Msibi v Eswatini Civil Aviation Authority And Another (11 of 2022) [2022] SZIC 11 (22 February 2022)

# Msibi v Eswatini Civil Aviation Authority And Another (11 of 2022) [2022] SZIC 11 (22 February 2022) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szic/2022/11/eng@2022-02-22) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szic/2022/11/eng@2022-02-22) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szic/2022/11/eng@2022-02-22) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szic/2022/11/eng@2022-02-22) [ __](mailto:?subject=Take a look at this document from EswatiniLII: Msibi v Eswatini Civil Aviation Authority And …&body=https://eswatinilii.org/akn/sz/judgment/szic/2022/11/eng@2022-02-22) [ Download DOCX (18.1 KB) ](/akn/sz/judgment/szic/2022/11/eng@2022-02-22/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szic/2022/11/eng@2022-02-22/source.pdf) Report a problem __ * Share * [ Download DOCX (18.1 KB) ](/akn/sz/judgment/szic/2022/11/eng@2022-02-22/source) * [Download PDF](/akn/sz/judgment/szic/2022/11/eng@2022-02-22/source.pdf) * * * * * Report a problem __ ##### Msibi v Eswatini Civil Aviation Authority And Another (11 of 2022) [2022] SZIC 11 (22 February 2022) Copy citation * __Document detail * __Related documents Citation Msibi v Eswatini Civil Aviation Authority And Another (11 of 2022) [2022] SZIC 11 (22 February 2022) Copy Media Neutral Citation [2022] SZIC 11 Copy Court [Industrial Court of eSwatini](/judgments/SZIC/) Case number 11 of 2022 Judges [Msimango AJ](/judgments/all/?judges=Msimango%20AJ) Judgment date 22 February 2022 Language English Court Roll [Download PDF](/akn/sz/judgment/szic/2022/11/eng@2022-02-22/attachment/msibi-v-eswatini-civil-aviation-authority-and-another-2022-szic-11-22-february-2022.pdf) (176.0 KB) Summary Read full summary * * * Skip to document content ## _IN THE INDUSTRIAL COURT OF ESWATINI_ **HELD** **AT** **MBABANE** Case No.11/2022 In the matter between: ## NOMCEBO MSIBI And ## ESWATINI CIVIL AVIATION AUTHORITY SIMO SHONGWE N.O. Applicant 1st Respondent 2nd Respondent **Neutral Citation:** Nomcebo Msibi v Eswatini Civil Aviation Authority and Another (11/2022) [2022] SZIC 11 (21 February 2022) ## Coram: **DATE HEARD:** **MSIMANGO-ACTING JUDGE** _(Sitting with Mr._ S. _Mvubu and Ms.__N.__Dlamini_ \- _Nominated Members of the Court)_ 06th December, 2021 **DATE** **DELIVERED:** 22nd February, 2022 _Summary: The applicant has filed an application against the Respondents requesting the Court to overturn the chairperson's decision on the grounds that he did not exercise his discretion judiciously and fairly, by denying the Applicant permission to be represented by a union official not withstanding that the charge sheet permitted_ _her_ _to be represented/ assisted by a fellow employee or a representative of her choice._ ## JUDGEMENT 1. The Applicant is Nomcebo Msibi, an adult liSwati female, employed by the Respondent as an aviation Security officer and based at the Respondent's principal place of business in Matsapha. 2. The pt Respondent is Eswatini Civil Aviation Authority (ESWACAA) a category a public enterprise established in terms of **Section 4 of Civil Aviation** **Act** **No.** **10** **of** **2009.** A body' corporate, capable of suing and being sued in its own name and having its principal place of business in Matsapha, in the Manzini Region. 3. The 2nd Respondent is Simo Shongwe who is the manager of Aerodrome and Navigation Services in the 1st Respondent employ and is cited in his capacity as the chairperson of the disciplinary hearing. 4. The Applicant has instituted the present legal proceedings under a certificate of urgency for an order in the following terms:- _]._ _Dispensing_ _with_ _the_ _usual_ _forms_ _and_ _procedures_ _and_ _time_ _limits_ _relating to_ _the_ _institution_ _of_ _proceedings_ _and_ _allowing_ _this_ _matter to_ _be_ _heard as a matter of_ _urgency._ 2. _That_ _a_ _rule_ _nisi_ _do_ _issue_ _with_ _immediate_ _and_ _interim_ _effect,_ _calling_ _upon the Respondent to show cause on a date to be appointed by this Honourable Court, why an order in the following terms should not be final:-_ 1. _That the decision of the 2_ _nd_ _Respondent's ruling that the Applicant is not entitled to be represented by an unrecognized union official at the disciplinary hearing is set_ _aside._ 2. _That_ _the_ _Applicant_ _is_ _permitted_ _to_ _be_ _represented_ _by_ _her_ _union_ _Eswatini Transport and Allied Labour Union (ESTRALU) at the disciplinary hearing._ 3. _That the contemplated disciplinary hearing set for the 1_ _st_ _February 2022_ _be_ _held_ _on_ _a_ _suitable_ _date_ _to_ _the representatives_ _of_ _both_ _parties._ 4. _That service upon the 1_ _st_ _Respondent in these proceedings be deemed to be sufficient service on the 2_ _nd_ _Respondent._ 5. _That_ _**prayers 2.2, 2.3 and 2.4**_ _above operate with immediate and interim effect pending finalisation of this_ _Application._ 3. _Costs be awarded against the_ _Respondents._ 2. _Further and/or alternative_ _relief_ 5. # The Applicant argues that on the 11t_h January 2022 she was served with a charge sheet, wherein she was accused of misconduct and she was summoned to a disciplinary hearing on the 20th January 2022. She was advised that she had a right to be represented/ assisted by a fellow employee, and/or an employee representative of her choice. 6. On the 20th January 2022, the Applicant went to the disciplinary hearing with the Secretary General of her union. The pt Respondent objected to the union's official representation and submitted that the Applicant should get someone internal. 