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DISMISSED COP SAYS LATE PM WAS TOO ILL DURING APPEAL

17/04/2024 10:53:00 Kwanele Dlamini

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MBABANE – A dismissed police officer wants to be reinstated, because he says former Prime Minister (PM) Sibusiso Barnabas Dlamini was too ill when he heard his appeal.

As a result, Mpendulo Dlamini alleged that Barnabas did not apply his mind when hearing the appeal. Police officers appeal decisions of their disciplinary hearings to their minister, who is the PM. The former PM, who died on September 28, 2018, heard Mpendulo’s appeal after he had been dismissed. He said he appealed on August 12, 2014, and it was not heard until four years later. According to Mpendulo, in 2018, he received a call from a certain Mabuza in the office of the National Commissioner (NATCOM) of Police, who instructed him to report to Cabinet Offices. He said on arrival, the former PM was present but due to his ill-health, the appeal did not proceed. He said he was informed that Barnabas needed to be rushed to South Africa for a medical check-up.

He stated that on August 30, 2018, he received a phone call from a certain Malinga, who was the Security Police Officer at Cabinet Offices, who instructed him to report to Cabinet Offices on the following day. Mpendulo stated that he found the former PM, together with Malinga, as well as Ngwane Mabuza and Bonisile Simelane, who had been delegated by the commissioner of police to appear on his behalf during the hearing of the appeal. He mentioned that there was a caucasian man among them, who was unknown to him. “They were all seated around a table. The first respondent (Barnabas) greeted me and his health condition was bad, because he would say two or three words and then take a sip of water due to severe coughs.

Sick

“Thereafter, he said I should state my story and I explained how I was sick at the time I committed the disciplinary offences. I explained that I was to undergo treatment at the psychiatric centre and as a result, I was dismissed for absenteeism. I had a medical report regarding the time I spent at the psychiatric centre,” Mpendulo submitted. He alleged that Barnabas asked about his (Mpendulo) health status and he informed him that he had fully recovered. After further submissions, according to Mpendulo, Barnabas told him that he would deliver a judgment in due course. “I contend that the first respondent was terminally ill when he heard my appeal and he did not apply his mind to the appeal. “He never addressed my case with an open mind and I had a legitimate expectation that he would refer the matter back to the second respondent (commissioner of police) to write the said letter to the psychiatric centre to come to a just decision.

“The first respondent only relied on the dismissal letter by the second respondent. He abdicated his powers and duties to decide the matter and acted on the dictation of another (the second respondent). He relinquished his duty to exercise a right to a fair trial and just right to administrative justice,” Mpendulo alleged. The veracity of these allegations is still to be tested in court. He argued that the decision of the former prime minister was biased and malicious, not taken in a fair and just manner. Mpendulo submitted that Barnabas did not give written reasons for his decision in terms of Section 33 of the Constitution Act 2005. Mpendulo of Mhlangatane in the Hhohho Region has applied to the High Court to review the decision of the former PM, who confirmed his dismissal. He wants the court to set aside the decision to dismiss him and compel the police service to reinstate him. He further applied for his salary to be reinstated, among other prayers.

Unlawful

Mpendulo argued that his dismissal was unlawful. He alleged that the late natcom did not abide by the rules of natural justice and the right to administrative justice in law when dealing with his matter. Mpendulo is represented by Leo Ndvuna Dlamini. Meanwhile, the late National Commissioner of Police, William Tsitsibala Dlamini, during his tenure, said there was nothing to suggest that Barnabas was biased or that he did not observe the rules of natural justice or the requirements of administrative justice. According to William, who deposed to the answering affidavit, from the averments, Barnabas was sick, went to hospital and died a week later. The former national commissioner pointed out that Mpendulo did not substantiate his allegations, which he denied as baseless.

William said the disciplinary proceedings were lawfully conducted in accordance with the Police Act and regulations in terms of which the commissioner exercised disciplinary powers over the applicant. He argued that the disciplinary powers were long delegated to the commissioner by the Civil Service Order 16/1973 in terms of sections 181 and 187 of the Constitution. He further told the court that the provisions of Section 189 of the Constitution were subject to the establishment of the Police Service Commission in terms of Section 267 of the Constitution. According to William, the Board before, which Mpendulo appeared, was a lawful creature of the Police Act of 1957 and its regulations as applicable in 2014. He said the Police Act of 2018 was inapplicable because it was not in force in 2014 when Mpendulo’s conduct was inquired into. The late Natcom further informed the court that there was no legal requirement for the national commissioner to personally appear before the PM to defend his decision. “Only the applicant had to appear to prosecute his appeal. I further deny the unsubstantiated allegations of bias, failure to apply the mind to the issues, malice, dictation and mere reliance on the letter of dismissal.

Proceedings

“On written reasons, an applicant cannot so complain because he did not request for same. He was contented with the spoken word. The single officer’s proceedings were similar to those of the magistrates’ court trying criminal cases. The record bears out this fact,” William submitted. William also argued that Mpendulo’s founding papers did not support the relief sought. He said each of the relief’s sought could not be granted for the reasons set out herein below. Mpendulo’s prayer for reinstatement with arrear wages, according to William, was unfounded and untenable because he pleaded guilty to the dishonest act of theft, which eroded the necessary element of trust in the employment relationship. The matter is pending in court.