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4HIM RUNS TO COURT OVER TERMINATION OF UNESWA CONTRACT

24/05/2022 15:12:00 Mbongiseni Ndzimandze

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MBABANE - 4HIM Security Services has filed an urgent application to interdict UNESWA from terminating its contract.

The University of Eswatini (UNESWA), according to a letter dated May 6, 2022, intends to terminate the contract on May 31, 2022. 4HIM Security Services was reportedly paid E14 682 468.60 per annum, which means the institution was paying the security company E1 223 593 05 per month. This information is contained in the agreement, which now forms part of the court proceedings. On March 17, 2022, the Registrar of UNESWA, Dr Salebona Simelane, wrote to the security firm informing it that the management of the university had resolved to place it on record its lack of satisfaction with the level of service provided by 4Him Security Services.

Uniform

According to Dr Simelane, the security personnel were not adequately provided with uniform so that they could be recognised and be presentable. In the correspondence, he also highlighted that the security personnel were also not provided with basic tools of the trade (whistles, truncheons etc). 4HIM Security Services wants the High Court to interdict and restrain the respondent (UNESWA) from terminating the applicant’s (4HIM Security Services) contract on May 31, 2022 as contemplated in the respondent’s letter dated May 6, 2022.
The Managing Director (MD) of the security firm, Lucky Ngubane, informed the court that the respondent had notified the applicant that it would terminate the agreement between the parties on the last day of May 2022. He contended that the management of the institution had purportedly sought to terminate the agreement between the parties in an irregular and unlawful manner, to the prejudice of the applicant.

Application

Ngubane argued that the actions of the respondent had prompted his company to file the urgent application, in order to protect and vindicate its rights in terms of the contract. He narrated to the court that on August 29, 2018 at Kwaluseni, the applicant and the respondent entered into a written agreement for the provision of security services. Ngubane alleged that at the conclusion of the contract, the applicant was duly represented by him as its MD and the respondent was represented by Dr Simelane. The MD said, the material terms of the contract were among others that; the applicant would supply the respondent with private security services, which included guarding, patrolling , loss or damage to property, trespassing and arson; provide and at all times all the resources necessary to carry out the private security services, including sufficient and properly maintained roadworthy vehicles, fuel, tools, equipment and tires and would be exclusively responsible for the storage and security.

He said the written agreement between the parties had been religiously extended by the respondent since the expiry of the initial agreement in June 2020. According to Ngubane, on or about the year 2020, the management of the university requested his company to implement austerity measures to cut costs of the security services provided. He said, in particular, the respondent requested that the applicant must downsize security staff by half. Ngubane alleged that his company duly complied with the request and security staff was downsized, resulting in retrenchments of the applicant’s employees.

Contract

“I must bring it to the court’s attention that the applicant’s employees stationed at the respondent’s institution are employed solely for the contract with the respondent and they are fully dependent on the availability of work from the respondent,” submitted Ngubane. He recounted that on August 20, 2021, the respondent communicated to the applicant that it was extending the security services contract by a further six months. On February 18, 2022, Ngubane alleged that his company wrote a letter to the respondent requesting clarity on whether the contract would be extended further or not beyond March 31, 2022. He said the purpose of the letter was to enable the applicant to adequately notify its employees on the potential redundancy, in the event the contract was not renewed. He informed the court that even though the applicant sought clarity from the respondent timeously, the applicant did not receive a response until March 17, 2022, which ultimately resulted in his company being afforded less than a month to initiate a process of terminating its employees’ services.

“This on its own was greatly prejudicial to the applicant’s operations. Fortunately, the agreement was eventually extended by a year, effective from April 1, 2022 to March 31, 2023. In the respondent’s letter dated March 17, 2022, the respondent expressed its lack of satisfaction with the level of services provided by the applicant,” contended Ngubane. The MD submitted that in the very same letter, the respondent directed that there should be a meeting between him and Dr Simelane to ventilate the respondent’s concerns in person and further obtain a written commitment from the applicant on the level of service. “This came as a surprise to the applicant, as we had not been aware of the issue raised by the respondent, in fact, the applicant was also looking forward to the meetings as it had concerns to be expressed to the respondent on the very same agreement,” submitted the managing director of the security firm.

Challenges

He brought it to the attention of the court that the very same challenges that the institution complained about were allegedly caused by it. Ngubane further claimed that the respondent had allegedly been failing to pay for the services timeously as provided for in the agreement. He alleged that in certain months, the applicant’s employees would receive their salaries very late.
These challenges, according to the applicant, would result in strike actions and stay-aways by the employees, and inversely affected the level of service provided to the respondent through its own actions of non-payment and late payment for services provided. “On or about May 13, 2022, the applicant received a letter from the respondent dated May 6, 2022. In the letter, the respondent was notifying the applicant that it intended or the agreement between the parties would be terminated on the last day of the month of May 2022,” said Ngubane.

The MD submitted that this came as a shock to his company as the letter was allegedly not in accordance with the terms of the security services agreement between the parties. Ngubane argued that the notice of termination of security services was inconsistent with Clause 21 of the written agreement. The urgent applicant, which is being opposed by UNESWA, will be heard today. 4HIM Security Services is represented by Siphesihle Luyanda Kunene of KN Simelane Attorneys in Association with Henwood and Company, while appearing for UNESWA are lawyers from Magagula and Hlophe Attorneys.