JUNIOR OFFICERS’ PHASE II CASE: IS IT FAIR, WHAT’S WRONG WITH MARCH TO PM? - CJ

MBABANE – “Ten years down the line, Phase II has not been implemented, is it fair?”

Chief Justice (CJ) Bheki Maphalala asked this question yesterday, when hearing the appeal filed by the Royal Eswatini Police Staff Association (REPOSA) against the national commissioner (NATCOM) of police and the commissioner general (COMGEN) of His Majesty’s Correctional Services. The CJ went on to say that some officers were charged for pursuing the issue of Phase II and he asked, ‘why are you doing this?’ 

These questions were directed to the representatives of the attorney general (AG), Assistant AG Mndeni Vilakati and Crown Counsel Henry Sibandze. Maphalala also asked why it was necessary to please senior officers and neglect the junior officers. “Why divide them? Just confide in the court, is there anything that is withholding the implementation of Phase II?”
Vilakati said he would need to take instructions to answer the last question. Sibandze was asked by the CJ if Circular No.1/2014 was implemented, as it relates to junior officers and he said ‘no’. Maphalala asked why it was not and Sibandze said the matter to be dealt with by the court was not the issue of the circular. He said he could not give a response right away.
The CJ heard the matter together with judges Phesheya Dlamini, Mbutfo Mamba, Sabelo Matsebula and Magriet Van Der Walt. In this matter, two applications were consolidated at the High Court and were heard by a full bench, to address constitutional issues.

Picketing

In the first matter, the NATCOM and COMGEN were the applicants. They sought an interdict and to restrain REPOSA members, or members of the security forces, from marching, picketing, taking part in a strike action or to deliver a petition in October 2022 to the Prime Minister’s Office. In the second matter, the applicant was Dumsile Khumalo, in her personal capacity, and also as Secretary General of REPOSA. The respondents were the NATCOM and the presiding officer of the Enquiry Board, who were represented by the AG. Among other prayers, Khumalo wanted her suspension and/or attempt to suspend her and/or members of REPOSA from activities of the staff association, to be declared unconstitutional. 
She also sought a declaration of the appointment and empanelling of officers below the rank of assistant commissioner to administrative Boards to hear matters pertaining on the affairs and activities of REPOSA constitutes an unfair labour practice. Both applications were decided against REPOSA and Khumalo by the full bench, hence they approached the Supreme Court.

According to REPOSA, it so happened that in 2021, members of the two staff associations discovered that in 2014, there was a circular, whose effect was to widen the remuneration gap between junior officers and senior officers. Circular No.1/2014 made provision for the immediate increase of salaries for senior officers in terms of Phase I and junior officers were to benefit from the under Phase II. However, junior officers say they are yet to receive the benefits which are due to them.

Meetings

A series of meetings were held by junior officers and resolutions were taken on how to pursue their demands for Phase II. In one of their meetings, a resolution was taken to march to deliver a petition to the Ministry of Public Service. After delivering the petition on October 11, 2022, the REPOSA secretary general was served with a letter inviting her to appear before an administrative Board appointed by the NATCOM to show cause why she should not be suspended from duty and from participating in activities of REPOSA. REPOSA is represented by Thabiso Mavuso of MotsaMavuso Attorneys. The CJ asked if it is correct that the Police Act allows the formation of a staff association and Vilakati responded to the affirmative. However, he said they are prohibited from demonstrating; marching or picketing.

Section 68(1) of the Police Act, 2018 establishes the police staff association and it states that its mandate is to make representations to relevant government negotiation structures on social and welfare interests of the police service, which includes but not limited to remuneration, salaries, allowances or any other payment, pension or conditions of service.  “How will they advance their interests?” asked the CJ. Vilakati said the staff association is a creature of statute.  Judge Dlamini enquired how one creates a body to advance labour interests and then emasculate it; you give with one hand and take with the other. “What’s the purpose?”

Vilakati said a statutory body can only do what the statute provides. Judge Dlamini said the staff association is a bargaining entity and has to exercise such rights. “How should they communicate their grievances to the employer? Doesn’t it include the delivery of petitions?” Vilakati said the police service is not like any other employee body.  The CJ said: “Unless you are saying they should have come by helicopter. They are expected to walk to deliver a petition. They brought the petition, because they do not agree with the employer.” Vilakati said the statute says they should raise their issues before government negotiations structures. He said police are not like others employees, such as teachers.

Grievances

Lawyer Thabiso Mavuso said the government negotiation structures are for trade unions, not staff associations. The CJ asked: “What is wrong with delivering a petition? It is a list of their grievances. The staff association is recognised. They did not agree with the employer, so they went to deliver a petition.” Judge Dlamini asked what was unlawful with walking to deliver the petition. Vilakati said the junior officers’ conduct was a demonstration, when they went to deliver their petition. The court also enquired if it should not be what or how they did it. The CJ said they needed to agree that the junior officers were pursuing a labour issue, which is neither political nor moral. “They are an association that went there to deliver a petition of grievances. What is wrong with walking to deliver a petition?”

Vilakati stated that it was prohibited by the statute. The CJ further asked: “Did they distract traffic? Were they disorderly? Did they burn any cars along the way? What wrong did they do? How are they going to pursue their labour issues?” Judge Dlamini enquired: “If they cannot go to their line minister or to Parliament, where will they present their grievances?” Vilakati said they could go to the government negotiations structures. The CJ then asked if the junior officers are prohibited from going to the prime minister if they are not happy. The court also pointed out that this matter is very serious, which is why it was being dealt with in other fora; Parliament, Cabinet and the court.  This, according to Judge Dlamini, creates a difficulty. Judge Matsebula wondered why the Judiciary was being put on the spotlight.

The Phase II issue, according to Maphalala, affects hundreds of junior officers ‘yet you charge them for pursuing it. You have to do the right thing and we will do the right thing, I can assure you’. Notably, one of the CJ’s wives is a police officer. The court reserved its judgment in the matter. The CJ said: “We will come to the right judgment.”

Post your comment

Your name:

Your e-mail address:

Add your comments:

Please enter the code you see in the image:

Image:

Code: