as such he might be treated more favourably than me since I am not a client to_ _1'__1_ ___Respondent's law_ ___firm."_ 2. The Employer opposed the application _inter alia_ on the _in limine_ basis that the Employee should have applied to the Chairman for a stay of the disciplinary proceedings before approaching the Court _a quo._ The Court _a quo_ __ was not persuaded by this argument and in dismissing same, stated that: _**"To refer the matter back to the chairman, solely for the application for a stay and thereafter have the Applicant come back to this very same Court would not bejust. He is already here. In the specific circumstances of this case, we find it to be prudent and fair to dismiss the point in limine in respect of the**_ ___**stay."**_ 2. The Court _a_ ___quo_ __ proceeded to determine the matter on the merits as follows: _"_ _"25. We understood Counsel for the Applicant, Mr B.S Dlamini, as advancing the same_ _argument_ _1_ _during the hearing.__**He argued that the gravamen of the Applicant's complaint, is not the apprehension of bias, but is institutional basis**_ ___emanating_ _fi·om_ _the_ _fact_ _that_ _the_ _18_ _1_ _Respondent is_ _partner_ _in_ _the_ _same law firm as the attorney that represented the Applicant's ex colleague_ _...;_ and _"28.__When looking at the particular circumstances of this case, more especially the fact that at the time the_ _18_ _1_ _Respondent was seized with the matter he did not have any lmowledge of the details of the matter that his partner was handling._[sic] _When we consider the allegations that have been made in the founding affidavit of the Applicant against the 1_ _st_ _Respondent as grounds constituting his allegedly_[sic] _bias.___**They are to the effect that, he acted**__ ____**irregularly by not declaring an obvious conflict of interest arising from the**__ ____**office representing a fellow employee. We find that such allegations are not**__ ____**supported by facts.**_____2_ _3_ _At the time the Applicant deposed to the affidavit the_ _l8_ _1_ _Respondent had already made the ruling we would have expected the Applicant to deal with contents of the_ _18_ _1_ _Respondent's ruling. The 1_ _st_ _Respondent outlined in his ruling that he did not /mow at the time he took the assignment that his partner, Mr Magagula, had represented the ex-colleague of the Applicant.___ " 2. The Court _a quo_ thereafter decided and dismissed the application. **B THE APPEAL AND THE CROSS** **APPEAL** 2. Both parties were dissatisfied with the outcome of the case, culminating in the instant appeal and cross-appeal, the Employee being represented by Mr B. S. Dlamini and the Respondent by Mr Z. Jele: 1 i.e. institutional bias 2 Own abbreviation 3 Own emphasis and underlining 1. **APPELLANTS'S GROUNDS OF** **APPEAL** _"1. The Court a quo erred in law and in fact in holding that the Appellant's cause of action was founded on a ground of 'institutional bias_ ' _as opposed to a determination of whether the appointed chairperson was 'ethically or legally conflicted' to sit as_ ___chailperson._ 2. _The Court a quo erred in law and in fact in not holding that the appointed chairperson of the disciplinary hearing (1_ _st_ _Respondent) was ethically and/or legally conflicted to sit as chairperson of the disciplinary hearing as his law firm was also defending another resigned employee in a criminal matter arising from the same transactions in which the Appellant is charged with by his_ ___employer._ 2. _The Court a quo erred in law and in fact in not holding that in the absence of an affidavit to the contrary, the_ _l8_ _1_ _Respondent's law firm was still representing the resigned employee charged on the same transactions as the Appellant._ 2. _The Court a quo erred in law and in fact in not holding that_ _it_ _was legally wrong/or the 2_ _nd_ _Respondent to oppose the application in the Court a quo on behalf of the 1_ _st_ _Respondent as this amounted to relying on 'hearsay evidence' on the factual involvement of the 1_ _st_ _Respondent's law firm in the_ ___matter._ 2. _The Court a quo erred in law and in fact in issuing a final judgement without one member of the Court consenting to such a judgement. The structure of the Industrial Court is such that all the members of the Court and the Presiding Judge must agree before a judgement can be issued to the_ ___parties."_ 2. **RESPONDENT'S GROUNDS OF** **CROSS-APPEAL** _"a) The Court a quo erred in law and misdirected itself in finding that it was nonessential_ ___for_ ___the_ ___Court_ ___to_ ___wait_ ___for_ ___the_ ___Chairman_ ___of_ ___the_ ___disciplinary hearing to first give out pronouncement on the issue of stay. The Court ought to have found that the chairperson should be first given an opportunity to deal with the issue of_ ___stay._ _b) The Court a quo erred in law and misdirected itself in finding_ _it_ _had jurisdiction to intervene in disciplina,y hearings that are incomplete whereat_ _it_ _had found that the courts should be slow to interfere in incomplete internal disciplina,y hearings. The Court a quo ought to have found that the Applicant failed to establish exceptional circumstances warranting the courts intervention. The Appellant reserves the right to supplement the grounds of this appeal.___ " 2. **PRELIMINARY** **MATTERS** 2. The Employee filed a Notice to Raise a Point _In Limine_ to the effect that the cross-appeal was filed out of time and that no condonation had been applied for. However, _Rule 23(1)_ provides that: _"It shall not be necessary for a respondent to give formal notice in terms of Rule 6 of a cross appeal but every respondent who intends to apply to the Industrial Court of Appeal for a variation of the order appealed against shall, not less than four days before the hearing, give notice of such intention to any parties who may be affected by such variation"_ and this point was not pursued on behalf of the Employee. 2. The Employee's Grounds of Appeal Court were styled that the Court _a quo_ " ... _erred_ ___in_ ___law_ ___and_ ___in_ ___fact..."___ and this Court _mero_ ___motu_ __ raised the issue that ___**section**_ ___**19**_ of the Industrial Relations Act, 2000 (hereinafter referred to as the "Act") restricts appeals to questions of law only. Mr Jele readily and in our view correctly, abandoned the second ground of the cross-appeal relating to the existence or absence of exceptional circumstances, as constituting a question of fact and not of law. Mr Dlamini sought to persuade this Court that all the Employee's Grounds of Appeal constituted questions of law, Mr Jele contending to the contrary. 2. In the end result, the appeal revolved around the issues whether the Employee's Grounds of Appeal constituted questions of law and if so, whether the Court _a quo_ e1Ted in respect thereof and/or in respect of the remaining ground of the cross-appeal. Since it appears that the distinction between questions of law and other questions may have become obscured over time, the parties were afforded the opportunity to file supplementary Heads of Argument thereon and in respect of ancillary topics. 2. **PARTICULAR APPLICABLE LEGAL** **PRINCIPLES** 1. **APPEAL TO INDUSTRIAL COURT OF** **APPEAL** 2. _**Section**_ ___**19(1)**_ of the Act is a peremptory provision which stipulates that: _**"There shall be a right of appeal against the decision of the Court**_ _**011**_ _**a**_ __**question oflaw**__ _**to the Industrial Court of Appeal"**_ and _**Rule 6(4)**_ of the Rules of this Court requires that:_**"The notice of appeal shall set forth concisely and under distinct consecutively numbered heads the grounds of appeal and**_ __**the**__ ____**points of/aw**__ ___**4**_ _**upon which the Appellant**_ ___**relies."**_ 2. What a question oflaw entails for purposes of an appeal to this Court, has been authoritatively pronounced upon by the Eswatini Courts with reference to principles expounded by the South African courts in respect of _**section**_ ___**l 7C(l)(a)**_ of the South African Labour Relations [Act, 28 of 1956](/akn/sz/act/1956/28) which provides that:_**"(a)ny**_ ___**party**_ ___**to**_ ___**any**_ ___**proceedings**_ ___**before**_ ___**a**_ ___**Labour**_ ___**Appeal**_ ___**Court**_ 4 Own underlining _**may appeal to the Appellate Division**_... _**against a decision or order of the Labour Appeal Court**_ __**(except a decision on a question of fact)**___**.**_. ." These principles have become incorporated in our law, as appears from _inter_ ___alia_ __ the following local judgments: 6 1. _**Swaziland Electricity Board v Collie Dlamini:**____7_ "_[6)__The question that immediately announces itself in this enquiry is what_ is _meant by a question of law as opposed to a question of_ ___fact._ _In_ _**MEDIA WORKERS UNION OF SA**_ _v_ _**PRESS CORPORATION OF SA LTD,**__1992 (4) SA 79l(A)_ @ _795 EM GLOSSKOPF JA referring to_ _SALMOND ON JURISPRUDENCE 12_ _11_ _' edition @ 65-75 stated that:_ __**"The**__ ______**term**__ ______**"question**__ ______**of**__ ______**law"**_______**...**____**is**_ ____**used**__ ______**in**__ ______**three**__ ______**distinct**__ ______**though**__ ______**related**__ ____**senses.**______**In the first place**__ __it__ __**means a question which a court is bound to**__ ____**answer in accordance with a rule of law**__ _-___**a question which the law itself**__ ____**has authoritativelv answered to the exclusion of the court to answer the**__ ____**question**__ ______**as**__ ______**it**__ ______**thinks fit**__ ______**in**__ ______**accordance**__ ______**with**__ ______**what**__ ______**is**__ ______**considered**__ ______**to**__ ______**be**__ ______**the**__ ______**truth**__ ____**and**__ ______**iustice**__ ______**of**__ ______**the**__ ______**matter.**________**In**__ ______**a**__ ______**second**__ ______**and**__ ______**different**__ ______**signification,**________**a**__ ______**question**__ ____**of**__ ______**law**__ ______**is**__ ______**a**__ ______**question**__ ______**as**__ ______**to**__ ______**what**__ ______**the**__ ______**law**__ ______**is.