Zanele Mbokazi preaching during the Woman to Woman Conference.
MBABANE – Mike Shongwe wants to take the American Embassy to court alleging that his employment with the embassy was unfairly terminated.
However, the former driver’s court application is bound to flounder because of a standing treaty, the UN Convention on Jurisdictional Immunities of States and their Properties, which dictates that embassies cannot be taken to court. They are immune to legal prosecution.
Again, the American embassy has explained to the Swazi government that it cannot be summoned to the Conciliation, Mediation and Arbitration Commission (CMAC) for conciliation with Shongwe because it does not enter into voluntary conciliation proceedings antecedent to litigation.
The embassy explained this after Shongwe approached the Ministry of Foreign Affairs and International Cooperation seeking assistance.
Shongwe was fired on November 15, 2010 after the embassy accused him of discrepancies with fuel usage.
He had worked for the embassy as a driver from February 3, 2010 until the date he was relieved of duty.
"All calculations indicate that when using the same gas station, there were clear signs that fuel beyond the vehicle’s capacity was being charged to the United States government card. Fuelling and cost information was also cross-referenced with other motor pool vehicles and no such anomalies were noted for any other vehicles or credit card," read part of the letter which terminated Shongwe’s employment.
The letter was signed by Susan Cheatham, the Embassy’s Management Officer.
It was also stated that Shongwe could appeal his expulsion within 10 days of the termination of his employment.
Prior to the expulsion, Shongwe was given five-day administrative leave with pay. This leave started on November 8, 2010.
On November 18, 2010, Shongwe filed an appeal against his dismissal where he argued that it was grossly unfair because there were no formal charges preferred against him.
"I was merely called in for questioning and subsequently placed on suspension only to be dismissed a few days later. Again, I was not given an opportunity to cross-examine any of the witnesses who gave evidence against me in my absence," Shongwe argued.
He continued; "My dismissal is also unlawful in that no formal disciplinary hearing was held in terms whereof I would state my side of the story and further challenge any evidence levelled against me,"
Twelve days after this appeal, the embassy informed Shongwe that the termination of his employment had been upheld.
Cheatham wrote: "The Appeals Board has upheld the termination of your employment as driver with the US Embassy. The findings of this investigation were shared with you over the course of several meetings. You were orally cautioned in early October about the discrepancies in the gasoline card records for your vehicle and subsequent misuse of the card resulted in the termination of your employment."
Unsatisfied by the embassy’s final decision to fire him, Shongwe took the matter to CMAC where the commission stated that it would not be able to handle the matter pending correspondence with government on issues of embassies.
This publication gathered that Shongwe instructed his attorneys from Mofokeng Attorneys to write to government to find clarity about immunity of the American Embassy.
"We have been advised that CMAC has no jurisdiction to conciliate in protection afforded to the embassy. We are further advised that the Ministry of Foreign Affairs and International Co-operation does not have jurisdiction in respect of the matter between Mike Shongwe and the Embassy of the United States. We therefore request that the ministry intervene in the matter and accordingly assist by intervening and inviting both parties and conciliate in the matter," wrote Mofokeng attorneys on June 13, 2011.
In a responding letter written on September 29, 2011, M. Masuku, who was acting Principal Secretary in the Ministry of Foreign Affairs, told Mofokeng Attorneys that, "The decision to institute court proceedings is your client’s constitutional right and is not subject to approval by the Ministry of Foreign Affairs and International Cooperation."
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