Swazi Observer

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GOVT FILES URGENT APPLICATION AT HIGH COURT

By JOHN SUKATI | 2024-03-29

Government has filed an urgent application at the High Court seeking an order reviewing and setting aside the entire judgment handed down by the Industrial Court in the case of SNAT President, Mbongwa Dlamini.

Also sought is an order staying the operation of the judgment of the Industrial Court pending finalisation of the application.

Again, government is also seeking for an order reviewing and setting aside the judgment of the Industrial Court handed down on March 21, and substituting it with an order dismissing the application that was instituted by Dlamini at the Industrial Court.

As a result of this action, government has effectively withdrawn its appeal at the Industrial Court.
The applicants in the High Court proceedings are chairman of Teaching Service Commission (TSC), the TSC as a statutory commission established in terms of the Teaching Service Commission Act, and the attorney general, first to third applicants, respectively.

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Respondents are Mbongwa Dlamini, Industrial Court Judge Manene Thwala and the two members of the court, first to fourth respondents, respectively.

The review application by the TSC is based on the High Court having jurisdiction to hear and adjudicate over the matter in terms of section 19 (5) of the Industrial Relation Act as amended as read with Rules 6 and 53 of the rules of the High Court.

The relevant provision of the Act reads: ‘A decision or order of the court or arbitrator shall, at the request of any interested party, be subject to review at the High Court on grounds permissible at common law.’

Giving a background, it was submitted that on September 14, the SNAT president launched an urgent application before court seeking relief that the letter of his dismissal dated August 28, together with the letter of August 24, be set aside and that he be reinstated as a teacher and an employee of the TSC.

Also, that the TSC chairman`s decision and that of the TSC to proceed with the hearing against Dlamini in his absence, and to proceed and hand down a verdict in his absence, and also to proceed with the hearing on August 28 without the requisite legal notice to proceed with the aggravation pursuit to the decision of August 24, and advising that they would hand down comprehensive reasons, be reviewed and set down.

Another relief sought by Dlamini was that the chairman and the TSC be ordered and or directed to provide a complete record of the proceedings of the hearing and the judgment, spelling out full reasons for this verdict as provided for in terms of the Constitution and the rules of court to be provided within 14 days.

The TSC argues that at the time when Dlamini launched the above application, his services had been terminated.

“His services were terminated in in terms of a letter dated 29th August 2023. The proceedings before the Industrial Court were intended to review and set aside that dismissal,” argued the TSC Executive Secretary, Nhlanhla Dlamini, deponent of the founding affidavit filed at the High Court.
In response, the TSC, through an answering affidavit and notices raised a number of preliminary points of law in terms of a notice dated December 15.

The first point was that the court did not have jurisdiction to review and set aside a decision of dismissal without the SNAT president having exhausted the statutory remedies contained in Part V111 of the Industrial Relations Act.

The TSC and its chairman’s reason was that the court did not have jurisdiction to set aside the dismissal without having conducted an enquiry into the propriety of the dismissal.

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The second point related to the alleged urgency of the matter, it being contended that with the dismissal having already taken place, there was no urgency and accordingly, there was no reason for the court to allow for the abridgment and dispensation of the requirement of the rules of this court and in particular the timelines provided therein.

“The substance of the point being that financial loss on its own does not anchor urgency in an application before the Industrial Court where the employee’s services have already been terminated,” it was further averred.

In the final analysis and in terms of the judgment handed down on March 21, the Industrial Court is said to have dealt with the events preceding the dismissal.

In that regard, the TSC submitted, the court narrowed its focus to the decision by the Teaching Service Commission to decline an application for postponement.

The court came to a conclusion that the decision to decline a postponement was irrational and declared null and void and issued orders that the TSC chairman’s verbal decision of August 23, 2023, which was subsequently confirmed into writing by the letter dated August 24, 2023, was declared to be null and void and therefore set aside.

Also that in exercise of the powers that are vested in that court by Section 8 (4) of the Industrial Relation Act, 2000, as amended, the TSC was directed to forthwith reconvene and proceed with the SNAT president’s disciplinary hearing.

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