**________**Thus,**________**an**__ ______**appeal**__ ______**on**__ ______**a**__ ______**question of**__ ____**law**__ ______**means**__ ______**an**__ ______**appeal**__ ______**in**__ ______**which**__ ______**the**__ ______**question for**__ ______**argument**__ ______**and**__ ______**determination**__ ____**is**__ ______**what**__ ______**the**__ ______**true**__ ______**rule**__ ______**of**__ ______**law**__ ______**is**__ ______**on**__ ______**a**__ ______**certain**__ ______**matter.**_____A_ ___third_ ___sense_ ___in_ ___which_ ___the expression "question of law" is used arises from the division of judicial functions_ ___between_ ___a_ ___judge_ ___and_ ___ju,y_ ___in_ ___England_ ___and_ ___formerly,____in_ ___South_ ___Africa. The_ ___general_ ___rule_ __ is _that_ ___questions_ ___of_ ___law_ ___in_ ___both_ ___the_ ___aforegoing_ ___senses_ ___are_ ___for the_ ___judge,____but_ ___that_ ___questions_ ___of_ ___fact_ ___(that_ ___is_ ___to_ ___say,____all_ ___other_ ___questions)____are_ ___for the_ ___jury."_ _And at 796, the learned Judge of Appeal referring to the notions of question of fact and question of judicial discretion quoted SALMOND where the author states that:_ 5 It is important to note that there are significant differences between Eswatini and South African labour law and reference to extracts from South African authorities herein, are confined to concepts common to both legal systems 6 Own underling and emphasis 7 _**Appeal Case 2/2007**_ as quoted in _**The Chairman, Civil Service Commission v Isaac M.F. Dlamini**_ _**/14/2015} [2016} SZICA 01 /31 March 2016}**_ _"Matters of fact are capable of proof, and are the subject of evidence adduced_ ___for_ ___that_ ___purpose.____Matters_ ___of_ ___right_ ___and_ ___judicial_ ___discretion_ ___are_ ___not_ ___the subject of evidence and demonstration, but argument, and are submitted to the reason and conscience of the court. In determining questions of fact the court_ ___is_ ___seeking_ ___to_ ___ascertain_ ___the_ ___truth_ ___of_ ___the_ ___matter;____in_ ___determining_ ___questions of judicial discretion it seeks to discover the right or justice of the matter. Whether_ ___the_ ___accused_ ___has_ ___committed_ ___the_ ___criminal_ ___act_ ___with_ ___which_ ___he_ ___is_ ___charged is a question of fact; but whether,__if_ _guilty, he should be punished by way of imprisonment_ ___or_ ___only_ ___by_ ___way_ ___of_ ___fine,___ is _a_ ___question_ ___of_ ___judicial discretion_ ___or_ ___of right.___... _**Matters and questions which come before a court of justice, therefore, are of three**_ ___**classes:**_ 1. __**Mutters and questions of law**__ _-___**that is to sav, ull tlwt are determined**__ __**bv**__ __**authoritutive legal**__ ______**principles:**__ 2. __**Matters und questions ofiudicial discretion**__ _-___**thut is to sav, ull matters und questions as to what is right, iust, equituble, or reasonable, except so fur us determined bv**__ ______**law**__ _**.**_ __**In mutters of the first kind, the dutv of the court is to ascertain the rule of**__ ____**law and to decide in uccordunce with**__ __it.____**In matters of the second kind, its**__ ____**dutv is to exercise its morul iudgment in order to ascertain the right und**__ ____**iustice of the case. In mutters of the third kind, {fact[ its dutv is to exercise**__ ____**its intellectual iudgement on the evidence submitted to**__ __it__ __**in order to**__ ____**ascertuin the**__ ______**truth.**___"__8_ 2. Fmiher guidance can be found in __**Registrar**__ ______**of**__ ______**the**__ ______**High**__ ______**Court**__ _____&_____**2**__ ______**Others**__ ______**v Subuthu Faith Gumedze**__ ___9_ wherein it was held in effect, if the appropriate law was not applied because of an oversight, that there had been a failure in law and that the question, therefore, is ultimately one of law: _**'Appeal Case 2/2007**_ as quoted in _**The Chairman, Civ/1 Service Commission v Isaac M.F. Dlamini (14/2015)[[2016] SZICA 01](/akn/sz/judgment/szica/2016/01) {31 March 2016): **__Own emphasis and underlining_ 9 _**(5/2013)[[2012] SZICA 9](/akn/sz/judgment/szica/2012/9) {29**_ _**th**_ _**October 2013),**__Paragraph [BJ, own emphasis and underlining_ _"[8] We must point out ji-om the onset that in as much as at first sight the question as to whether there was consultation or not appears to be one of fact, the matter raises a point of law in the circumstances of this case. It is our considered view that_ __**the Honourable Judge in the court a quo failed in law**__ ____**when he overlooked the principle of our law**__ ___as laid down in the_ _**Plascon­ Evans Paints Ltd v Vein Riebeeck Paints (Pty) Ltd 1984 (3) 623 (A)**__at 634- 635 as fully demonstrated later in this judgment. The question before court therefore is ultimately one of law and the appellant adopted a correct procedure by appealing.