TEACHER CONVICTED IN DAGGA CASE CHALLENGES DISMISSAL

MBABANE – A teacher who was dismissed from work after she was convicted of being found in possession of dagga wants the High Court to declare part of the Teaching Service Regulations of 1983 null and void.

Nhloniphile Mbatha wants the court to declare Regulation 18(4) (b) of the Teaching Service Regulations of 1983  null and void on the grounds of being inconsistent with the Constitution.

Section (18) (4) (b) makes it mandatory that once a teacher in the Kingdom of Eswatini is found guilty by any of the courts and sentenced to a fine of E1 000, that teacher should be terminated by the commission without holding a disciplinary hearing to investigate misconduct

Respondents in the matter are the Teaching Service Commission, minister of Justice and Constitutional Affairs and attorney general.

Mbatha also wants her dismissal to be set aside. In her application, Mbatha informed the court that until October 9, 2020, she was stationed at Ngwane Central High School.

Travelling

“On July 22, 2017, I was arrested by members of the Royal Eswatini Police Service while travelling as a passenger in a motor vehicle, a sedan. I was travelling on the Yithi Abantu Highway from Manzini to Nhlangano,” submitted the applicant (Mbatha).

She narrated that after evidence had been led by the police officer who arrested her, the magistrate found her guilty of being found in possession of dagga weighing 3.6kg.

Mbatha said she was sentenced to two years imprisonment or to pay a fine of E2 000, which she duly paid.

“I was unhappy with the conviction. My unhappiness was founded from the fact that the driver of the motor vehicle had made it known to the magistrate that I had sought a lift and that there was no way I could have been aware of the dagga,” argued the applicant.

She claimed that she could have not been aware of the presence of dagga due to the fact that it was in the boot of the vehicle and wrapped in a plastic bag in order to contain the smell.

Mbatha alleged that she instructed attorney Bonginkhosi Xaba to file a review on her behalf as she felt that there had been a miscarriage of justice. She asserted that the attorney informed her that she went to Nhlangano Magistrates Court on July 25, 2017 to get a copy of the record of proceedings, but it could not be located by the clerk.

“Sometime during the year 2018, I was called to the offices of the TSC where I was informed that the commission was considering terminating my services in accordance with Regulations 18(4) of the Teaching Service Regulations of 1983.  I then instructed my attorney Xaba to engage the commission,” she argued. Mbatha averred that on October 9, 2020, she appeared before the commission. 

“I was informed by the chairperson that my services as a teacher were being terminated with immediate effect. The chairperson informed me that the commission had invoked Regulation 18(4) (b) of the Teaching Service Commission,” submitted the applicant.

She contended that the regulation removed the requirement that; the employer should charge her for violation of any regulation in the employer’s disciplinary code.  

Regulation

Mbatha argued that what was required by the regulation was a certification from the police that she had been convicted of a crime and sentenced to a period of imprisonment or a fine.

The applicant highlighted that it was immaterial that the offence for which she had been convicted had nothing to do with her duties as a teacher and it was unimportant that the crime did not occur where she was employed.

“A nurse, doctor, police officer or soldier can be charged for a similar offence as the one I was charged with, but will not be dismissed until a finding that such conviction brought the reputation of the organisation into disrepute,” she submitted Mbatha.

She informed the court that she had a right to a fair hearing which was enshrined in the Constitution of the Kingdom of Eswatini. Mbatha further argued that the right to a fair hearing could not be derogated as envisaged by the Constitution.

The matter is still pending in court and the respondents are yet to file their papers. 

Mbatha is represented by lawyers from V.Z Dlamini Attorneys.

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