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OPINION:Industrial Court Judge Lungile Msimango should have awarded costs against DHL Express for suspending an employee without pay and then defends injustice.

Thursday, 18th April, 2024

Suspended DHL Express Eswatini employee Khanyisile Oosthuizen who recently won a case at the Industrial Court, reminded me of my court case with the now defunct Orient Sun Trading(Pty)Ltd.

I was only twenty(20) years in 2003 but through the late Labour Consultant Moses Dlamini and lawyer Mandla Mkhwanazi, I successfully took the textile company to court and won twelve thousand Rands(R12,000.00) for unfair dismissal, at the time R12,000.00 was a lot of money for a twenty-year old.

Our dispute with the company started with the Department of Labour and matter proceeded to the Conciliation, Mediation and Arbitration Commission(CMAC) where the CMAC Arbitrator Bathobile Gule awarded me the said amount after concluding that the dismissal by Orient Sun was both procedurally and substantively unfair.

The company had unlawfully laid-off employees without notice and upon return, my Supervisor Mr Wang, a Chinese ordered me to fetch water with a ten(10) litre bucket and I came back with an approximately five(5)litre the bucket was not filled to its capacity.

When asked,I told the Chinese that I had no strength to carry the 10L bucket as I was hungry after the unlawfully lay-off and that was the beginning of trouble, other employees were afraid to fight for their rights in fear of losing the job.

In fact we had planned a go-slow with other employees but I ended-up doing this alone, indeed I started protesting and standing alone for my rights at a very young age.

Interestingly, the Chinese summarily dismissed me, he shouted on top of his voice “go home” and I went straight to the Department of Labour to report a labour dispute and/or unfair dismissal.

The matter ended with the Industrial Court after we registered the Arbitration Award to be made an order of the court, this was an interesting journey for me particularly because the employees we had planned the go-slow with thought I won’t make it against the Chinese who  were reffered to as “Tinini teNkhosi”.

The justice system at the time was more vibrant, with the likes of Chief Justice(CJ) Stantly Sapire as he then was, now the Judiciary is headed by a corrupt Indvuna yeMcuba Bheki Maphalala and that’s why lawyers defend injustice by employers like in the case of DHL.

Labour laws are not complicated and as young as twenty(20) years,I knew that dismissal without a disciplinary hearing was unfair, you don’t need to be a lawyer to know that,these are basics.

But,the employer delayed the matter to the Industrial Court just to frustrate me,what DHL Express is doing to the employee is the arrogant tendency of some companies.

In fact it’s the culture of capitalists not to pay employees but use their financial muscle or the money generated by same employees to fight the workers.

But in the case of DHL Express Eswatini against Khanyisile Oosthuizen,the company suspended the employee without pay and Derrick Jele, a lawyer from Robison Bertram tried to use a Supreme Court judgment between Phesheya Nkambule and Nedbank as a case law, the questionable judgement justified suspension without pay.

Well,that’s where we should applaud Judge Lungile Msimango because a case law is not binding to a Judge but, according to my understanding, the lawyer brought it to the attention of the Honorable Judge as part of his research to motivate, strengthen the defense and help the Judge to make an informed judgement or decision whether the suspension without pay was lawful or not.

After reading Judge Msimango’s judgement, I then researched about the Phesheya Nkambule vs Nedbank Eswatini Supreme Court case and I’m afraid to say, it’s a piece of ‘rubbish’.

After-all, Nkambule was fighting a financial institution with money and there are possibilities that the Supreme Court Judges were ‘bribed’ to write that rubbish, some corrupt Judges cash money from litigating companies through law-firms and then produce highly questionable judgements.

The judiciary is not immune to criticism, we will applaud Judges and criticize where we feel they erred.

Judge Msimango did well to use her discretion and ignore that Supreme Court judgment.

Employers and/or companies have adopted a tendency to intentionally violate labour laws just to frustrate employees because they know, once they dismiss them, these employees will struggle to afford lawyers and fight for their rights.

In my opinion, Judge Msimango should have awarded costs to Khanyisile Oosthuizen against DHL Express for trying to defend injustice because clearly such conduct, I would suggest, amounts to the abuse of court process.

But then,we applaud the Honorable Judge for this judgement, employers must learn a lesson and uphold labour laws.

In conclusion, we expect reputable law-firms like Robison Bertram to advice their clients accordingly, losing such a case suggests that there was some stupidity, either on the lawyer or the client’s part. 

I don’t want to believe that an experienced lawyer like Derrick Jele was motivated by money to defend this nonsense and try to justify why an employee was suspended without pay, this was just intended to frustrate the employee and fortunately, Judge Msimango acted independently in the interest of the law.

The purpose of a suspension is to,among others, temporarily remove the employee from the place of employment to allow the employer to investigate allegations of wrongdoing.

Subsequently and timely, the employer is expected to institute or launch disciplinary proceedings against the employee based on evidence. 

What will motivate or force the employer to speed-up or conclude these disciplinary processes if the employee has been suspended without pay?

This means companies can just suspend workers, close the chapter and forget about them because they have nothing to lose.

One wonders what was ringing on lawyer Derrick Jele’s head when he submitted that questionable Supreme Court judgement as case law,to Industrial Court Judge Msimango.

OPINION:Industrial Court Judge Lungile Msimango should have awarded costs against DHL Express for suspending an employee without pay and then defends injustice.
Madlenya House that houses Industrial Court.