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GOVT’S URGENT APPLICATION TO STOP MBONGWA FROM RESUMING DUTIES

26/03/2024 09:15:00 Mbongiseni Ndzimandze

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MBABANE - Government has moved an urgent court application to stop SNAT President Mbongwa Dlamini from resuming his duties as a teacher at Moyeni High School.

The application by the Teaching Service Commission (TSC) comes after the Industrial Court set aside a letter of refusal to postpone Mbongwa’s disciplinary hearing, that was set to commence on August 23, 2023, resulting in him being dismissed from work. On the aforementioned date, evidence was led in the absence of Mbongwa and his lawyer, resulting in TSC finding the former guilty and the matter was postponed to August 28, 2023, for him to mitigate a lesser sanction, while the initiator or prosecutor of the commission was to apply for a heavier sanction. The matter was heard on this date but Mbongwa and his attorney did not mitigate the sanction and he was then dismissed through a letter dated August 29, 2023. Mbongwa then went to court to challenge the decision of the commission.

Hearing

In the now impugned judgment, Judge Manene Thwala directed the commission to reconvene and proceed with Mbongwa’s disciplinary hearing. On the strength of the judgment, last Friday, some members of the Swaziland National Association of Teachers (SNAT) accompanied the SNAT president to Moyeni High School, where he was expected to resume his duties. In the urgent application, the TSC entreated the court of equity to issue an order staying the operation of the judgment dated March 21, 2024, pending the finalisation of an appeal it noted on the same day. The TSC implored the court to interdict and restrain Mbongwa from resuming his duties as a teacher at Moyeni High School and/or returning to the said school.

The commission informed the court that, the application was necessitated by the fact that the noting of an appeal in the Industrial Court did not automatically suspend the operation of a judgment. The applicant (commission) contended that, for this reason, it was obliged to institute a substantive application for the suspension of the operation of the judgment. TSC Executive Secretary Nhlanhla Dlamini, informed the court that when Mbongwa filed the application to challenge the decision of the commission, on September 14, 2023, he was no longer a government employee. “Where an employee’s services have been terminated, the Industrial Court does not have jurisdiction to deal with the matter, unless and until there has been adherence to the provisions of Part VIII of the Industrial Relations Act. The Industrial Court does not sit as a court of review in respect of dismissals,” contended the TSC executive secretary.

According to Nhlanhla, the TSC committed an error of law in directing that the disciplinary hearing be reconvened, in circumstances wherein same had been completed and a verdict pronounced. He argued that, the verdict of the disciplinary hearing had legal consequences and the failure of the court to deal with the fact of the dismissal and its legal consequences, constituted an error of law on the part of the court. The TSC executive secretary submitted that the court committed an error of law, when it set aside the decision not to grant the postponement, without having considered the discretionary powers of the chairperson of the disciplinary hearing.

Appeal

“The primary objective of staying the operation of a judgment pending an appeal is to avoid harm to the intended appellant. In the present matter and having been apprised of an intention to return to work and assume his duties as a teacher at Moyeni High School, the attorney general (AG) caused a letter to be sent to Mbongwa attorneys,” submitted Nhlanhla. He informed the court that the letter by the AG was prompted by various statements made by members of SNAT in the local press. The executive secretary pointed out that in the Times of Eswatini, it was quoted as follows in page 2 of the publication: “Meanwhile, excited SNAT members yesterday vowed to take Dlamini to Moyeni High School today.” The TSC executive secretariat said, pursuant to the above statements, on Friday, March 22, 2024, a contingent of SNAT members accompanied Mbongwa to Moyeni High School, purportedly to assist him in the resumption of his duties.

“This was done notwithstanding the fact that the respondent (Mbongwa and SNAT members) were aware that the applicants had appealed against the judgment of the court, had written to his attorneys confirming the applicant’s position i.e. that the dismissal had not been set aside.” He argued that the act of descending upon a school in the manner the SNAT did disrupted educational activities at the school and caused commotion. “The disruption to schooling activities was in part occasioned by the fact that he arrived late i.e. after the normal school activities had commenced,” submitted Nhlanhla. The urgent application, which is pending before Judge Thwala, was yesterday postponed to tomorrow for arguments. Mbongwa and SNAT are vigorously opposing the application.

SNAT, president opposed to Robinson Bertram’s engagement

MBABANE - SNAT and its President, Mbongwa Dlamini, are opposed to the engagement of Robinson Bertram to represent government in the matter.

The Office of the Attorney General (AG) has instructed lawyers from Robinson Bertram to argue the urgent application, where it is seeking an order to stop the president of the Swaziland National Association of Teachers (SNAT) from resuming his duties as a teacher at Moyeni High School. Government is also praying for an order staying the judgment which was issued in favour of Mbongwa last Thursday. Through their attorney, Lucky Howe, the respondents raised points of law, where they argued that the lawyer from the law firm did not have standing in law in the matter on behalf of the Teaching Service Commission (TSC) and government. “Robinson Bertram is a private law firm and does not meet requirement of Section 77(6) of the Constitution. Robinson Bertram is not a subordinate officer of the attorney general thus he cannot perform the function. He cannot, therefore, appear on behalf of the applicants (TSC and the attorney),” argued the respondent (Mbongwa and SNAT). According to the respondents, the lawyers from the law firm had filed a notice of substitution replacing the AG as the attorney for the applicants.

Violation

According to the respondents, this was allegedly a violation of the Constitution as only the AG could appear on behalf of government. It was further their contention that the AG was the principal government legal representative in terms of Section 77(5) (C) and he could only delegate the function to a subordinate. They argued that the TSC was a government department and had instituted the proceedings against Mbongwa, thus the law firm was disqualified in law from representing the AG. Mbongwa, who is the deponent, argued that the appointment of the private law firm was allegedly in violation of the Constitution. “I challenge, as the respondent, the right for the private law firm to appear in this matter as it is in violation of the Constitution and as a citizen, in terms of the Constitution, I am obliged to defend the Constitution,” he argued.

He averred that this was a matter, which must be referred to the High Court in terms of Section 55 of the Constitution for the determination as to whether the law firm could appear on behalf of the AG. He contended that the Industrial Court would not be in a position to determine that, as this was a constitutional matter and alleged violation of same. On the issue of urgency, Mbongwa submitted that the matter was not urgent, and if it was, it was self- made. He pointed out that the applicants alleged that his return would cause disruption in the school, but did not plead what type of disruption were they referring to. The SNAT president said when he went to the school last Friday there was no disruption thereat. “There was no disruption at all, the police officers, namely Muzikayise Dlamini and another, were there and they thanked the respondent (Mbongwa) for his return without an incident,” contended Mbongwa.