___ " 2. Since an appeal to this Court on a question of fact (and /or matters of judicial discretion) is precluded by the Act, the point of departure in dete1mining a question of law, would be to deem the Court _a quo_ 's factual findings to be correct since same are not capable of being disturbed on appeal to this Court. In _**Standard Bank of Swaziland Limited v Wiseman Simelane**_ _**10**_ __ the following excerpt from _**National Union of Mineworkers v East Rand Gold and Uranium Co Ltd**_ _**11**_ was endorsed: "It _would appear that we are required to determine whether, on the facts found_ _by the Labour Appeal Court, it made the correct decision and order. That is a question of law.__If_ _it_ _did then the appeal must fail.__If_ _it did not, then this Court may amend or set aside that decision or order or make any other decision or order according to the requirements of the law and_ ___fairness."_ 2. Logic would dictate that a Court of Appeal is also entitled to have regard, in addition, to uncontested facts appearing from record of the proceedings _a quo_ insofar as such facts are not inconsistent with those found by the Court _a_ ___quo._ 1° **Cas****e** **25/200****1** **date****d** **1****8****th** **Novembe****r** **2004** **11****1992 (1) SA 700 {A)** at 723 E-F, cited with approval in the _**Media Workers Association**_ case referred to in the _**Swaziland Electricity Board v Collie Dlamini**_ judgment _supra_ 12 _Cf_ _**Performing Arts Council of The Transvaal v**_ _Paper_ _**Printing Wood And Allied Workers Union and**_ _**Others**_**1994 (2) SA 204 {A)** at 214 E-G 2. **RECUSAL IN THE** **WORKPLACE** 2. Mr Jele referred this Court to the following authorities and in particular to extracts dealing with recusal within the context of the common law as well as within the context of institutional bias:13 1. _**Swaziland Development and Savings Bank and Savings Bank and Tennyson Nzima, Industrial Court Case No: 613/2008,**_ citing the case of _**Enrico Bernert v ABSA Bank**_ ___**Limited:**_ _**"The test for recusal which this Court has adopted is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts that a judicial office,· might not bring an impartial and unprejudiced mind to bear**_ _**011**_ _**the resolution of the dispute before the Court.**_ _The court aligns itself with the test as stated by the Constitutional Court of South Afi•ica. In the Enrico Bernert case (supra) the court quoted with approval the following statement fi·om the case of the President of the Republic of South Africa & Others v South Afi·ican Rugby Union & Others, 1999 (4) SA 147 (CC) at paragraphs 36-9_ ___that:_ _"It follows fi·om the foregoing that the correct approach to this application for the_ _**recusal of members of this Court is objective and the onus of establishing**_ _it_ _**rests upon the Applicant. The question is whether a reasonable, objective and informed person would**_ _**011**_ _**the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case that is a mind open to persuasion by the evidence and the submissions of**_ ___**Counsel."**_ 2. Grogan, **Workplace Law****(9****th****Ed)** at pages 197 to 198: 13 Own emphasis and underlining in cases to follow _"The point of disciplinary hearing is to enable the presiding officer to weigh the evidence for and against the employee and to make an informed and considered decision. This presupposes that presiding officers must have, and keep, an open mind throughout the proceedings.__**The rule against bias emanates from administrative law, which requires that an officer presiding at a disciplinary hearing not only be impartial in fact, but also that there should**_ ___**be**_ ___**no**_ ___**ground**_ ___**for**_ ___**even**_ ___**suspecting**_ ___**that**_ ___**his**_ ___**or**_ ___**her**_ ___**decision**_ ___**might**_ ___**be**_ _**shaped by extraneous factors, even**_ _if_ _**this is in fact not the case.**__Decisions_ _of administrative tribunals have been set aside merely on the ground that the person charged might reasonably suspect that the presiding officer was biased._ _**Similar considerations apply in employment law, which requires that presiding officers should not have been involved in the incident which gave rise to the hearing, or have any possible personal interest in the outcome of the dispute, or have been involved**_ _in_ _**trapping the employee or otherwise have harboured a demonstrable suspicion against him.**_ _If employees have reason to doubt that a presiding officer is impartial, they may request the presiding officer to recuse himself or herself. If the presiding officer refuses such an application when recusal was called for, the employee does not waive the right to a fair hearing by withdrawing, and the dismissal may be held to procedurally unfair._ " 3. _**Graham Rudolph v Mananga college and Another, Industrial Court**_ ___**Case**_ _**No:**__**94/2007:**_ _"33. The application of the common law test for disqualifying bias_ is _not, in our view, inappropriate to the context of employment. Confidence in the disciplinary process is an important part of harmonious industrial relations and the avoidance of conflict at the workplace. Grave consequence, including the loss of livelihood, may flow from the disciplinary enquiry.