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INTRODUCTION

In this case, Mr. Dismas NGENDAKUMANA was in a working relationship with SOCABU as a driver.
He will be fired for using the company vehicle for personal purposes, for being guilty of insubordination
and for the fact that he continued to distract other office workers while he was a driver.

Believing that the dismissal was rather abusive, he will seize the Labor Court under RS 5045. Both
parties will appeal against this judgment before the Court of Appeal of Bujumbura and the case will be
registered under RCA 3470.

The Court of Appeal accepts the main appeal and will revise the judgment undertaken by condemning
SOCABU to pay a lump sum of 3,319,908 FBU as damages It is with a view to overturning this judgment
that SOCABU represented by his Lawyer, has appealed in cassation under RSC 91.1°

CASE: RSC 91

IN QUESTION: SOCABU, represented by lawyer Tharcisse NTAKIYICA AGAINST: Dismas

NGENDAKUMANA, represented by Lawyer Déo GENDAKUMANA

Having regard to the declaration of appeal in cassation filed at the Registry of the Supreme Court of
Burundi by Mr. NTAKIYICA, acting for SOCABU, with a view to quashing the RC 3470 judgment
rendered by the Court of Appeal of Bujumbura on April 30, 1998 ;

Having regard to the dispatch of the judgment undertaken as notified to the parties and the operative part
of which reads as follows:

Receives the main appeal and declares it partially founded;

Reforming the judgment appealed from and ruling again,

orders SOCABU to pay Mr. Dismas NGENDAKUMANA a lump sum of 3,319,908 francs in damages;
Said that this amount will be increased by interest of 6% from the first summons until full payment;

Having regard to the defendant's reply which reached the Court on July 27, 1998; Having regard to the
fixing of the case at the public hearing of 01/15/1998, at which only the defendant appeared and requests
the Court to take into account the social of the dispute and to take the case under advisement, that the
Court acceded to his request and took the case under advisement to rule on documents

Whereas the representative of SOCABU presents the following means to have the judgment annulled,
including cassation:

1° Violation of articles 50 al 2 and 61 of the labor code

2° Non-response to conclusions and lack of reasons as to the abusive nature of the dismissal imposed on
Mr. NGENDAKUMANA Dismas;

3° Violation of the adversarial principle and of the rights of defence;

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4° Insufficient reasoning as to the quantum and the formula used with regard to the damages awarded;

Whereas the first ground proposed against the judgment under appeal criticizes the appeal judge for
considering any dismissal without fault as abusive, whereas Article 50 al. 2 of the Labor Code specifies
that any employment contract may be terminated with notice, notice or dismissal indemnities, except in
the event of fault;

Whereas according to the applicant, the combined reading of Articles 50 and 61 shows that the
employment contract can be terminated for valid or real reason, that by ignoring the spirit of these
provisions, the judge violated the law and deserves to be censored;

Whereas counsel for the defendant responds to this plea by asserting that there has been no violation of
Articles 50 paragraph 1 and 61 of the Labor Code, insofar as the judge applied Article 63 of the same
code which is rather directly related to the system of unfair dismissal, which is sanctioned by the payment
of damages, in the absence of reinstatement;

Whereas counsel for the applicant had insisted in his appeal submissions that the dismissal had taken
place following a series of more or less serious shortcomings and faults, and an unsatisfactory way of
serving; that he had provided proof of this by adding the various correspondence and report cards to the
file;

Whereas in addition to these conclusions in response to the notice of appeal subpoena subsequent to the
appeal of the current defendant, SOCABU had lodged an appeal against judgment RS 5045, which was
registered on 28/05/97, whereas that of SOCABU dated 5 September of the same year;

Whereas SOCABU's writ of appeal returned to the grounds for dismissal, specifying that agent
NGENDAKUMANA was accused of having used the service vehicle for personal purposes, that he had
guilty of insubordination and that he continued to distract other office workers, while he was a driver;

