IN THE INDUSTRIAL COURT OF SWAZILAND

 

HELD AT MBABANE                                                         CASE NO. 470/05

 

In the matter between:

 

ANDREAS NALA NKABINDZE                                       APPLICANT

 

And

SWAZILANDELECTRICITY BOARD                            RESPONDENT

 

CORAM:

NKOSINATHI NKONYANE                                   :           JUDGE

DAN MANGO                                                           :           MEMBER

GILBERT NDZINISA                                              :           MEMBER

 

FOR APPLICANT                                                   :           MR. S. MASUKU

 

 

 

[1]     This is an application for determination of an unresolved dispute brought by the Applicant against the Respondent in terms of Section 85(2) of the Industrial Relations Act, 2000 as amended.

 

 

[2]     The Applicant is an adult male Swazi National of Mbabane, Hhohho Region.  He is a former employee of the Respondent.  When he stopped working for the Respondent on 2^nd September 2003, he was holding the position of General Manager – Finance.  He had been in the employ of the Respondent as of 1^st July 1981.  The Respondent is a company duly incorporated in accordance with the company laws of the country and has its head office in Mbabane, Hhohho Region.

         

[3]     The Applicant in his papers claims that he was unfairly terminated by the Respondent on 2^nd September 2003 following a restructuring process undertaken by the Respondent.  The Applicant averred in his papers that the restructuring process was unfair both substantively and procedurally and was mala fide because;

 

• He was not consulted in any meaningful way.

 

• The restructuring process was designed to rid the Respondent of employees it no longer wanted and he was one of the employees that the Respondent no longer wanted.

 

• The Applicant had no option but to accept the exit package offered by the Respondent.  The Applicant accepted the package without any of his rights in respect of the termination of his employment being compromised.

 

[4]     The Respondent in its replies denied that the Applicant was unfairly terminated.  The Respondent averred that it was carrying out a restructuring exercise in pursuance of a report by Price Waterhouse Coopers, and pursuant to the consultation process the Applicant was offered, and he accepted an exit package and he was given the option to apply for positions in the restructured organization, and the Applicant did apply.

 

[5]     The evidence led in court revealed that the Applicant left the Respondent’s employ together with other senior managers.  Before the restructuring that followed the Price Waterhouse Coopers report, there had been another study commissioned by the Respondent to audit its productivity as a Corporation.  That study was carried out by an entity called SADELEC.  In terms of the SADELEC report, the senior managers were to be placed on performance based contracts of employment.  The appointment of the Applicant also had to be formalized in order to comply with the requirements of the Public Enterprise and Monitoring Unit, PEU.  The implementation of the SADELEC report and the formalization of the appointment of the Applicant could not take place as there was no substantive Chief Executive Officer, CEO, at that time.  A substantive CEO, Mr. Themba Tsela was eventually appointed and he duly started the implementation processes.  During that period the Respondent also commissioned Price Waterhouse Coopers to review the Respondent’s management structure.  These consultants were mandated to investigate, inter alia, the current management structure, recommend an appropriate management structure, evaluate and grade the positions.  The consultants carried out their task and compiled a report and presented the findings to the Respondent’s Board.

 

[6]    The senior managers, including the Applicant were each interviewed by the officers from Price Waterhouse Coopers, in particular a certain Mr.  Fred Camphor.  The findings of the consultants were not favourable to some of the senior managers including the Applicant.  One of the findings by the consultants was that the posts of General Managers should be reduced from seven to four, hence the Respondent started the restructuring process.

 

[7]    The report of the consultants was unfortunately leaked to the press.  In the report of the local weekend newspaper, “The Swazi News” of 09^th August 2003 it carried the headline that seven senior managers of the Respondent had been sent home.  This newspaper report was the cause of the lack of trust during the consultation process, as the Applicant and the other managers who were earmarked for the retrenchment were of the view that the Respondent had already made up its mind that they would be retrenched and therefore the consultation exercise was just a sham.

 

[8]    It was therefore the Applicant’s case before the court that the restructuring exercise was flawed for lack of proper consultation because;

 

8.1    The Respondent had already taken a decision to retrench them.

 

8.2    Theywere not given the minutes of the consultation meetings even when they asked for them.

 

• The Respondent refused to meet with them as a group.

 

• They were not given the consultants’ report hence they could not properly prepare for the consultative meetings.

 

 [9]   The Respondent’s defence which was put to the Applicant and his witness, AW1, Harry Sikelela Nkambule was that the report could not be made public because the Respondent wanted to protect the names of some of the senior managers against whom damning findings had been made.  The evidence also revealed that the Respondent took a defensive stance because it did not condone the conduct of the senior managers who wanted to bring political pressure to bear on the matter which the respondent had the capacity to handle.  The evidence revealed that the senior managers approached a member of the Swazi National Council, Moi Moi Masilela.  They also went to seek audience of the then Minister for Natural Resources, Mr. Mahlaba Mamba on a weekend at his home at Dvokodvweni.  In response the Applicant and AW2 said they did what they did out of desperation as the Respondent was refusing to give them the report of the consultants.

 

[10]  ABSOLUTION FROM THE INSTANCE:

 

         At the close of the case for the Applicant, the Respondent, through its counsel, indicated that it wished to apply for absolution from the instance and he did so, hence the present ruling.

 

[11]  In this court’s Rules, there is no provision for the procedure of absolution from the instance.  In terms of Rule 28 however, provision is made for the application of the High Court Rules where our Rules do not make provision for the procedure to be followed in any matter before the court.  Paragraph (b) of Rule 28 provides further that, where in the opinion of the presiding judge, the High Court Rules cannot be applied in the manner provided for by Paragraph (a), the court may determine its own procedures.  There was no suggestion, nor is the court of the view that the High Court rules cannot be applied in these proceedings with such qualifications, modifications and adaptations as the presiding judge may determine.

 

[12]  In the High Court Rules, the Rule applicable to applications for absolution from the instance is Rule 39 (6) and it provides that;

 

         “At the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event on his behalf may address the court and the plaintiff or one counsel on his behalf may thereupon reply on any matter arising out of the address of the plaintiff or his counsel.”

 

         The locus classicus on applications for absolution from the instance is the case of Gascoyne v. Paul and Hunter 1917 TPD. 170.          At page 173 of that judgement De Villiers JP stated as follows:-

 

         “At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the court is, is there evidence upon which a reasonable man might find for the plaintiff?...The question therefore is, at the close of the case for the plaintiff was there a prima facie case against the defendant Hunter; in other words, was there such evidence upon which a reasonable man might, not should give judgement against Hunter?”

 

         This implies that an applicant has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution, because without such evidence no court could find for the applicant.

 

         See:Claude Neon Lights (SA) v. Daniel

                 1976 (4) S.A. 403.

 

[13]  The formulation established in the Gascoyne case (supra), has been adapted to contemporary interpretations.   In the case of Gordon Lloyd Page and Associates v. Rivera and Another 2001 (1) S.A 88 (SCA) Harms JA after quoting the Claude Neon Lights case (supra), held that;

 

         “… The test has from time to time been formulated in different terms especially it has been said that the Court must consider whether there is evidence upon which a reasonable man might find for the plaintiff, a test which has its origin in jury trials when the ‘reasonable man’ was a reasonable member of thejury ….such a formulation tends to cloud the issue.  The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgement and not that of another ‘reasonable’ person or court”

 

         It is clear therefore that there is now a shift from the traditional approach in applications for absolution from the instance.  In the case of TWK Agriculture Limited v. Swaziland Meat industries and Simunye Cattle Company, Case No. 4263/05 (H.C.), Masuku J dealing with the question of absolution from the instance after having referred to the judgement of Harms JA supra, held at page seven that;

 

         “… The learned Judge of Appeal advocated for a test where the court trying the case (and not some other court or person), brings its own judgement to bear on the evidence adduced before it and it decides whether the plaintiff has at the close of its case, made out a case such that the court could or might find for it even in the absence of the defendant’s evidence at that stage …..”

 

         We are therefore inclined to also adopt the contemporary formulation of the test to be applied in the application for absolution from the instance in this case.  The question to be answered therefore is whether from the evidence presented by the applicant before the court, has the Applicant, at the close of its case, made out a case such that the court could or might find for it, even in the absence of the Respondent’s evidence?

 

[14]  The Applicant’s case both on the papers and in court and at CMAC was that he was unfairly dismissed following a restructuring exercise by the Respondent.  There was an attempt during the evidence to also say that the Applicant was constructively dismissed.  The Applicant’s counsel conceded during the submissions that there was no case of constructive dismissal that was established by the Applicant as envisaged by Section 37 of the Employment Act, 1980 as amended.  In any event, that was not the case of the Applicant on the pleadings before the court.  The case of the Applicant on the pleadings and in his evidence in court was that he was unfairly terminated as the result of a restructuring process that was not fairly carried out.

 

 

[15]  In a case where the Applicant claims that he was unfairly dismissed from his employment, the provisions of Section 42 of the Employment Act apply relating to the burden of proof.  In terms of Section 42(2), the burden is on the employer to prove;

 

“a)     that the reason for the termination was one permitted by Section 36; and

 

b)      that, taking into account all the circumstances of the case it was reasonable to terminate the service of the employee.”

