By Bahle Gama
The Industrial Court has declared that Eswatini Post and Telecommunications (EPTC) Corporate Affairs Manager Nqobile Magagula’s disciplinary hearing violated her terms and conditions of employment.
Magagula moved an urgent application at the court for a declaration that the disciplinary hearing instituted by EPTC against her violated her terms and conditions of employment and the attorney Ndumiso Mamba’s ruling dismissing a recusal application to be reviewed and set aside.
Mamba is a practicing attorney appointed by EPTC to chair the disciplinary inquiry instituted to determine the veracity of the charges preferred against Magagula.
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She was suspended in November 2023 pending investigations of an anomaly that occurred within her area of responsibility in connection with EPTC’s social media platform.
She was on April 2, 2024, charged by her employer with gross misconduct, dishonesty, and misappropriation.
She was further advised that she had a right to be represented by a colleague or trade union, or a legal representative at her cost.
She was further informed that EPTC had appointed an independent person to preside over the disciplinary proceedings.
On April 9, 2024, the disciplinary hearing commenced, and the colleague sent by Dlamini applied for a postponement, which was granted for April 23, 2024.
Upon return on the agreed date, Magagula’s attorney raised two preliminary points, one being that the composition of the disciplinary panel was in contravention of EPTC’s disciplinary code and grievance procedure. The attorney said the tribunal should have been constituted by senior managers.
It was further argued that the notice to attend a disciplinary hearing was issued by a person who was not the chairperson of the inquiry as per the code, and the former issued it in their capacity as company secretary instead of his capacity as Head of Corporate Affairs.
In its judgement issued on Wednesday, July 31, 2024, the Supreme Court said it holds that exceptional circumstances have been shown by Magagula for it to intervene in the ongoing disciplinary hearing.
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It found that Mamba’s decision to refuse the recusal application was irrational and that EPTC should have engaged Magagula before appointing the disciplinary panel.
The court further stated that it was not for it at the stage to determine whether the reasons advanced by EPTC in its papers for deviating from its code institute exceptional circumstances or will result in a fair hearing.
Or that Magagula has failed to show prejudice to determine those issues at this stage would be jumping the gun and would encourage further violations of the procedural rights of EPTC’s employees.
“What should happen is that the Mamba’s ruling should be reviewed and set aside and EPTC be directed to engage Magagula on the deviation,” said the court.