7. The chairperson issued a rnling in .favour of the 1st Respondent, in the process denying the Applicant permission to be represented by a union official not withstanding that the charge sheet permitted her to be represented by a representative of her choice. 8. The Applicant argues that she caim·ot be represented by any fellow employees of the Respondent, for the reason that they are conflicted in one way or the other. 9. The Applicant submitted that the chairperson failed to use his discretion judiciously for the following reasons:- 1. The initiator being an admitte attorney cannot be faced by any layperson. 2. The charge sheet permits representation of choice. 3. The charges being theft of stokvel money makes any employee conflicted. (v) The charge being theft is so serious that the Applicant may be dismissed if found guilty. [1O] Hence, the Honourable Court must review and set aside the decision of the chairperson. 11. The Respondent submitted that there is a pending dispute at Conciliation Mediation and Arbitration Commission (CMAC) on the recognition of Eswatini Transport and Allied Labour Union (ESTALU). Thus the Court has on numerous occasions held that an employee is entitled to be represented by a union official in internal disciplinary proceedings, provided the collective agreement between the parties specifically provides for that. 12. Furthermore, **clause 3.12 of the Disciplinary Code** and procedure of the 1st Respondent states that: _"At each stage of the formal disciplinary process, individuals have the right,__if_ _they so wish to be accompanied by a fellow member of staff or by an appropriate representative of an independent trade union (recognised by ESWACAA). Individuals may not, however, be accompanied by any external person acting as a legal representative at any stage of the procedure."_ 11. # It was not in dispute that the Applicant has a right to be represented at the hearing. The only question that arose was whether she could be represented by a trade union official,:as she is not a trade union official or trade union bearer. 12. The Respondent argued that a union/union official does not have _locus standi_ to represent workers in the absence of a Recognition Agreement, and submitted that this principle should apply in equal force to internal disciplinary hearings. The case of **SMAWU and Others v LEO Garments (Pty) Ltd Case No. 387/2008 (IC)** was relied upon in support of this argument. In that case the Court held that: _**"It is (herefore clear to the Court that the**_ _**JS**_ _**1**_ _**Applicant has no locus standi injudicio,firstly because there is no valid binding collective agreement between the**_ ___**parties."**_ 11. In the present case there was no collective agreement or recognition agreement between the parties that was produced in Court. The Applicant herself admitted in her founding affidavit that the aspect of recognition between the parties has not been finalised, it is a pending dispute before CMAC. 12. His the Court's view that unless express provision is made in a collective agreement for the right to representation by a union official at disciplinary hearings, an employee has no entitlement as of right to such representation. An employee does however have a right to be represented by a fellow employee or a workplace representative, such as a shop steward or a works council representative. [ I 7] It must also be mentioned that the disciplinary hearing is guided by a disciplinary code, specifically **clause** **3.12.** Where the disciplinary process is governed by an agreed disciplinary code, then the parties should strictly comply with the provisions thereo( or the reason that it is binding on the parties. 18. This principle was emphasized by the Court in the case **ofDenel** **(Pty)** **Ltd v Voster (2004) 25 ILJ 659 SCA,** where it was held that:- 1. **The disciplinary code ,as incorporated int!) the contract of employment is binding between the employer and an employee.** 2. **Neither the employer µor employee is at liberty to disregard the obligations imposed in the code since those obligations have a contractual** **effect.** 3. **Where there is a breach of the code, the innocent party is entitled to enforce compliance by Court Order if necessary.** 19. In simple terms, when parties agree on the provisions of the code, they also intend to be bound by its contents. That being the case, the Court is inclined to find that the chairperson was acting in terms of the disciplinary code which empowered him to refuse that the Applicant be represented by an external person at the hearing. In that case the decision of the chairperson is not subject to review. 20. In this regard the Court aligns itself with the ruling in the matter of **Jiba** **v Minister of Justice and Constitutional Development and 16 Others ZALC JHB Case No. J167/2009,** where the Court held that:- _**"Urgent applications to review and set aside preliminary rulings**_ _**made in the course of enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged."**_ .. 18. In the circumstances we come to the conclusion that the Applicant has not made out a case for the intervention of the Court in her incomplete disciplinary hearing. The following order is hereby made:- 1. The application is dismissed. 2. Each party is to pay its own costs. The Members agree. ___-.__(¾.cs_ ___­_ ## L. MSIMANGO **ACTING JUDGE OF THE INDUSTRIAL COURT** FOR APPLICANT: Mr. B.K. Thwala Eswatini Transport and Allied Labour Union FOR RESPONDENT: Mr. S. Masuku Howe Masuku Nsibande Attorneys #### __Related documents ▲ To the top >