 

[16]  Section 42(2) however must be read together with Section 42(1).  Section 42 (1) provides that;

“In the presentation of any complaint under this part the employee shall be required to prove that at the time his service were terminated that he was an employee to whom Section 35 applied.”

 

Section 35deals with the categories of employees whose services should not be unfairly terminated.  One of these employees is an employee who has finished his probation period and has been confirmed as a permanent employee. In the present case there was no dispute that the Applicant is an employee to whom Section 35 applied.  He was employed on a permanent basis by the Respondent.  The second requirement of Section 42(1) is that the Applicant must prove that his services were terminated by the employer.

 

[17]   The Applicant’s case was that he was unfairly terminated by the Respondent as the result of an unfair restructuring process.  The evidence in court however revealed that the Applicant was never retrenched by the Respondent.  The evidence showed that the Applicant and the other managers opted to take an exit package.

 

[18]   The evidence having revealed that the Applicant was never retrenched but took an enhanced exit package, there is therefore no case for the Respondent to answer.  The Applicant also said that he signed the Memorandum of Agreement on the enhanced exit package on 02^nd September 2003 under duress.  He attributed the duress to the fact that they were given very little time to consider the package.  He said they were given only two days to consider the package.  We do not agree that the time was short.  This was a process.  The employer was entitled to place time limits within which the affected parties could indicate whether they were accepting the package or not, so that the employer could consider the next step.  Consultations must not be open ended.  In light of the fact that this was an on going process, we do not think that the time frame was unreasonable.  There was no evidence in court that the Respondent exerted any undue pressure on the Applicant to accept the exit package.

 

[19]   The Applicant during the submissions sought to also rely on the provisions of the Memorandum of Agreement for his argument that he was terminated by the Respondent.  Clause 1 of that document states that;

 

          “1.  Whereas Andreas N. Nkabinde is an employee of Swaziland Electricity Board (SEB) and whereas SEB wishes to terminate the pensionable contract of employment with the said employee.”

 

          This argument does not take the Applicant’s case any further.  Both in court and at CMAC it was not his case that he was dismissed by virtue of the Memorandum of Agreement. Clause 2 of that document states clearly that the parties were separating because they had agreed on the exit package.  Clause 2 states that;

 

          “2. Whereas the parties are desirous to agree on an exit package it is hereby agreed as follows:”

 

          The Memorandum of Agreement further states in clause 3 that;

“It is further agreed that with regard to Pension the employee will be treated as though he is retiring at age 60 years and that his retirement will not be reduced.”

Retirement is one of the fair reasons upon which an employee’s services could be terminated in terms of Section 36 (k) of the Employment Act.  The question of unfairness or unlawfulness of the termination does not arise therefore if the termination of the employment contract is as the result of the employee retiring from the service.

 

[20]   Taking into account all the evidence before court and also taking into account all the circumstances of the case, we come to the conclusion that the Applicant has failed to establish a prima facie case which would require the Respondent to open its case.  In the result we make the following order;

 

20.1            The application for absolution from the instance is hereby granted.

20.2            The application having been dismissed at this stage we make no order as to costs.

 

The members agree.

         

         

          NKOSINATHI NKONYANE

         JUDGE OF THE INDUSTRIAL COURT 

 

IN THE INDUSTRIAL COURT OF SWAZILAND

 

HELD AT MBABANE                                                         CASE NO. 470/05

 

In the matter between:

 

ANDREAS NALA NKABINDZE                                       APPLICANT

 

And

SWAZILANDELECTRICITY BOARD                            RESPONDENT

 

CORAM:

NKOSINATHI NKONYANE                                   :           JUDGE

DAN MANGO                                                           :           MEMBER

GILBERT NDZINISA                                              :           MEMBER

 

FOR APPLICANT                                                   :           MR. S. MASUKU

 

 

 

[1]     This is an application for determination of an unresolved dispute brought by the Applicant against the Respondent in terms of Section 85(2) of the Industrial Relations Act, 2000 as amended.

 

 

[2]     The Applicant is an adult male Swazi National of Mbabane, Hhohho Region.  He is a former employee of the Respondent.  When he stopped working for the Respondent on 2^nd September 2003, he was holding the position of General Manager – Finance.  He had been in the employ of the Respondent as of 1^st July 1981.  The Respondent is a company duly incorporated in accordance with the company laws of the country and has its head office in Mbabane, Hhohho Region.

         

[3]     The Applicant in his papers claims that he was unfairly terminated by the Respondent on 2^nd September 2003 following a restructuring process undertaken by the Respondent.  The Applicant averred in his papers that the restructuring process was unfair both substantively and procedurally and was mala fide because;

 

• He was not consulted in any meaningful way.

 

• The restructuring process was designed to rid the Respondent of employees it no longer wanted and he was one of the employees that the Respondent no longer wanted.

