EMBEZZLED FUNDS CANNOT BE RECOVERED FROM PENSION

MBABANE – Hands off their pension benefits The High Court has declared the law which empowered government to withhold pension for civil servants or public officers who had been found on the wrong side of the law as unconstitutional.

Usually, the State would approach the courts for an order to withhold pension for civil servants who had been dismissed for misappropriation of funds. Most of the culprits were school head teachers and officers from the law enforcement agencies.

This effectively means that even the Parliament Public Accounts Committee (PAC), which recovered monies from civil servants, cannot now ‘force’ the officers to sign the acknowledgement of debt allowing government to deduct money from their pension.     
The full bench of the High Court found that Section 32(2) of the Retirement Fund, which permitted such attachment, was inconsistent with Section 195 (6) of the Constitution and therefore was invalid.

The section which the court has since declared unconstitutional stipulated as follows: “A retirement fund may deduct an amount from a member’s benefit in respect of; (a) an amount representing the loss suffered by the employer due to any unlawful activity of the member and for which judgment has been obtained against the member in a court or a written acknowledgment of culpability has been signed by the member and provided that the aforesaid written acknowledgment is witnessed by the member and who had no less than eight years of formal education (b) an amount for which the employee is liable under a guarantee issue by the employer for purposes of obtaining a housing loan; provided that an original notarised document exists which confirms that the guarantee was made.”

Section 195(6) of the Constitution of the Kingdom of Eswatini provides as follows: “Pension benefits of public officers shall not be subject of attachment by order of court for the satisfaction of any judgment or civil proceedings other than in respect of maintenance.”The full bench which decided the matter consisted of Justices Mbutfo Mamba, Mumcy Dlamini and Sipho Nkosi. 

The judges made this ruling in the case where the Eswatini Government had filed an application for the attachment of terminal benefits of former Head teacher Lucky Mhlanga,
This was after Mhlanga was dismissed by the Teaching Service Commission (TSC) for allegedly misappropriating school funds amounting to E114 333.75.
After his dismissal, the Eswatini Government instructed the Public Service Pension Fund (PSPF) to deduct the aforementioned amount.
PSPF is reported to have declined to accede to this request, saying it had no right or obligation in law to effect the deduction. Section 195(6) was cited as the basic for such refusal.

A move by government to have the effectiveness of the declaration postponed failed as the court saw no value or justification to postpone its effect. Judge Mamba said; “to delay or postpone it may cause further prejudice to public servants or officers who may find themselves in the same situation as Mhlanga.”  

Judgment

Respondents in the matter were Mhlanga, PSPF and the Financial Services Regulatory Authority (FSRA). In its judgment, the full bench stated that in terms of Section 2(1) of the  Constitution, the Constitution was the supreme law of the land and where or if any other law was inconsistent therewith, that other law shall, to the extent of such inconsistency, be void.

“Therefore, what this means for example is that, where Section 32(2) of the  Retirement Funds Act is found to be inconsistent with any provision of the Constitution, the said section must be declared null and void, to the extent to which it is inconsistent with the constitutional provisions,” reads part of the judgment.
The judges said the above statement was just a cursory observation by the court as the main point for adjudication was whether this section was consonant or consistent with the provisions of Section 195(6) of the Constitution.

During the argument of the matter, government averred that there were no inconsistencies between Section 32 (2) of the Retirement Act and Section 195(6) of the Constitution. The respondents, however, argued that there were inconsistencies in these sections.

Judge Mamba said words used in a statute were clear and unambiguous and it was the duty of the court to give effect to that meaning.
“In the present case, I have stated what the two provisions of the statute mean. They are plainly inconsistent. The constitutional provisions plainly state that pension benefits of public officers may only be the subject of an attachment by an order of the court in respect of a claim of maintenance. There is no ambiguity in that,” said Judge Mamba.

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