Times Of Swaziland: DISMISSED COP SAYS LATE PM WAS TOO ILL DURING APPEAL

DISMISSED COP SAYS LATE PM WAS TOO ILL DURING APPEAL
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Kwanele Dlamini on 17/04/2024 10:53:00


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.