 

• The Applicant had no option but to accept the exit package offered by the Respondent.  The Applicant accepted the package without any of his rights in respect of the termination of his employment being compromised.

 

[4]     The Respondent in its replies denied that the Applicant was unfairly terminated.  The Respondent averred that it was carrying out a restructuring exercise in pursuance of a report by Price Waterhouse Coopers, and pursuant to the consultation process the Applicant was offered, and he accepted an exit package and he was given the option to apply for positions in the restructured organization, and the Applicant did apply.

 

[5]     The evidence led in court revealed that the Applicant left the Respondent’s employ together with other senior managers.  Before the restructuring that followed the Price Waterhouse Coopers report, there had been another study commissioned by the Respondent to audit its productivity as a Corporation.  That study was carried out by an entity called SADELEC.  In terms of the SADELEC report, the senior managers were to be placed on performance based contracts of employment.  The appointment of the Applicant also had to be formalized in order to comply with the requirements of the Public Enterprise and Monitoring Unit, PEU.  The implementation of the SADELEC report and the formalization of the appointment of the Applicant could not take place as there was no substantive Chief Executive Officer, CEO, at that time.  A substantive CEO, Mr. Themba Tsela was eventually appointed and he duly started the implementation processes.  During that period the Respondent also commissioned Price Waterhouse Coopers to review the Respondent’s management structure.  These consultants were mandated to investigate, inter alia, the current management structure, recommend an appropriate management structure, evaluate and grade the positions.  The consultants carried out their task and compiled a report and presented the findings to the Respondent’s Board.

 

[6]    The senior managers, including the Applicant were each interviewed by the officers from Price Waterhouse Coopers, in particular a certain Mr.  Fred Camphor.  The findings of the consultants were not favourable to some of the senior managers including the Applicant.  One of the findings by the consultants was that the posts of General Managers should be reduced from seven to four, hence the Respondent started the restructuring process.

 

[7]    The report of the consultants was unfortunately leaked to the press.  In the report of the local weekend newspaper, “The Swazi News” of 09^th August 2003 it carried the headline that seven senior managers of the Respondent had been sent home.  This newspaper report was the cause of the lack of trust during the consultation process, as the Applicant and the other managers who were earmarked for the retrenchment were of the view that the Respondent had already made up its mind that they would be retrenched and therefore the consultation exercise was just a sham.

 

[8]    It was therefore the Applicant’s case before the court that the restructuring exercise was flawed for lack of proper consultation because;

 

8.1    The Respondent had already taken a decision to retrench them.

 

8.2    Theywere not given the minutes of the consultation meetings even when they asked for them.

 

• The Respondent refused to meet with them as a group.

 

• They were not given the consultants’ report hence they could not properly prepare for the consultative meetings.

 

 [9]   The Respondent’s defence which was put to the Applicant and his witness, AW1, Harry Sikelela Nkambule was that the report could not be made public because the Respondent wanted to protect the names of some of the senior managers against whom damning findings had been made.  The evidence also revealed that the Respondent took a defensive stance because it did not condone the conduct of the senior managers who wanted to bring political pressure to bear on the matter which the respondent had the capacity to handle.  The evidence revealed that the senior managers approached a member of the Swazi National Council, Moi Moi Masilela.  They also went to seek audience of the then Minister for Natural Resources, Mr. Mahlaba Mamba on a weekend at his home at Dvokodvweni.  In response the Applicant and AW2 said they did what they did out of desperation as the Respondent was refusing to give them the report of the consultants.

 

[10]  ABSOLUTION FROM THE INSTANCE:

 

         At the close of the case for the Applicant, the Respondent, through its counsel, indicated that it wished to apply for absolution from the instance and he did so, hence the present ruling.

 

[11]  In this court’s Rules, there is no provision for the procedure of absolution from the instance.  In terms of Rule 28 however, provision is made for the application of the High Court Rules where our Rules do not make provision for the procedure to be followed in any matter before the court.  Paragraph (b) of Rule 28 provides further that, where in the opinion of the presiding judge, the High Court Rules cannot be applied in the manner provided for by Paragraph (a), the court may determine its own procedures.  There was no suggestion, nor is the court of the view that the High Court rules cannot be applied in these proceedings with such qualifications, modifications and adaptations as the presiding judge may determine.

 

[12]  In the High Court Rules, the Rule applicable to applications for absolution from the instance is Rule 39 (6) and it provides that;

 

         “At the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event on his behalf may address the court and the plaintiff or one counsel on his behalf may thereupon reply on any matter arising out of the address of the plaintiff or his counsel.”