Whereas in his reasoning, the appeal judge recognizes and finds that the appellant was guilty of one and
the other breach for which he only received the request explanation, layoff, satisfactory marks in
reporting bulletins;

Whereas he concludes that the employer, which is SOCABU, cannot in any case go back to its various
decisions to wrongfully dismiss the Appellant;

Considering that the appeal judge is criticized for declaring that the dismissal is unfair, without noticing
it through his motivation, whereas article 62 al 2 of the labor code specifies that in the event of a dispute,
the qualification of the unfair dismissal will be left to the discretion of the judge;

Whereas it emerges from the reading of the judgment undertaken that the judge devoted only an expected
threshold to his duty of assessment, by affirming that SOCABU cannot return to its various decisions to
wrongfully dismiss the appellant;

Whereas it also appears that the appeal judge, without noticing it, did not reserve the slightest response to
the conclusions contained in SOCABU's writ of appeal;
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Whereas he was asked by these conclusions to note the seriousness of the faults attributed to the agent
NGENDAKUMANA Dismas, namely:

1-the use of the service vehicle for personal purposes;

2-the fact of distracting office workers when he had to remain at his home position as a driver;

3-the notorious insubordination with regard to the orders received by its leaders;

Whereas the appeal judge was also asked to take into account the persistence of the employee in the same
breaches, to find that cohabitation became impossible and justified dismissal with notice, notice and
dismissal indemnities;

Whereas by refraining from responding to these grounds of appeal, the judge contradicts himself in his
operative part by declaring the appeal admissible and unfounded, whereas he did not discuss the grounds
of appeal, that this breach on the formal level constitutes a total absence of response to conclusions, that
this means is sufficient in itself to dispense the Court of this case from analyzing the other grounds of
appeal;

Whereas the judgment is criticized, through the second ground of appeal, for not having responded to the
appellant's conclusions and for the lack of reasons as to the abusive nature of the dismissal imposed on
NGENDAKUMANA Dismas;

Whereas the defendant responds to the second ground by asserting that the abusive nature of the
dismissal manifests itself when the employer cannot prove the faults attributable to the worker; that he
continues his argument by referring to Article 62 of the Labor Code which grants the judge sovereign
power to assess the abusive nature of the dismissal; that it is not for the judge of cassation to review the
facts;

Whereas the Court of Cassation is of the opinion that it is within the power of the judge to assess in its
sole discretion the abusive nature of the dismissal;

Whereas, however, the law and in particular article 62 al 1 of the labor code, having defined in an
indicative manner unfair dismissals, implicitly restricts this prerogative to assess sovereignly, which he
must seek if the dismissal occurs within the cases listed by this provision and must assess this character
from the elements provided to it by the parties in their conclusions; That these same elements which make
it possible to qualify and show that the facts retained fall into one or the other category of dismissal;

Whereas in the present case, it is indisputable that the judge abused this discretion, insofar as he
arbitrarily decided that the dismissal was unfair without causing any discussion between the parties on the
grounds for dismissal ;

Whereas in responding to the first ground of the appeal, the Court considers that the second ground also
finds an adequate response, that the two grounds support each other jointly and severally in the ruin of the
judgment entered into;
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Whereas the third ground is based on the violation of the adversarial principle and the rights of the
defense, in that the judge made use of the documents which were neither discussed in public hearing nor
communicated to the other party, in this case the petitioner in cassation

Whereas he continues by specifying that he had denounced the letter of the Director of the Pharmacy of
Hope as being a forgery established for the needs of the cause and had invited the Court to carry out
investigations on it; that he had even written to request a reopening of the proceedings so that the truth
could be established and to obtain respect for the rights of the defence;

Considering that counsel for the defendant rejects this plea which he considers inadmissible because it
relates the facts, that he denies the fact that there was a violation of the rights of the defense insofar as
there were contradictory debates during several public hearings and that the conclusions of the parties
were regularly exchanged;

Considering that with regard to his point of view on the letter mentioned by the applicant, he considers
that no investigation was justified as long as the applicant had not declared the false act incriminated;

