Times Of Swaziland: PHASE II BATTLE: NATCOM A ‘BITTER LOSER’ - JUNIOR COPS

PHASE II BATTLE: NATCOM A ‘BITTER LOSER’ - JUNIOR COPS
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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’.”