By Sifiso Nhlabatsi | 2024-11-30

The Royal Eswatini Police Service Staff Association (REPOSA) has emerged victorious in their battle against government.

This was after the Supreme Court yesterday ruled that government must pay security forces’ junior officers their benefits as per Circular No.2 of 2014.

This issue, which has been a subject of debate and was being discussed in all the three arms of government has seen some officers being hauled before disciplinary hearings for demanding that same be implemented.

The officers challenged the disciplinary proceedings and lost their case at the High Court and appealed at the Supreme Court, which issued the judgement yesterday.

Chief Justice (CJ) Bheki Maphalala, when handing down the judgement, stated that it was a judgement that will set precedence for similar cases in the future and it was also in the interest of national security.

In his comments the CJ stated that the Circular in question was issued by government through the hand of the ministry of public service and it sought to improve the lives and welfare of members of the Royal Eswatini Police Service (REPS) by increasing their salaries.

He said the root to the dispute was born from the implementation of this Circular. The chief justice noted that the core issue of the dispute arises from the extract of the Establishment Circular Number 2 of 2014 which reads:

“Phase Restructuring of the Royal Swaziland Police Service and His Majesty's Correctional Services.

Government has approved the restructuring of the afore-said institutions for implementation in two phases. The first phase shall implement the strategic and part of tactical levels of the two Institutions and is being promulgated by this circular as espoused below.

The second phase shall be implemented subsequent to the implementation of the first phase and shall address the tactical and functional/operational/levels with the two institution.”

The CJ went on to state that in essence, phase one is for the senior officers, which was immediately implemented and phase two was for the junior officers, which was never implemented. He said several reasons have been put forward for non-implementation of phase 2, including that government was going to implement it; that government had already implemented it through another salary adjustment relating to all public servants and also that the officers should make submissions to another salary restructuring exercise that government was setting up.

The CJ stated that in short government reneged from its legal obligations as contained in the Circular after awarding senior officers lofty salaries. He said the effect of this was to divide the forces and create ill-feelings between the senior and the junior officers.

“This action was itself a threat to national security. The senior officers were set against the junior officers. Whilst the junior officers were vulnerable the senior officers who had the Commissioner of Police in their group were insulated, as the Commissioner of Police had disciplinary powers entrusted to him by the Constitution and the PSA,” the CJ stated.

He went on to state that when the junior officers wanted the share of their money as promised in the Circular, the commissioner reacted by use of his disciplinary powers challenging the manner of presenting their grievances through a petition. 

He said the commissioner of police further decreed against the junior officers from holding meetings to discuss issues pertaining to the Circular.

Government must apply
spirit of Nkwe – junior officers

Following their victory at the Supreme Court to have their benefits paid to them within a reasonable time frame, junior officers have disclosed that they want government to use the spirit of NKWE when it comes to implementing the payments.

Sergeant Dumsile Khumalo, the Secretary General of the Royal Eswatini Police Staff Association (REPOSA) expressed her joy on the hard fought victory. She stated that it has not been an easy journey but at the end, justice prevailed.

Khumalo went on to stated that they are going to meet and engage specialists who are going to calculate exactly how much they are owed.

Worth noting is that according to the circular all officers who have left the service after the effective date of the circular prior receiving the prescribed salary adjustment may, on application, be paid up to the last day of service.

Govt not established to kill people who established it

One of the comments made by the Chief Justice in the judgment was that a government is established by the people, but not to kill the very people who established it. He went on to explain that the purpose of government is for a harmonious co-existence of the people.

“It is difficult for the court to understand where it disturbs the peace, if junior officers peacefully ask for the money promised to them by government in 2014 through the Circular,” the Chief Justice stated.

The Chief Justice added that it cannot be disputed that the Commissioner of Police has wide statutory powers relating to the maintenance of peace, security and order as well as disciplinary powers over his officers for good reasons.

He said the question that arises and needed to be decided by the Court was whether the Commissioner had exercised those powers correctly that is, lawfully and within the spirit for which the powers were given.

“Public officials are required to exercise their powers rationally and only exercise powers that have been lawfully confirmed on them,” he stated.

The Chief Justice stated that a person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of peaceful assembly and association, that is to say, the right to assemble peacefully and associate freely with other persons for the promotion or protection of the interests of that person.

He said as the Court they must analyse the provision of the law or the thing done to see if it was required, to see if it was reasonable and rational and to see if it can be justifiable in a democratic society.

Democratic
“A society is not democratic by word of mouth but by discernible actions for all to see. The word reasonable only and only refers to a reasonable man (person) and a reasonable person only does reasonable and rational acts,” the chief justice stated.

He said they have also seen that countries are bound by the international treaties they have voluntarily signed and by so doing, surrendered the sovereignty they had. He said they have cited the relevant ILO statutes stating that government and its officials must not interfere in the affairs of legal or lawful workers' associations except for the protection of public health and national security.

“Again we note that a government is established by the people but not to kill the very people who established it. Its purpose is for harmonious co-existence of the people. It is difficult for the Court to understand where it disturbs the peace, if junior officers peacefully ask for the money promised them by government in 2014 through the Circular,” he stated.

He went on to state that it is further difficult to fathom how  peace disturbed if junior officers meet during their off duty time to peacefully discuss welfare issues emanating from the Circular, lawfully issued by Government for the benefit of these officers.

“It is also difficult to understand what is wrong with delivering a petition with a list of grievances to their Minister especially where the powers that be have failed to establish a working commission as required by law and also where the current government negotiation structures have no seat for the junior officers,” the chief justice stated.

The court stated that in the present case, there was no iota of violence or pending violence or likelihood of destruction of property or riotous assembly but instead the junior officers were welcomed by the under-secretary at cabinet offices. He said again, the holding of a meeting to discuss terms of employment cannot be a danger to national security.

The chief justice stated that the Commissioner had not proffered any reasons for his actions except a display that he had powers to do what he did. He stated that without justification his actions fall short of what is expected in a democratic society.

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