 

         The locus classicus on applications for absolution from the instance is the case of Gascoyne v. Paul and Hunter 1917 TPD. 170.          At page 173 of that judgement De Villiers JP stated as follows:-

 

         “At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the court is, is there evidence upon which a reasonable man might find for the plaintiff?...The question therefore is, at the close of the case for the plaintiff was there a prima facie case against the defendant Hunter; in other words, was there such evidence upon which a reasonable man might, not should give judgement against Hunter?”

 

         This implies that an applicant has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution, because without such evidence no court could find for the applicant.

 

         See:Claude Neon Lights (SA) v. Daniel

                 1976 (4) S.A. 403.

 

[13]  The formulation established in the Gascoyne case (supra), has been adapted to contemporary interpretations.   In the case of Gordon Lloyd Page and Associates v. Rivera and Another 2001 (1) S.A 88 (SCA) Harms JA after quoting the Claude Neon Lights case (supra), held that;

 

         “… The test has from time to time been formulated in different terms especially it has been said that the Court must consider whether there is evidence upon which a reasonable man might find for the plaintiff, a test which has its origin in jury trials when the ‘reasonable man’ was a reasonable member of thejury ….such a formulation tends to cloud the issue.  The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgement and not that of another ‘reasonable’ person or court”

 

         It is clear therefore that there is now a shift from the traditional approach in applications for absolution from the instance.  In the case of TWK Agriculture Limited v. Swaziland Meat industries and Simunye Cattle Company, Case No. 4263/05 (H.C.), Masuku J dealing with the question of absolution from the instance after having referred to the judgement of Harms JA supra, held at page seven that;

 

         “… The learned Judge of Appeal advocated for a test where the court trying the case (and not some other court or person), brings its own judgement to bear on the evidence adduced before it and it decides whether the plaintiff has at the close of its case, made out a case such that the court could or might find for it even in the absence of the defendant’s evidence at that stage …..”

 

         We are therefore inclined to also adopt the contemporary formulation of the test to be applied in the application for absolution from the instance in this case.  The question to be answered therefore is whether from the evidence presented by the applicant before the court, has the Applicant, at the close of its case, made out a case such that the court could or might find for it, even in the absence of the Respondent’s evidence?

 

[14]  The Applicant’s case both on the papers and in court and at CMAC was that he was unfairly dismissed following a restructuring exercise by the Respondent.  There was an attempt during the evidence to also say that the Applicant was constructively dismissed.  The Applicant’s counsel conceded during the submissions that there was no case of constructive dismissal that was established by the Applicant as envisaged by Section 37 of the Employment Act, 1980 as amended.  In any event, that was not the case of the Applicant on the pleadings before the court.  The case of the Applicant on the pleadings and in his evidence in court was that he was unfairly terminated as the result of a restructuring process that was not fairly carried out.

 

 

[15]  In a case where the Applicant claims that he was unfairly dismissed from his employment, the provisions of Section 42 of the Employment Act apply relating to the burden of proof.  In terms of Section 42(2), the burden is on the employer to prove;

 

“a)     that the reason for the termination was one permitted by Section 36; and

 

b)      that, taking into account all the circumstances of the case it was reasonable to terminate the service of the employee.”

 

[16]  Section 42(2) however must be read together with Section 42(1).  Section 42 (1) provides that;

“In the presentation of any complaint under this part the employee shall be required to prove that at the time his service were terminated that he was an employee to whom Section 35 applied.”

 

Section 35deals with the categories of employees whose services should not be unfairly terminated.  One of these employees is an employee who has finished his probation period and has been confirmed as a permanent employee. In the present case there was no dispute that the Applicant is an employee to whom Section 35 applied.  He was employed on a permanent basis by the Respondent.  The second requirement of Section 42(1) is that the Applicant must prove that his services were terminated by the employer.

 

[17]   The Applicant’s case was that he was unfairly terminated by the Respondent as the result of an unfair restructuring process.  The evidence in court however revealed that the Applicant was never retrenched by the Respondent.  The evidence showed that the Applicant and the other managers opted to take an exit package.

 

[18]   The evidence having revealed that the Applicant was never retrenched but took an enhanced exit package, there is therefore no case for the Respondent to answer.  The Applicant also said that he signed the Memorandum of Agreement on the enhanced exit package on 02^nd September 2003 under duress.  He attributed the duress to the fact that they were given very little time to consider the package.  He said they were given only two days to consider the package.  We do not agree that the time was short.  This was a process.  The employer was entitled to place time limits within which the affected parties could indicate whether they were accepting the package or not, so that the employer could consider the next step.  Consultations must not be open ended.  In light of the fact that this was an on going process, we do not think that the time frame was unreasonable.  There was no evidence in court that the Respondent exerted any undue pressure on the Applicant to accept the exit package.

