Times Of Swaziland: MBONGWA WINS CASE AGAINST TSC, BUT…

MBONGWA WINS CASE AGAINST TSC, BUT…
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Kwanele Dlamini on 16/11/2024 07:06:00


MBABANE – SNAT President Mbongwa Dlamini says he is going to work on Monday.
This was after High Court Ju- dge Zonke Magagula, yesterday declined the
Teaching Service Commission’s (TSC) review application of the Industrial Court
judgment which set aside Dlamini’s dismissal letter. The Industrial Court also
ordered, on March 21, 2024, that Dlamini’s disciplinary hearing for
absenteeism be reconvened. The TSC was dissatisfied with the decision and
instituted the review proceedings at the High Court. The TSC had initially filed
an appeal in the Industrial Court of Appeal but withdrew with in favour of the
review proceedings. Judge Magagula said in the judgment, that the Industrial
Court did not commit an error of law in assuming jurisdiction in this matter.
He said, effectively, the Industrial Court set aside the dismissal of the SNAT
president. According to the judge, if the verbal dismissal and the letter
confirming same are set aside, then the consequences are that the status quo
ante obtains. “What is worthy of note is that the respondent’s (Dlamini’s)
application in the court a quo was not to declare the dismissal unfair in terms
of Section 35 of the Employment Act. But essentially, respondent sought to have
the dismissal set aside, in other words declared to be invalid or as never
having taken place,” said the judge.
The judge also mentioned that an invalid dismissal is a nullity. In the eyes of
the law, an employee whose dismissal is invalid has never been dismissed,
according to the court. Judge Magagula also stated that if in the eyes of the
law, that employee has never been dismissed, that means the employee remains in
his or her position in the employ of the employer.
Judge Magagula said in the present case, Dlamini may have unduly caused the
delay of the finalisation of the disciplinary enquiry. This prompted the TSC to
rule that the matter would proceed with or without the SNAT president and his
attorney.
Absence
The TSC elected to proceed with the hearing in the absence of Dlamini and his
counsel, even though this may have been the only time or one of the few
occasions a genuine reason for their absence was put forward. “This suggests a
very high degree of irritation and irascibility. This is compounded by the fact
that the respondent was required to present arguments or submissions in
mitigation without being furnished with the reasons for the verdict. The
applicant rigidly stuck to its earlier decision and failed to take into account
current circumstances,” said Judge Magagula. The judge went on to decline the
TSC’s application for review and to set aside the judgment of the Industrial
Court.
Dlamini addressed the union representatives and political party members and
officials who gave him moral support, after the judgment was delivered. He said
his victory is not the end because they are not aware what government will do.
However, he said on Monday, he is going to work. He had been posted to Moyeni
High School when he was dismissed by the TSC. “The court today said the
president must go to work. You will see how difficult they are going to make it.
They will ask for an instrument. They must know that as a law abiding citizen, I
am going to abide by the court order. I will not think twice. I will do as the
court has ordered, immediately.
“If it was not that the school is out now, I would have gone there already. On
Monday, I am going to work. Those who have no respect for the law will be
exposed.  I am not going there to cause problems but to teach. I am ready for
work. I was ready even before they stopped me. I am still ready,” said
Dlamini. According to Dlamini, nothing supercedes a court order. If, according
to Dlamini, the court ruled that he was not supposed to go to work, he would not
do so out of respect for the rule of law. The SNAT president, however, pointed
out that this is not the end and they should not be complacent. He said it is
expected that government will not fold its arms. He said theirs was to persevere
and not be complacent. He said his victory is an example of what they can
achieve if they remain united. Dlamini was represented by Lucky Howe while Zweli
Jele appeared for the TSC.