VICTORY FOR CIVIL SERVANTS SUSPENDED FOR OVER 6 MONTHS

MBABANE - A recent notable judgment by the Industrial Court has thrown a spanner in the works of government’s disciplinary processes.

The judgment, which was issued by Judge Manene Thwala, potentially frees numerous civil servants who have been suspended for extended periods, without being taken to a disciplinary hearing in over six months. The court, in a case involving an Eswatini National Fire, Rescue and Emergency Services (ENFRES) employee, ruled that government is bound by a six-month time limit to initiate and conclude disciplinary hearings. Any delay beyond this period, the court determined, violates the Constitution and the Public Service Order Act.
This ruling has far-reaching implications, particularly for high-profile cases like that of the five senior health officials, who were facing charges related to the recent medical drugs and supplies shortage. Their disciplinary hearing was abruptly halted after their lawyer cited this Industrial Court’s judgment.

Suspected

One of the senior health officials is Assistant Director of the Central Medical Stores (CMS) Themba Motsa, who was suspected of allegedly initiating a supported payment of E9 million for donated trial drugs, without a tender document and purchase order. Motsa was also accused of alleged gross negligence, in that in various occasions between 2020 and 2022, he allegedly failed, without proper cause, to perform the proper care that was required. It is alleged that he allowed or facilitated orders and deliveries of drugs and medicine with short shelf-life. This is said to have resulted in wasteful expenditure, which amounted to E83 million.

Senior Pharmacist Yoliswa Zwane is another health official whose hearing will have to stop due to the judgment. She is, among other charges, accused of contravening the Public Service Act in that on February 8, 2023, she allegedly colluded with AMB Medicals to accept surgical gloves, which had a seven-month shelf-life, contrary to the established practice for accepting drugs.The judgment has also brought attention to a long-standing issue, the numerous civil servants who have been suspended for years without their disciplinary hearings being concluded. Some of these individuals have reportedly been receiving their salaries for up to a decade, despite their suspension.

With the new precedent set by the Industrial Court, government is now compelled to either expedite disciplinary proceedings or reinstate suspended civil servants, who have been waiting for over six months. This development is expected to have significant financial and administrative consequences for the public service. As government grapples with the implications of this ruling, there are concerns about the potential impact on public service delivery and accountability.

Review

Legal experts suggest that government may need to review its disciplinary procedures, to ensure compliance with the court’s decision and to avoid future legal challenges. The recent case where the judgment was used was in the disciplinary hearing of one of the health officials.  The lawyer argued that six months had elapsed since his client was suspended without a hearing, therefore, the Civil Service Commission (CSC) cannot proceed with same, because it was time barred. In this matter, Judge Thwala declared the arraignment of the firefighter, Sizwe Dlamini, before the CSC, as per notice of invitation to attend the disciplinary hearing dated August 5, 2024, as irregular and of no legal force or effect.  Dlamini was suspended at his workplace, ENFRES, at Siphofaneni, for allegedly kidnapping and assaulting a supervisor in 2021. However, his disciplinary process was only initiated last month.

The firefighter was charged with absenteeism, kidnapping and assault of the supervisor. He approached the Industrial Court to nullify the delayed disciplinary process. Dlamini argued that his charges emanated from a period in excess of three years. He cited Section 194(4) of the Constitution, which states that ‘the matter of a public officer who has been suspended shall be finalised within six months, failing which, the suspension shall be lifted’.

Regulations

The Public Service Regulations of 2019, under Regulation 65(1) states that: “All acts of misconduct by public officers shall be dealt with under these regulations within the confines of the Constitution of the Kingdom of Eswatini, which is six months. The interested party may move an application before the Public Service Commission, should the time frame stipulated in the Constitution prescribe.” According to Dlamini, this was presented to the chairperson of his disciplinary hearing, but he was adamant to proceed with the matter.

Judge Thwala determined that the CSC must institute disciplinary proceedings and complete them within six months after having suspended a public servant. If this does not happen, they lose the right to discipline the civil servant. This, according to a legal expert, will affect a number of cases. In the matter before Judge Thwala, the applicant submitted that on March 16, 2001, he allegedly arrived at the Siphofaneni station of the ENFRES and went for the Station Officer, Samson Maseko.

When he arrived, he registered a grievance emanating from action that was taken by the supervisor against him. The supervisor had apparently identified the firefighter as one of the employees who had absented themselves during a perceived industrial action. The firefighters had embarked on a strike to try and force the employer to yield to certain demands.
 The supervisor later reported to his superiors that his subordinate had locked him inside his office and manhandled him. He further alleged that he was struck with a stapler by the subordinate, who was using intimidating language against him. During that skirmish, the supervisor was said to have been grabbed by his waist belt and banged against the wall.

Suspension

The court heard that on April 28, 2021, Dlamini was arraigned for a pre-suspension hearing. The outcome of the hearing was a letter dated June 3, 2021, which placed him under suspension with full pay. Dlamini, during the same period of the pre-suspension hearing, was also invited to a preliminary investigation inquiry for misconduct. The committee that conducted the investigation concluded its report by making a finding to the effect that there existed a case of misconduct for Dlamini to answer. This recommendation was issued by the committee on April 11, 2022.

Despite the conclusion of the preliminary investigation, the attorney general (AG) is said to have failed and/or omitted to action the matter further, until April 11, 2024. The AG is said to have caused a letter to be issued, inviting Dlamini to appear before the CSC, to show cause why his terms of suspension should not be varied from ‘full pay’. Judge Thwala noted that it appeared that the CSC’s actions also prompted the principal secretary in the Ministry of Housing and Urban Development to act, because it also caused charges of misconduct to be preferred against the firefighter.

It is the legality of this invitation to appear before the chairman of CSC to answer for the alleged acts of misconduct that were put to question in court.  For his part, Dlamini, who was represented by Siyabonga Zwane of CJ Littler and Company, averred in his papers that he attempted to raise this point at the first sitting of the disciplinary hearing, but was overruled by the CSC chairman. Dlamini’s arguments before court was that his arraignment for misconduct, which took place over six months ago, was invalid, for being in violation of Section 194 (4) of the Constitution of the Kingdom of Eswatini. The court said this section must be read together with Regulation 37 (1) of the Civil Service Board (General Regulations), 1963.

Hearing

Government, which was represented by Kim Magagula, argued that no disciplinary proceedings were pending before the CSC, at least prior to the issuance of the letter of invitation to attend a disciplinary hearing on August 20 and 21, 2024. Judge Thwala said the notice of invitation was dated August 2, 2024. “Of course, it is not correct to say that there is no matter that is pending before the Civil Service Commission against the applicant (Dlamini). Applicant’s founding affidavit is clear that he (applicant) was invited, (on two separate occasions), to attend before a preliminary investigation committee on allegations of misconduct. “The first of these letters of invitation is dated December 21, 2021 and the last one is March 22, 2022. It is also interesting to note that the line ministry, i.e. Ministry of Housing and Urban Development, did complete and cause to be forwarded to the Civil Service Commission, the said report together with recommendation,” reads the judgment.

Judge Thwala said the court was of the firm view that, having been served with the report, which recommended the institution of disciplinary proceedings against Dlamini, it was remiss of the CSC not to take disciplinary action against him promptly and as soon as possible.

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