SUPREME COURT RULES: GIVE JUNIOR COPS PHASE II

MBABANE – “Government must show ‘nkwe’ in complying with the Supreme Court order to implement Phase II.”

This was Royal Eswatini Police Staff Association (REPOSA) Secretary General Dumsile Khumalo’s reaction to the Supreme Court judgment that found that Circular No.2 of 2014 (Phase Restructuring of the Royal Eswatini Police Service and His Majesty’s Correctional Services) is binding to the parties. The Supreme Court directed that government should comply with, and honour its commitment and undertaking as contained in the circular within reasonable time.

Circular No.2 of 2014 makes provision for immediate salary increases for senior officers in both the police and Correctional Services in terms of Phase I. Phase II was to benefit junior officers. However, only Phase I was implemented. The Supreme Court yesterday also ordered that the intended disciplinary proceedings arising from or pertaining to Circular No.2 of 2024 and delivery of the petition in respect of terms of service are unlawful and shall not proceed. The matter was heard by Chief Justice (CJ) Bheki Ma- phalala together with judges Phesheya Dlamini, Sabelo Matsebula, Mbutfo Mamba and Magriet Van Der Walt.

Several reasons were put forward for the non-implementation of Phase II, including -
a.     that government would implement it; (b) government had already implemented it through another salary adjustment relating to all public servants and (c) the officers should make submissions to another salary restructuring exercise that government was setting up.
The circular sought to improve the lives and welfare of members of the Royal Eswatini Police Service (REPS) by increasing their salaries.
The cause of the dispute was born from the implementation of this circular, which was issued through the Ministry of Public Service.
The few members of REPOSA who were in court failed to contain their excitement when the judgment was delivered. Other police officers who heard the outcome of the court proceedings were also on cloud nine.

“Finally! There was no other way. No matter how long it took, the end would have been this. Saphose safa, kudlelwa tikwetfu,” said an overjoyed police officer who had just heard about the judgment.

Reneged

In the judgment, the CJ said, in short, government reneged from its legal obligations as contained in the circular after awarding senior officers lofty salaries. Maphalala said the effect of this was to divide the forces and create ill feelings between the senior and the junior officers. “This action was itself a threat to national security. The senior officers were set against the junior officers. While the junior officers were vulnerable, the senior officers, who had the commissioner of police in their group were insulated, as the commissioner of police had disciplinary powers entrusted to him by the Constitution and the Police Service Act (PSA).

“When the junior officers wanted the share of their money as promised in the circular, the commissioner reacted by the use of his disciplinary powers, challenging the manner of presenting their grievances through a petition,” said the court. Maphalala also stated that the commissioner of police further decreed against the junior officers from holding meetings to discuss issues pertaining to the circular. He said it could not be disputed that the commissioner of police has wide statutory powers relating to the maintenance of peace, security and order as well as disciplinary powers over his officers for good reasons.

The question that arises and needs to be decided by the court, according to Maphalala, was whether the commissioner exercised those powers correctly; that is lawfully and within the spirit for which the powers were given. The court noted that Section 39 (3) of the Constitution seems to be an open power without limits, which can be used by government as it pleases and when it pleases. He was quick to point out that it could not be so. The CJ said Section 25 allows for limitations to be imposed but they must be reasonable and justifiable in a democratic society.

He further stated in the judgment that they had also seen that countries are bound by the international treaties they voluntarily signed and by so doing surrendered the Sovereignty they had. “We have cited the relevant ILO statutes stating that government and its officials must not interfere in the affairs of legal or lawful workers’ associations except for the protection of public health and national security.

“Again we note that a government is established by the people, but not to kill the very people who established it. Its purpose is for harmonious co-existence of the people. It is difficult for the court to understand where does it disturb the peace, if junior officers peacefully ask for the money promised to them by government in 2014 through the circular,” further reads the judgment. Maphalala said it is further difficult to fathom how peace is disturbed if junior officers meet during their off-duty time to peacefully discuss welfare issues emanating from the circular, lawfully issued by government for the benefit of these officers.

Powers

He mentioned that it is also difficult to understand what is wrong with delivering a petition with a list of grievances to their minister, especially where the powers that be have failed to establish a working commission as required by law and also where the current government negotiation structures have no seat for the junior officers. In the present case, for instance, according to the court, there was no iota of violence or pending violence or likelihood of destruction of property or riotous assembly, but instead, the junior officers were welcomed by the under secretary at Cabinet offices.“Again the holding of a meeting to discuss terms of employment cannot be a danger to national security. The commissioner had not proffered any reasons for his actions except a display that he had powers to do what he did,” said the CJ.

Post your comment

Your name:

Your e-mail address:

Add your comments:

Please enter the code you see in the image:

Image:

Code: