EEA’S ZUKE MATTER FAR FROM OVER

MBABANE – Returning to his desk job is proving to be an uphill battle for Eswatini Environment Authority (EEA) Executive Director Stephen Zuke.

This is because the Minister of Tourism and Environmental Affairs, Moses Vilakati, has applied to the Supreme Court for the reinstatement of the matter in order to prosecute the appeal.
This is despite the fact that the Supreme Court had previously struck off (took off the record) the appeal that was filed by the EEA after a full bench of the High Court ruled in Zuke favour to return to work. However, the minister, in his supporting affidavit filed at the Supreme Court, stated that the appeal sought to be reinstated had good prospects of success.

In his affidavit, the minister stated that the second ground of appeal was based on clear statutory provisions in Section 14 of the Public Enterprises (Control and Monitoring) Act 8/1989 that it prevailed over any statute in so far as the regulations of the public enterprises was concerned.

Appointed

He submitted that as a result, Zuke, who is the first respondent in the matter was appointed by the minister in consultation with Cabinet’s Standing Committee on Public Enterprises (SCOPE) in terms of the Act.
Vilakati submitted that the High Court manifestly erred in law to hold that Zuke was appointed by EEA in terms of the Environment Management Act No.5 of 2002. These are allegations contained in an affidavit whose veracity is still to be tested in court.
Zuke, in the matter, is represented by attorney Derrick Jele of Robinson Bertram Attorneys.

Vilakati claimed that even if Zuke were to be appointed under Act 5 of 2002, the minister remained the appointing authority under Section 17 (1) of the same Act. “There was therefore no legal basis for the High Court to hold that EEA has any power to employ the first respondent,” submitted the minister.

Violation

It was reported that the matter started off in the Industrial Court, which referred to the High Court the issue of alleged violation of the right to administrative justice.
Vilakati said precedent on rules of civil procedure was that a party stood or fell on its papers such that the High Court gravely erred in granting Zuke tacit renewal of his contract of employment.

The minister stated that on these grounds, the appeal would most likely succeed if reinstated. Vilakati submitted that the issue on appeal was the power to appoint the executive director or chief executive officer of the EEA 
“In the High Court judgment, such power vests in the second respondent in terms of the Act 5/2002. On the face of it, this ultimately elbows out the powers of Cabinet under Section 8 (1) of the Public Enterprise Act yet even under the Environment Act, the EEA has no such power of appointment,” alleged Vilakati.

Prejudice

The minister said if the judgment was not set aside, the prejudice it brought upon government in the regulation of public enterprises would not only affect his ministry.
“The corporate governance affairs of all public enterprises are administered neither by their various enabling legislations nor the Companies Act No.8 of 2009,” said Vilakati.

He stated that they were administered through the PEU Act. The minister said even though Zuke’s term of employment long expired, on August 21, 2016, he was unlikely to suffer any material prejudice other than the delay which had already occurred. 
The minister said it would be unfair to have Zuke reinstated through an erroneous order or judgment of the court.  He submitted that worse still if Zuke was reinstated in this way, both parties would suffer the negative consequences of the removed power of regulation and control of the Public Enterprise Act in the running of the affairs of EEA thereby affecting its entire mandate. Zuke, through his attorneys, is vigorously opposing the matter and has filed a notice of intention to oppose.
    

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