 

[19]   The Applicant during the submissions sought to also rely on the provisions of the Memorandum of Agreement for his argument that he was terminated by the Respondent.  Clause 1 of that document states that;

 

          “1.  Whereas Andreas N. Nkabinde is an employee of Swaziland Electricity Board (SEB) and whereas SEB wishes to terminate the pensionable contract of employment with the said employee.”

 

          This argument does not take the Applicant’s case any further.  Both in court and at CMAC it was not his case that he was dismissed by virtue of the Memorandum of Agreement. Clause 2 of that document states clearly that the parties were separating because they had agreed on the exit package.  Clause 2 states that;

 

          “2. Whereas the parties are desirous to agree on an exit package it is hereby agreed as follows:”

 

          The Memorandum of Agreement further states in clause 3 that;

“It is further agreed that with regard to Pension the employee will be treated as though he is retiring at age 60 years and that his retirement will not be reduced.”

Retirement is one of the fair reasons upon which an employee’s services could be terminated in terms of Section 36 (k) of the Employment Act.  The question of unfairness or unlawfulness of the termination does not arise therefore if the termination of the employment contract is as the result of the employee retiring from the service.

 

[20]   Taking into account all the evidence before court and also taking into account all the circumstances of the case, we come to the conclusion that the Applicant has failed to establish a prima facie case which would require the Respondent to open its case.  In the result we make the following order;

 

20.1            The application for absolution from the instance is hereby granted.

20.2            The application having been dismissed at this stage we make no order as to costs.

 

The members agree.

         

         

          NKOSINATHI NKONYANE

         JUDGE OF THE INDUSTRIAL COURT 

 

IN THE INDUSTRIAL COURT OF SWAZILAND

 

HELD AT MBABANE                                                         CASE NO. 470/05

 

In the matter between:

 

ANDREAS NALA NKABINDZE                                       APPLICANT

 

And

SWAZILANDELECTRICITY BOARD                            RESPONDENT

 

CORAM:

NKOSINATHI NKONYANE                                   :           JUDGE

DAN MANGO                                                           :           MEMBER

GILBERT NDZINISA                                              :           MEMBER

 

FOR APPLICANT                                                   :           MR. S. MASUKU

 

 

 

[1]     This is an application for determination of an unresolved dispute brought by the Applicant against the Respondent in terms of Section 85(2) of the Industrial Relations Act, 2000 as amended.

 

 

[2]     The Applicant is an adult male Swazi National of Mbabane, Hhohho Region.  He is a former employee of the Respondent.  When he stopped working for the Respondent on 2^nd September 2003, he was holding the position of General Manager – Finance.  He had been in the employ of the Respondent as of 1^st July 1981.  The Respondent is a company duly incorporated in accordance with the company laws of the country and has its head office in Mbabane, Hhohho Region.

         

[3]     The Applicant in his papers claims that he was unfairly terminated by the Respondent on 2^nd September 2003 following a restructuring process undertaken by the Respondent.  The Applicant averred in his papers that the restructuring process was unfair both substantively and procedurally and was mala fide because;

 

• He was not consulted in any meaningful way.

 

• The restructuring process was designed to rid the Respondent of employees it no longer wanted and he was one of the employees that the Respondent no longer wanted.

 

• The Applicant had no option but to accept the exit package offered by the Respondent.  The Applicant accepted the package without any of his rights in respect of the termination of his employment being compromised.

 

[4]     The Respondent in its replies denied that the Applicant was unfairly terminated.  The Respondent averred that it was carrying out a restructuring exercise in pursuance of a report by Price Waterhouse Coopers, and pursuant to the consultation process the Applicant was offered, and he accepted an exit package and he was given the option to apply for positions in the restructured organization, and the Applicant did apply.

 

[5]     The evidence led in court revealed that the Applicant left the Respondent’s employ together with other senior managers.  Before the restructuring that followed the Price Waterhouse Coopers report, there had been another study commissioned by the Respondent to audit its productivity as a Corporation.  That study was carried out by an entity called SADELEC.  In terms of the SADELEC report, the senior managers were to be placed on performance based contracts of employment.  The appointment of the Applicant also had to be formalized in order to comply with the requirements of the Public Enterprise and Monitoring Unit, PEU.  The implementation of the SADELEC report and the formalization of the appointment of the Applicant could not take place as there was no substantive Chief Executive Officer, CEO, at that time.  A substantive CEO, Mr. Themba Tsela was eventually appointed and he duly started the implementation processes.  During that period the Respondent also commissioned Price Waterhouse Coopers to review the Respondent’s management structure.  These consultants were mandated to investigate, inter alia, the current management structure, recommend an appropriate management structure, evaluate and grade the positions.  The consultants carried out their task and compiled a report and presented the findings to the Respondent’s Board.

