Times Of Swaziland: PHASE II BATTLE: NATCOM A ‘BITTER LOSER’ - JUNIOR COPS PHASE II BATTLE: NATCOM A ‘BITTER LOSER’ - JUNIOR COPS ================================================================================ Kwanele Dlamini on 13/01/2025 08:35:00 MBABANE - The ongoing legal battle between REPOSA and the National Commissioner (NATCOM) of Police, Vusi Manoma Masango, has taken a dramatic turn. In a scathing affidavit filed in response to the national police commissioner’s application for judicial review of the Supreme Court judgment in favour of the Royal Eswatini Police Staff Association (REPOSA), the staff association accused Masango of being a ‘bitter loser’, who is unwilling to accept the court’s decision. The dispute is centred around the implementation of Phase II of Circular No. 2 of 2014, which deals with salary and benefits for junior police officers. Following a successful appeal by REPOSA, the Supreme Court ruled in favour of the officers. Application However, the commissioner has filed an application for review, arguing, among other things, that Chief Justice (CJ) Bheki Maphalala should have recused himself from the case due to a perceived conflict of interest. The CJ’s wife, Constable Innocentia Mdi Tsabedze, is a junior police officer, who stands to benefit from the implementation of Phase II. In her affidavit, REPOSA Secretary General (SG) Dumsile Khumalo ferociously defended the Supreme Court’s judgment. “Clearly, there is no miscarriage of justice here. The party on whom the responsibility to implement Phase II rests admits its liability to implement Phase II and further aligns itself with the Supreme Court’s judgment,” Khumalo stated. Khumalo further accused Masango of displaying a ‘bitter loser’ mentality. “This, I say based on statements, which were made by the Applicant to us around September 2024. When the applicant was appointed as national commissioner of police, we as a staff association paid him a courtesy call just to congratulate him on his appointment and to also extend an olive branch over our internal issues surrounding Phase II. The applicant told us that ‘maningayiwina lendzaba enkantolo kungasho kutsi tsine kumele si resign ngoba ningeke seniphindze nilawuleke.’ (translated to mean that if you were to win the appeal which is pending in court, we would have to resign because you would be ungovernable),” she revealed. Regarding the CJ’s alleged bias, Khumalo argued that the commissioner’s concerns should have been raised during the court proceedings, not after the judgment was delivered. “The issue of bias is raised post-judgment. I am advised and verily believe that, once judgment has been rendered, the applicant must prove actual bias. There is nothing to apprehend at this stage because judgment is already in the hands of the applicant,” she emphasised. Khumalo also pointed out that the commissioner allegedly failed to address the fact that the Supreme Court judgment was unanimous, delivered by a bench of five judges. “What is further remiss of the applicant on this ground is that he has always known that 5444 Constable Innocentia Mdi Tsabedze is married to the honourable chief justice, but did not raise the issue of apprehension of bias,” she stated. She submitted that the appellate court, in paragraph 18 of their judgment, correctly identified the root cause of the dispute as the non-implementation of Phase II of Establishment Circular No. 2 of 2014. In her affidavit, Khumalo averred that: “This crucial point, acknowledging the interconnectedness between the non-implementation of Phase II and the disciplinary actions faced by REPOSA members, was a significant step towards a holistic resolution of this matter.” “Furthermore, Khumalo emphasised that the Appellate Court sought guidance from both legal teams on how to proceed with the case, given that both cases dealt with fundamental rights and freedoms in the context of collective bargaining within the security forces,” she stated. “Our attorney proposed that the matters be treated as one on appeal, allowing arguments from one case to be applicable to the other. The commissioner’s legal team did not oppose this approach.” “Khumalo also addressed the commissioner’s concerns regarding Section 39(3) of the Constitution, which he alleges was not properly considered by the court. ‘I still maintain that Section 39 (3) is in effect a claw-back clause’. The arguments we advanced on this ground before the appellate court remain valid, and the commissioner is essentially seeking a re-hearing of the appeal, which is not the purpose of review applications under Section 148(2) of the Constitution.” Baseless “She contended that the application for review present is without merit, baseless and an abuse of court process. It has no prospects of success at all. The SG stated the appellate court’s judgment fundamentally addresses two key issues: (a) The implementation of Phase II of Establishment Circular No.2 of 2014; and (b) the constitutional rights and freedom of junior police officers within the context of collective bargaining.” Khumalo further emphasised the limitations of the commissioner’s arguments. ‘The judgment of the Appellate Court fundamentally addresses two issues: (a) The implementation of Phase II of Establishment Circular No. 2 of 2014; and (b) the setting aside of disciplinary proceedings against police officers in connection with Phase II,’ she stated in her affidavit.” “Regarding the implementation of Phase II, Khumalo argued that the commissioner does not have a locus standi to challenge this aspect of the judgment. ‘Furthermore, the principal secretary in the Ministry of Public Service at whose instance the applicant (NATCOM) seeks to argue against the implementation of Phase II has accepted the judgment of the Supreme Court and issued a Press Statement that the same will be implemented,’ she pointed out. On the issue of disciplinary proceedings, Khumalo asserted that the commissioner has not demonstrated the authority to discipline police officers. The powers of the NATCOM to discipline police officers were pointedly questioned by the Appellate Court during the hearing of the matter,” she stated. Judgments ‘The honourable chief justice raised the issue, and it was reiterated by His Lordship S.P. Dlamini JA, who pointed out that the Supreme Court has issued a number of judgments directing that the Police Service Commission contemplated in section 189 (5) of the Constitution should be appointed’.”His Lordship S.P. Dlamini JA pointed out to the attorney general that it is now almost 20 years since the Constitution came into force, and he posed the question as to how long shall ‘pending’ be pending (he was referring to the provision in section 189 (5) of the Constitution, which states that, ‘...pending the formal establishment of a sector service commission or similar body, shall continue being the responsibility of the Civil Service Commission, subject to any delegation of that responsibility’).” Khumalo concluded by stating: ‘It is my humble submission, therefore, that in demonstrating his prospects of success in the matter, the applicant must also demonstrate that he has the power to discipline police officers’.”