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SNAT SCHOOLS CASE OVERTAKEN BY EVENTS - GOVT

08/07/2020 02:09:00 BY MBONGISENI NDZIMANDZE

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MBABANE – “You cannot rest on your laurels and approach the court when the horse has already bolted.”
This submission was made by Assistant Attorney General Mbuso Simelane when pleading with the court to dismiss the urgent application filed by the Swaziland National Association of Teachers (SNAT).

SNAT is challenging the opening of schools in the country amid the surge in COVID-19 cases. Respondents in the matter are the minister of Education and Training, prime minister and the attorney general.

Simelane told the court that by the time SNAT filed the urgent application on Monday afternoon, pupils were already home from school.
“The application by SNAT has been overtaken; as we speak now My Lord, children and teachers are already at school,” argued Simelane.

Resolution

During the arguments of the matter yesterday, government raised four points of law, which included lack of urgency, resolution, locus standi and academic prayer.

Simelane told Industrial Court Judge Dumisani Mazibuko that the case of the applicant (SNAT) should not be enrolled as an urgent application.
According to the government’s lawyer, the association, in its papers, did not plead why the matter should overtake other matters that were on the roll relating to labour disputes dating back to 10 years.

“The applicant has deviously not mentioned as to when it became aware that the schools would be opened in order to ambush the respondents by the urgent application, which was brought on strict time- lines,” contended Simelane.

He told the court that this was in direct conflict with Rule 15(4) of the Industrial Court rules of 2007. The assistant attorney general further informed the court that government was given only two hours to argue the application as the papers were served at the office of the attorney general ‘after hours’, at 4:45pm on July 6, 2020 yet the matter had been set down for hearing of July 7, 2020 at 10am.

“SNAT was aware as of June 5, 2020 about the initial proposal to open Form V classes on July 1, 2020, which opening was later postponed to July 6, 2020 on June 11, 2020.

“There is no explanation in the papers why the application could not be moved soon thereafter,” averred the assistant attorney general.
He also told the court that SNAT fully participated in ensuring that schools opened on July 6, 2020, thus this was allegedly a knee-jerk reaction without any attempt to meet the requirements of Rule 15(2) of the Industrial Court.

Rule 15(1) reads as follows: “A party that applies for urgent relief shall file an application that so far as possible complies with the requirement of Rule 14. The affidavit in support of the application shall set forth explicitly; the circumstances and reasons which render the matter urgent and the reason why the applicant cannot be afforded substantial interest in due course.”

Urgent

Meanwhile, SNAT lawyer Lucky Howe contended that the application was urgent in that the teachers had been directed by government to proceed to open high schools in Eswatini.

“The matter is urgent and I am of the considered view that it is because of the danger to the applicant and the students which is imminent. From the information and daily report by the prime minister, the rate of infection is climbing at an alarming rate thus exposing the teachers and the students,” argued the senior lawyer.

Howe also highlighted that some of SNAT members had underlying conditions and could not return to schools as they were and without safety measures in place.
SNAT is among other prayers seeking an order interdicting the minister of Education and Training and the prime minister from directing that all high schools teaching Form V in the Kingdom of Eswatini should be required to open.

The association is further praying for an order directing the minister of Education and Training and the prime minister to provide all teachers with all the personal protective equipment (PPE) prescribed by the World Health Organisation (WHO) to avoid the contracting and transmission of COVID-19.
The teachers averred that this would enable them to perform their obligations without limiting the generality hereof to provide adequate ablution facilities, water, hand sanitisers, face masks, disposable gloves, cleaning and sanitising material for all classrooms as well as appropriate safety.

The applicant (SNAT) also wants the court to direct government to comply with the provisions of Sections 9 and 18 of the Occupational Safety and Health Act, together with the directive issued by the prime minister to the effect that all persons including teachers, staff and learners should wear face masks in public spaces such as schools.

SNAT is pleading with the court to direct government to provide its members with a safe and healthy workplace, with appropriate safety conditions as per the dictates of the Occupational Safety and Health Act, by ensuring that all work places at every school were sanitised.

The association also wants the State to be interdicted from subjecting its members to any changes of the terms and conditions of employment as per the directive of the principal secretary in the Ministry of Education and Training.

“The respondents should be interdicted from declaring that the non-attendance by members of the applicant to their respective workplace is a violation of the terms and conditions of employment,” reads one of the prayers.

Compliance

It further prayed that the court should declare that, until there has been compliance with the Occupational Safety and Health Act, all the present schools in the Kingdom of Eswatini were not safe places to work due to unsafe conditions of each workplace and the members being at serious risk. In the event government fails to comply, SNAT wants the court to order it to suspend the opening of all schools until it has complied.

Alternatively, the association is praying for an order that, pending compliance, government should be ordered to provide training to its members on long distance teaching, via available technology, for the purpose of teaching the learners remotely and to provide the learners with adequate equipment and devices to learn remotely.

The matter is still pending in court. Simelane was appearing along Mbuso Dlamini and Siboniso Hlawe, both from the chamber of the attorney general.