__**Impartiality of the presiding officer and the appearance of independence is as important in private disciplinary hearings as in judicial and public administrative hearings, subject to proper allowance being made for the 'institutional bias' implicit in the employment disciplinmy**_ ___**process".**_ 4. Lynette _**Groening**_ _v_ _**Standard Bank Swaziland and Another, Industrial Court Case No**_ ___**222/20008:**_ _"6. This court laid down the test for disqualifying bias in the employment context in the case of_ _**Graham Rudolph v Mananga College**_ _& __**Another (Unreported IC Case No. 94/2007),**__where we held that the common law test of "a reasonable suspicion of bias" applies but subject to proper allowance being made for the "institutional bias" implicit in the employment disciplinary process._ 7. _**The**_ ___**notion**_ ___**of**_ ___**"institutional**_ ___**bias"**____**allows**_ ___**a**_ ___**person to**_ ___**chair**_ ___**a**_ ___**hearing**_ ___**even where his connection with the institution concerned might arouse a suspicion of inevitable bias, provided there is no probability that he is actually biased.**__This kind of bias_ is _accepted as necessarily built into the employment internal disciplinary process, wherein the presiding officer is_ ___a representative of the employer_ \- _see_ _**Graham Rudolph (supra) paragraphs 27**_ \- _**33**_ _and the cases cited_ ___therein._ 7. _Whilst institutional bias normally arises when a manager from within the employer's institution_ is _appointed to preside over a disciplinary hearing, it may arise when an outsider_ is _appointed_ \- _for instance a manager ji·om a related company, or an officer from the Federation of Swaziland Employers, or_ \- _as in this case_ \- _a professional engaged to serve as presiding_ ___officer._ 7. _**In our view, any appearance of bias arising from tlte appointment of the employer's attorney to preside over a disciplinary hearing is a matter of institutional bias. It arises solely from tlte professional connection between the institution and the attorney. In the context of an internal disciplinary hearing, the perception of bias which arises from the professional attorney­ client relationship is as acceptable as the bias implicit in a hearing chaired by a manager of the employer. Indeed, an attorney is likely to be perceived as more impartial than a**_ ___**manager.**_ 7. _Naturally an attorney may be disqualified from presiding_ _if_ _he/site has any personal interest in the case over and above his professional remuneration or_ ___if_ ___there_ ___is_ ___any_ ___other_ ___feature_ ___or_ ___involvement_ ___which_ ___precludes_ ___him/her_ ___from_ _**!tearing the matter fairly and impartially and reaching an i1tdepende11t decision.**_ " 3. **STAY OF DISCIPLINARY PROCEEDINGS PENDING DETERMINATION OF APPLICATION TO INDUSTRIAL COURT** _**re**_**CHAIRMAN'S REFUSAL TO** **RECUSE** 2. There does not appear to be any statute or case law in point that deals with the question as to whether or not, in the case of a Chairman's refusal to recuse himself or herself, an application for a stay of the disciplinary proceedings pending determination of a Court application, has to be made to the Chai1man before the Court may be approached for a stay. Absent clear authority, a process of deduction will have to be resorted to when this issue is considered later hereunder. 2. **APPLICATION OF THE LAW TO THE GROUNDS ADVANCED AS GROUNDS OF** **APPEAL** 1. **APPELLANT'S GROUNDS OF** **APPEAL** 1. **First Ground i.e.**_**"The Court a quo erred in law and in fact in holdi1tg that the Appellant's cause of action was founded on a ground of 'institutional bias' as opposed to a determination of whether the appointed chairperson**_ 14 _**was 'ethically or legally conflicted' to sit as**_ ___**chairperson.**_ 14 As a matter of interest, the Latin word _"manus"_ means the hand or handle, resulting in words such as _"manual,"____"manufacture"___ and _"manuscript."___ The word _"chairman"___ would designate the handler of the chair, or the hand controlling the chair. In this context, it is not gender specific. 2. Insofar as the purport of this Ground is that the Court _a quo_ applied the wrong legal principle/s to the facts, it would constitute a question of law in the sense of an enquiry as to " ... _**what the true rule of law is on a certain matter.**___ " 2. The leitmotif of the Employee's Grounds for Review and later the Employee's Grounds of Appeal, was that representation of the other employee by the Chairman's law firm constituted a conflict requiring recusal. The predominant tenor of the Judgment of the Comt _a quo_ was that the matter stood to be decided on the basis of _**institutional bias,**_ which as is set out above, would come to the fore where there is a connection between the Employer and the Chairman. 