Court orders ENPF employee’s DC to start afresh

MBABANE – The Industrial Court has ordered that the disciplinary hearing of Eswatini National Provident Fund (ENPF) Compliance Officer Sibusiso Gamedze, should start afresh.

Acting Judge Banele Ngcamphalala also ordered that the Chairperson of the hearing, Micah Nkabinde, be removed from hearing the proceedings. The judgment was issued on Thursday. Gamedze is alleged to have breached his duty of good faith to his employer in that he reportedly failed to disclose and/or concealed the existence of a romantic relationship with Zabo Tengetile Makama - an Accountant at Afritrade Services (PTY) Limited in Matsapha. He is also facing a charge of gross dishonesty in that together with Makama, they allegedly defrauded the company (Afritrade Services (PTY) Limited) a sum of E125 556.97.

Gamedze’s job profile entails enforcing compliance among employers who are under his portfolio with the provisions of the ENPF Order.

The Industrial Court previously dismissed Gamedze’s application to set aside Nkabinde’s refusal recuse himself. He wanted the court to order Nkabinde to remove himself from the proceedings. He told the court that Nkabinde was the third senior employee in his department, and he apprehended that he might be biased against him.

“Why should I be put in this extremely uncomfortable space in the circumstances, where I would have to face my boss?” Gamedze argued at the time. His application was dismissed by Judge Manene Thwala.

APPROACHED

Gamedze approached the court again, seeking an order that Nkabinde be removed from the proceedings and the hearing to start afresh.

The compliance officer informed the court that his hearing was conducted while he was admitted to hospital.

Gamedze submitted that Nkabinde allowed the proceedings to continue in his absence as well as that of his substantive representatives from the Swaziland Union of Financial Institutions and Allied Workers (SUFIAW).

He stated that notwithstanding proof in the form of a medical certificate, the disciplinary hearing continued.

According to Gamedze, despite having not pleaded to the charges levelled against him, ENPF, through the chairperson’s endorsement, had already led and presented the evidence of two witnesses whose testimony had not been tested through cross-examination by himself or his representatives.

COMPLIANCE

The compliance officer submitted that despite the obvious prejudice to which he was being subjected, Nkabinde intended to finalise the hearing.

ENPF, which was represented by Zweli Jele of Robinson Bertram, argued that the disciplinary hearing was scheduled for July12, 2022 after two postponements at Gamedze’s instance.

The general manager, according to ENPF, received a call from Swaziland Union of Financial Institutions and Allied Workers (SUFIAW) Secretary General (SG) Jabu Shiba, seeking a postponement of the proceedings. Shiba is said to have advised that it was the union’s duty to avail itself and apply for a postponement before the chairperson.

ENPF submitted that two of Gamedze’s representatives attended the hearing on July 12, 2022 and reported that he was not well and further requested that the matter be stood down for the 30 minutes as he was seeing the doctor. When the hearing resumed, Gamedze was said to have not been in attendance and his representatives produced a medical certificate on his behalf, indicating that he was not fit for work.

INTEGRITY

ENPF argued that the medical certificate did not specify why he was said to be unfit for duty and as a result, it doubted the integrity of the medical certificate. “It was the first respondent’s (ENPF) averment that it could not have been a coincidence that after the union had sought a postponement of the matter, and having been advised that same would be opposed, the applicant (Gamedze) suddenly took ill and was reported to be indisposed.

“This raised suspicion with the first respondent that the certificate had been procured so as to engineer the postponement of the matter, hence the first respondent’s argument that the authenticity of the medical certificate was questionable,” it was argued on behalf of ENPF.

Judge Ngcamphalala said the court had said many times before that it was weary to intervene in internal disciplinary proceedings until they had run their course, except where exceptional and compelling circumstances exist.

The judge stated that the court would not come to the assistance of Gamedze unless it was satisfied that the chairperson did not exercise his discretion judiciously. She said where the chairperson failed to apply his mind properly, he commits a gross irregularity ‘because he has then failed to perform the function which was required of him’. Judge Ngcamphalala also said while there may be a variation in the evidence tendered by the parties regarding what transpired before, after and during the hearing, it was, however, confirmed by both parties that the hearing proceeded in the applicant’s absence. This was notwithstanding him having submitted a medical certificate certifying him unfit.

The court then ordered the removal of the chairperson and that the hearing should start afresh. Gamedze was represented by Gcina Mhlanga of MotsaMavuso Attorneys.