Whereas on reading the judgment under appeal, the Court notes that the damages awarded to agent
NGENDAKUMANA were calculated taking into account the years spent at SOCABU and not the period
of unemployment;

Whereas, therefore, the judge had made no use of the documents whose authenticity is disputed and on
which the Court refused to organize an adversarial debate;

Whereas the Court would have effectively violated these rights of the defense if it had taken these
documents into account, without the parties having known and discussed them, that this not being the
case, the plea proves to be unfounded;

Whereas the last ground of the appeal for the judgment is criticized for the lack of sufficient reasons as to
the quantum and the formula used with regard to the calculation of the damages awarded;

Considering, in essence, that the appeal judge is criticized for not justifying why he deviated from a case
law widely practiced until then, which consists in granting one month's salary for a seniority of service of
one year, to adopt the one which rewards the applicant with six months' salary for one year of seniority;

Whereas counsel for the defendant responds to the said plea by arguing that the question of damages to be
awarded to the worker is a sovereign assessment of the judge, who takes into account the damage suffered
(art 63 of the Labor Code);

That it is not a question of case law even though it does not bind the judge and changes significantly;
that he concludes that there has been no violation of the law;

Whereas the judgment under appeal bases its reasoning on the fact that life is expensive and that the
Appellant had just spent ten years in the service of SOCABU; that it is for this reason that the Court
retained six months of salary per year of seniority instead of one month per year;
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Considering that the appeal judge concludes his reasoning on the point of knowing why this change of
method of calculation and quantum by affirming that this is the way to make evolve the jurisprudence or
the tradition and that this one goes in the direction of section 63 of the labor code;

Whereas the Court of this Court retains from this motivation that the only elements taken into
consideration by the judge in his approach to change the case law or reverse it are the cost of living which
has become very expensive, and the seniority that the agent has just to move to SOCABU;

Whereas the Court of Appeal should specify the proportions considered, between the cost of living and
the quantum adopted, of six months of salary per year of seniority; that he did not demonstrate that the
cost of living had increased sixfold, to convince anyone who should censure this decision;

Considering that it transpires from a simple reading of the judgment that the reasoning of the appeal
judge does not hold on the verified elements and that moreover, his mission to develop the case law in
which he invests does not take into account no serious criteria; that this motivation could not be more,
insufficient and lacks legal support, that therefore, this means is founded to carry the cassation of the
judgment undertaken;

For these reasons :

The Supreme Court;

Considering the Constitution of the Republic of BURUNDI.

Considering the law n°1/07 of February 25, 2005 governing the Supreme Court;

Having regard to Law No. 1/08 of March 17, 2005 on the code of judicial organization and jurisdiction;

Having regard to Law No. 1/010 of May 13, 2004 on the Code of Civil Procedure; Ruling publicly and
contradictorily after having deliberated in accordance with the law;

Receives the appeal and declares it founded;

Quashes the RCA 4370 judgment of the Court of Appeal of Bujumbura;

Returns the case to this same Court for a new ruling Orders the registration of this device in the register
of this Court in the margin of the quashed judgment; Charges the costs to the defendant; Thus ruled and
pronounced in Bujumbura in public hearing of 15/2/1999

where sat: Timothée BISUMBAGUTIRA, President

headquarters, RWAMO Clémence and Venant KAMANA, Advisers,

assisted by NYANZIRA Simon, public prosecutor. and Ignace HABIYAMBERE, Registrar.

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My opinion on the decision

For me , it would have been necessary to declare the appeal inadmissible and to maintain the judgment of
the Court of Appeal, which was founded for me.

Conclusion

That case is a judgment of cassation. But it should be noted that the judge of cassation made a bad
apprehension of the legal questions which were put to him. Rather, the appeal judge rather had the merit
of initiating the creation of case law which has so far been followed in the matter.

Indeed, the referring judge rebelled under RCA 3843 by adopting the same solution. The case will be
brought in cassation before the Supreme Court all chambers united under RTC 421 rendered on July 27,
2001 and which will reject the appeal.