 

[6]    The senior managers, including the Applicant were each interviewed by the officers from Price Waterhouse Coopers, in particular a certain Mr.  Fred Camphor.  The findings of the consultants were not favourable to some of the senior managers including the Applicant.  One of the findings by the consultants was that the posts of General Managers should be reduced from seven to four, hence the Respondent started the restructuring process.

 

[7]    The report of the consultants was unfortunately leaked to the press.  In the report of the local weekend newspaper, “The Swazi News” of 09^th August 2003 it carried the headline that seven senior managers of the Respondent had been sent home.  This newspaper report was the cause of the lack of trust during the consultation process, as the Applicant and the other managers who were earmarked for the retrenchment were of the view that the Respondent had already made up its mind that they would be retrenched and therefore the consultation exercise was just a sham.

 

[8]    It was therefore the Applicant’s case before the court that the restructuring exercise was flawed for lack of proper consultation because;

 

8.1    The Respondent had already taken a decision to retrench them.

 

8.2    Theywere not given the minutes of the consultation meetings even when they asked for them.

 

• The Respondent refused to meet with them as a group.

 

• They were not given the consultants’ report hence they could not properly prepare for the consultative meetings.

 

 [9]   The Respondent’s defence which was put to the Applicant and his witness, AW1, Harry Sikelela Nkambule was that the report could not be made public because the Respondent wanted to protect the names of some of the senior managers against whom damning findings had been made.  The evidence also revealed that the Respondent took a defensive stance because it did not condone the conduct of the senior managers who wanted to bring political pressure to bear on the matter which the respondent had the capacity to handle.  The evidence revealed that the senior managers approached a member of the Swazi National Council, Moi Moi Masilela.  They also went to seek audience of the then Minister for Natural Resources, Mr. Mahlaba Mamba on a weekend at his home at Dvokodvweni.  In response the Applicant and AW2 said they did what they did out of desperation as the Respondent was refusing to give them the report of the consultants.

 

[10]  ABSOLUTION FROM THE INSTANCE:

 

         At the close of the case for the Applicant, the Respondent, through its counsel, indicated that it wished to apply for absolution from the instance and he did so, hence the present ruling.

 

[11]  In this court’s Rules, there is no provision for the procedure of absolution from the instance.  In terms of Rule 28 however, provision is made for the application of the High Court Rules where our Rules do not make provision for the procedure to be followed in any matter before the court.  Paragraph (b) of Rule 28 provides further that, where in the opinion of the presiding judge, the High Court Rules cannot be applied in the manner provided for by Paragraph (a), the court may determine its own procedures.  There was no suggestion, nor is the court of the view that the High Court rules cannot be applied in these proceedings with such qualifications, modifications and adaptations as the presiding judge may determine.

 

[12]  In the High Court Rules, the Rule applicable to applications for absolution from the instance is Rule 39 (6) and it provides that;

 

         “At the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event on his behalf may address the court and the plaintiff or one counsel on his behalf may thereupon reply on any matter arising out of the address of the plaintiff or his counsel.”

 

         The locus classicus on applications for absolution from the instance is the case of Gascoyne v. Paul and Hunter 1917 TPD. 170.          At page 173 of that judgement De Villiers JP stated as follows:-

 

         “At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the court is, is there evidence upon which a reasonable man might find for the plaintiff?...The question therefore is, at the close of the case for the plaintiff was there a prima facie case against the defendant Hunter; in other words, was there such evidence upon which a reasonable man might, not should give judgement against Hunter?”

 

         This implies that an applicant has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution, because without such evidence no court could find for the applicant.

 

         See:Claude Neon Lights (SA) v. Daniel

                 1976 (4) S.A. 403.

 

[13]  The formulation established in the Gascoyne case (supra), has been adapted to contemporary interpretations.   In the case of Gordon Lloyd Page and Associates v. Rivera and Another 2001 (1) S.A 88 (SCA) Harms JA after quoting the Claude Neon Lights case (supra), held that;

 

         “… The test has from time to time been formulated in different terms especially it has been said that the Court must consider whether there is evidence upon which a reasonable man might find for the plaintiff, a test which has its origin in jury trials when the ‘reasonable man’ was a reasonable member of thejury ….such a formulation tends to cloud the issue.  The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgement and not that of another ‘reasonable’ person or court”

 

         It is clear therefore that there is now a shift from the traditional approach in applications for absolution from the instance.  In the case of TWK Agriculture Limited v. Swaziland Meat industries and Simunye Cattle Company, Case No. 4263/05 (H.C.), Masuku J dealing with the question of absolution from the instance after having referred to the judgement of Harms JA supra, held at page seven that;

 

         “… The learned Judge of Appeal advocated for a test where the court trying the case (and not some other court or person), brings its own judgement to bear on the evidence adduced before it and it decides whether the plaintiff has at the close of its case, made out a case such that the court could or might find for it even in the absence of the defendant’s evidence at that stage …..”

