Times Of Swaziland: 4HIM RUNS TO COURT OVER TERMINATION OF UNESWA CONTRACT

4HIM RUNS TO COURT OVER TERMINATION OF UNESWA CONTRACT
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Mbongiseni Ndzimandze on 24/05/2022 15:12:00


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.