2. The approach adopted by the Comt _a_ ___quo_ __ in this regard, _prima_ ___facie,___ appears to be erroneous in that the complaint _in casu_ was legal representation of a fellow employee, which did not relate to or found a _nexus_ between the Chairman and the Employer. Secondly, the grounds for review as set out in the Founding Affidavit alluded to earlier above, expressly refer to a conflict of interest com1ected to a fellow employee. 2. Muddying the waters somewhat is the statement by the Comt _a quo_ in Paragraph 25 of the Judgment (repeated for ease of reference) reading that: _"25. We understood_ ___Counsel_ ___for_ ___the_ ___Applicant,____Mr_ ___**B.S**_ ___Dlamini,____as_ ___advancing_ ___the_ ___same_ _argument_ _15_ _during the hearing.___**He argued that the gravamen of the Applicant's complaint, is not the apprehension of bias, but is institutional basis**__ ___emanating from the fact that the_ _1'__1_ _Respondent is partner in the_ ___same_ 15 i.e. institutional bias; own emphasis and underlining _law_ ___firm_ ___as_ ___the_ ___attorney_ ___that_ ____**represented**__ ___the_ ___Applicant's_ ___ex_ ___colleague_ ___....___ This would suggest that Mr Dlamini, during the course of argument, changed tack from the point of departure set out in the Founding Affidavit but on an overall perspective, one is inclined to give Mr Dlamini the benefit of the doubt in the sense that his submissions may have been misunderstood or misconstrued by the Court _a_ ___quo._ 2. In any event, it appears evident that institutional bias was not the appropriate and therefore not the true or conect rule of law governing the factual matrix in question. 2. Yet, the matter did not end there in that the Court _a quo_ in fact also dealt with the Employee's allegations as to a conflict posed by _ongoing_ legal representation and more specifically, in Paragraph 28 of the Judgment quoted above, by holding, in a somewhat terse _ratio decidendi,_ but a _ratio decidendi_ never the less, that: _**"They are to the effect that, he acted irregularly by not declaring**_ ___**an**_ ___**obvious**_ ___**conflict**_ ___**of**_ ___**interest**_ ___**arising**_ ___**from**_ ___**the**_ ___**office**_ ___**representing a fellow employee. We find that such allegations are not supported by facts."**_ 2. The Court _a quo_ in effect made a factual finding that there was no ongoing representation as was alleged by the Employee, and this factual finding cannot be disturbed on appeal. On the face of it, therefore, this ground of appeal is doomed to fail. 2. However, what appears not to have been taken into account by the Court _a_ _quo,___ was that it was common cause that the Chairman's firm, at least at some stage, had acted as the other employee's legal representatives i.e. that there had been such legal representation _per_ ___se.___ A fact that is common cause would have the same legal effect as an express factual finding, incapable of being disturbed on appeal and thus serving as a point of departure for detennining a question of law. 2. It is evident that the Court _a_ ___quo_ __ had overlooked the legal implications oflegal representation _per se_ of a fellow employee implicated in the same alleged misconduct. This Court cannot simply turn a blind eye to the potential ramifications of an issue which may have demanded closer enquiry and scrutiny but did not enjoy same. Not only are the Comi _a_ ___quo_ __ and this Comi enjoined by the Act to ".. _.promote fairness and equity in labour relations"_ but in terms of its _Rule_ ___7,_ this Comi shall not be confined to the grounds stated in the notice of appeal, which would permit for re-examination of this evident oversight. 2. A detailed analysis as to whether the legal duties of att01neys towards their clients (including as regards confidentiality) endure after tennination of mandate by either, is not necessary at this junction. The issue can be simply considered against the backdrop of the following statements in the _**Lynette Groening**_ case and by **Grogan,** referred to above: _"10.__**Naturally an attorney may be disqualified from presiding**_ _**if**_ _**he/she has any personal interest in the case over and above his professional remuneration**_ __**or if there is anv other**__ ____**feature or involvement which**__ ____**precludes him/her from hearing the matter fairlv and impartially and**__ ____**reaching an independent decision"**____ and _**"The rule against bias emanates fi·om administrative law, which requires that an officer presiding at a disciplinary**_ ___**hearing**_ ___**not**_ ___**only**_ ___**be**_ ___**impartial**_ ___**in**_ ___**fact,**____**but**_ ___**also**_ ___**that**_ ____**there**__ ______**should**__ __**be no ground for even suspecting that his or her decision might be shaped**__ ____**bv extraneous factors, even**__ __**if**__ __**this is in fact not the**__ ______**case**__ _**.**__"_ 2. The Employee raised the possibility that he may argue that that the other employee was negligent and should be held liable. A possibility of conflict or counter-accusations between the relevant co-accused employees therefore need to be taken into account. It does not require a stretch of the imagination that any possible finding adverse to the Employee by the Chairman which directly or indirectly favours the other employee, would immediately raise the spectre of bias of loyalty to a former client. 2. It does not matter whether there is actual bias or not and whether or not such legal representation was only temporary or still ongoing; the crucial enquiry is whether it can be said that the facts and circumstances are such as to bring about, in the mind of a reasonable litigant, _"even a suspicion"_ that the Chairman's decision _might_ be shaped by the extraneous factor of such representation. [3O] The applicability of the rule against bias in the case of legal representation _per se,___ evidently was overlooked by the Court _a_ ___quo_ __ and the Court _a_ ___quo_ __ did not apply same to the facts. 17 31. In the end result, the appeal should be allowed on this basis. 2. **Second to Fourth Grounds of** **Appeal** 16 Own underlining 17 _Cf_ __**Registrar of the High Court**__ _& ___**2 Others v Sabatha Faith Gumedze**__ ___supra_ 31. These grounds revolve around the issue of conflict, which has been decisively addressed above. It therefore is not necessary to consider the further grounds, including determining whether these Grounds constitute questions of law or questions or fact. 3. **Fifth Ground i.e.**_**"The Court a quo erred in law and in fact in issuing a final judgement without one member of the Court consenting to such a judgement. The structure of the Industrial Court is such that all the members of the Court and the Presiding Judge must agree before a judgement can be issued to the**_ ___**parties."**_ 31. This ground is defeated by _**Section 8(6)**_ of the Act, which provides that: _**"(6)**__**Any matter of law arising for decision at a**_ ___**sitting of the Court and**_ _**any question as to whether a matter for decision is a matter of law or a matter of fact shall be decided by the presiding judge of the Court provided that on all other issues, the decision of the majority of the members shall be the decision of the Court."**_ 2. **RESPONDENTS' GROUNDS OF** **APPEAL** 31. It is trite that the mere filing of an application in the Industrial Court does not in law automatically stay disciplinary proceedings. 31. The Respondents' remammg Ground of Appeal is to the effect that the Chairman had to pronounce on the issue of a stay first, before the application including the prayer for a stay could be ente1iained by the Court _a_ ___quo.___ This indubitably constitutes a question of law in that: __**"the question for argument**__ ____**and determination is what the true rule of law is on a certain matter.".**____ 18 31. The Court _a quo_ decided this point without reference to any statute law or to case authorities and evidently, did so on a basis of what would be just, prudent and fair. 19 31. As authority for the contention that the Chairman first had to decide an application for stay, Mr Jele referred this Court to cases that are to the effect that issues are to be determined by the Chailman first. 1. As a general principle, these cases would appear to be persuasive but closer examination of the specifics demonstrate that this cannot serve as a broad and unqualified notm in that specified _"issues"_ could be disce1ned only in the cases of _**Mbongseni**_ ___**Nkambule**_ ___**v**_ ___**Majozi**_ ___**Sithole**_ ___**and**_ ___**Another,**____**Case**_ ___**No 7/2018**_ and _**Ndoda Simelane v National Maize C01poration, Case No 452/2016.**_ 2. The latter entailed whether the relevant employee had been entitled to legal representation and the main issues in the former were objections that the employee had been charged by the wrong person and that no offence had been committed. None of these cases dealt with procedural mechanisms such as a postponement or a stay. 18 _**Swaziland Electricity Baard v Callie Dlamini**_ case _supra_ 19 Paragraph [5] _supra_ 31. It is the Employee's contention that a preceding stay decision is not required and Mr Dlamini adopted a sweeping argument attacking the very justifiability of the rule that the Industrial Court will only interfere in incomplete disciplinary matters in exceptional circumstances. Mr Dlamini articulated this argument follows: _**"It is**_ _**titus**_ _**submitted that reading the provisions of the Industrial Relations Act 2000 holistically, there is nothing therein, directly or indirectly; expressly or impliedly, in which it can be said or inferred that the legislature intended that access to the Industrial Court, in the context of disciplinary hearings, should only be allowed in exceptional circumstances. In the contrary, we find provisions that opens the door wide to any aggrieved employee by a decision or action taken by the employer in disciplinary proceedings."