 

         We are therefore inclined to also adopt the contemporary formulation of the test to be applied in the application for absolution from the instance in this case.  The question to be answered therefore is whether from the evidence presented by the applicant before the court, has the Applicant, at the close of its case, made out a case such that the court could or might find for it, even in the absence of the Respondent’s evidence?

 

[14]  The Applicant’s case both on the papers and in court and at CMAC was that he was unfairly dismissed following a restructuring exercise by the Respondent.  There was an attempt during the evidence to also say that the Applicant was constructively dismissed.  The Applicant’s counsel conceded during the submissions that there was no case of constructive dismissal that was established by the Applicant as envisaged by Section 37 of the Employment Act, 1980 as amended.  In any event, that was not the case of the Applicant on the pleadings before the court.  The case of the Applicant on the pleadings and in his evidence in court was that he was unfairly terminated as the result of a restructuring process that was not fairly carried out.

 

 

[15]  In a case where the Applicant claims that he was unfairly dismissed from his employment, the provisions of Section 42 of the Employment Act apply relating to the burden of proof.  In terms of Section 42(2), the burden is on the employer to prove;

 

“a)     that the reason for the termination was one permitted by Section 36; and

 

b)      that, taking into account all the circumstances of the case it was reasonable to terminate the service of the employee.”

 

[16]  Section 42(2) however must be read together with Section 42(1).  Section 42 (1) provides that;

“In the presentation of any complaint under this part the employee shall be required to prove that at the time his service were terminated that he was an employee to whom Section 35 applied.”

 

Section 35deals with the categories of employees whose services should not be unfairly terminated.  One of these employees is an employee who has finished his probation period and has been confirmed as a permanent employee. In the present case there was no dispute that the Applicant is an employee to whom Section 35 applied.  He was employed on a permanent basis by the Respondent.  The second requirement of Section 42(1) is that the Applicant must prove that his services were terminated by the employer.

 

[17]   The Applicant’s case was that he was unfairly terminated by the Respondent as the result of an unfair restructuring process.  The evidence in court however revealed that the Applicant was never retrenched by the Respondent.  The evidence showed that the Applicant and the other managers opted to take an exit package.

 

[18]   The evidence having revealed that the Applicant was never retrenched but took an enhanced exit package, there is therefore no case for the Respondent to answer.  The Applicant also said that he signed the Memorandum of Agreement on the enhanced exit package on 02^nd September 2003 under duress.  He attributed the duress to the fact that they were given very little time to consider the package.  He said they were given only two days to consider the package.  We do not agree that the time was short.  This was a process.  The employer was entitled to place time limits within which the affected parties could indicate whether they were accepting the package or not, so that the employer could consider the next step.  Consultations must not be open ended.  In light of the fact that this was an on going process, we do not think that the time frame was unreasonable.  There was no evidence in court that the Respondent exerted any undue pressure on the Applicant to accept the exit package.

 

[19]   The Applicant during the submissions sought to also rely on the provisions of the Memorandum of Agreement for his argument that he was terminated by the Respondent.  Clause 1 of that document states that;

 

          “1.  Whereas Andreas N. Nkabinde is an employee of Swaziland Electricity Board (SEB) and whereas SEB wishes to terminate the pensionable contract of employment with the said employee.”

 

          This argument does not take the Applicant’s case any further.  Both in court and at CMAC it was not his case that he was dismissed by virtue of the Memorandum of Agreement. Clause 2 of that document states clearly that the parties were separating because they had agreed on the exit package.  Clause 2 states that;

 

          “2. Whereas the parties are desirous to agree on an exit package it is hereby agreed as follows:”

 

          The Memorandum of Agreement further states in clause 3 that;

“It is further agreed that with regard to Pension the employee will be treated as though he is retiring at age 60 years and that his retirement will not be reduced.”

Retirement is one of the fair reasons upon which an employee’s services could be terminated in terms of Section 36 (k) of the Employment Act.  The question of unfairness or unlawfulness of the termination does not arise therefore if the termination of the employment contract is as the result of the employee retiring from the service.

 

[20]   Taking into account all the evidence before court and also taking into account all the circumstances of the case, we come to the conclusion that the Applicant has failed to establish a prima facie case which would require the Respondent to open its case.  In the result we make the following order;

 

20.1            The application for absolution from the instance is hereby granted.

20.2            The application having been dismissed at this stage we make no order as to costs.

 

The members agree.

         

         

          NKOSINATHI NKONYANE

         JUDGE OF THE INDUSTRIAL COURT