**_ 31. For current purposes, Mr Dlamini's above submission will be considered within the context of an application for a stay only. 31. The Industrial Comt is a creature of statute and access to it is defined in the Act and the Rules of the Industrial Court promulgated under _section 22_ thereof. The salient aspects thereof can be summarised as follows: 1. _Section_ ___8_ of the Act vests the Industrial Court with exclusive jurisdiction to hear all matters, be it arising out of enactment or common law, where the dispute pettains to employer-employee relationship, but subject to _**sections**_ ___**17**_ (arbitration) and _**65**_ (Patt VIII, CMAC.) 2. _**Section 65,**_ in turn, is qualified by the Rules, and in particular _**Rules 14**_ and _**15\. Sub-Rule 14(1)**_ reads: _"Where a material dispute of/act is not reasonably_ _foreseen, a party may institute an application by way of notice of motion supported by affidavit;"__**Sub-Rule 14(6)(b)**_ requires attachment to the applicant's affidavit _"In_ ___the_ ___case_ ___of_ ___an_ ___application_ ___involving_ ___a_ ___dispute_ ___which requires_ ___to_ ___be_ ___dealt_ ___with_ ___under_ ___Part_ ___VIII_ ___of_ ___the_ ___Act,____a_ ___certificate_ ___of_ ___unresolved dispute issued by the Commission, unless the application_ is _solely for the determination_ ___of_ ___a_ ___question_ ___of_ ___law"_ and _**Sub-Rule**_ ___**14(12)**_ provides that: _"An interlocutory_ ___application_ ___or_ ___an_ ___application_ ___for_ ___the_ ___registration_ ___of_ ___a_ ___settlement agreement_ ___an_ ___arbitration_ ___award_ ___or_ ___a_ ___collective agreement,____may_ ___be_ ___set_ ___down on at least four (4) days'__notice...."__**Sub-Rule 15**_ provides for urgent applications, _**Sub-Sub-Rule 2(a)**_ calling _for:_ "... _the reasons why the provisions_ ___of_ ___Part_ ___VIII_ ___of_ ___the_ ___Act_ ___should_ ___be_ ___waived.___ " 31. It is clear that there is no provision contained in the Act or in the Rules that stipulates or suggests that disciplinary proceedings have to be stayed formally on application to the Chairman, before the affected employee may approach the Industrial Court for relief in respect of those proceedings, including a Comt application for the stay of those proceedings. 31. Not only is it for Parliament, and not for the Courts, to make laws governing the Industrial Comt but an overview of case authorities also is counter­ indicative of a legislative intent that the Chairman should be approached for a stay first. 1. None of the authorities that this Comt was referred to, suggest that it is not competent for the Court _a_ ___quo_ __ to order a stay unless a stay had been applied for first at disciplinaiy hearing level. 2. On the contrary, such prayers are not unlmown: in _**Vikinduku Dlamini v SWANNEPHA (02/14)**_**[[2014] SZICA 05](/akn/sz/judgment/szica/2014/05) (30 September 2014), **for instance, an order staying the disciplinary proceedings issued by consent and in _**Jeffrey Jele v Maloma Colliery Limited**_**& **_**Four Others (182/13) [2013]**_**SZIC 20 (19 June 2013),** also a recusal review application, there had been a prayer for a stay which ultimately did not require decision since the disciplinary hearing had been postponed. 3. That a stay is justified in cases involving recusal, appears from the case of _**Rudolph V Mananga College**_ above wherein it was held that it was not a requirement for an employee to wait until the termination of a disciplinary enquiry before challenging the refl.1sal by a Chairman to recuse himself. If so, the question arises whether, at the end of the day, it really matters at which level the application for a stay is made. 4. One is mindful that the issue now before Court may not have been raised expressly in the cases refetTed to above but by the same token, the apparent absence of objections in the past would suggest acceptance of such prayers as being appropriate. 31. It follows from the above and in particular, from the absence of a statutory injunction analogous to compliance with Part VIII of the Act, that an applicant may apply to the Industrial Court as first port of call for a stay of the disciplinary proceedings and consequently, that the question of law raised by the Employer has to be answered in favour of the Employee. 2. **CONCLUSIONS AND** **ORDER** 31. For the aforegoing reasons, the appeal must succeed and the cross-appeal cannot be upheld. 31. Accordingly, the following order is made: 1. The appeal is allowed and the Order of the Industrial Court is set aside and substituted with the following Order: _"1. The decision of the First Respondent declining to recuse himself as Chairperson of the disciplinary hearing against the Applicant is hereby reviewed and set_ ___aside._ 2. _The First Respondent is ordered to recuse himself from the disciplinary proceedings against the_ ___Applicant._ 3. _No order as to_ ___costs."_ 2. The cross-appeal is dismissed. 2. No order as to costs. **JUSTICE OF APPEAL** I agree **S.NSIBANDE****JUDGE PRESIDENT** I agree **D.MAZIBUKO JUSTICE OF APPEAL** For the Appellant: Mr. B.S Dlamini ofB S Dlamini & Associates For the Second Respondent: Mr. Z. Jele of Robinson Bertram Attorneys #### __Related documents ▲ To the top >