NO GOVT’S PENSION CONTRIBUTION FOR FIRED CIVIL SERVANTS

MBABANE - The Supreme Court, constituted as a review court, has pulled the plug on dismissed civil servants receiving their PSPF benefits in full.

Despite their services having been terminated, civil servants could be paid their Public Service Pensions Fund (PSPF) benefits, including the employer’s contribution. This started happening after the Supreme Court, in its appellant jurisdiction, allowed an appeal that had been filed by a civil servant, who was dismissed for theft of government property.
In the appeal, Alfred Mia, among other prayers, wanted the High Court to direct PSPF to pay him the balance of his pension benefits (being the employer’s contribution), after he was earlier on paid only the amount that he had contributed.The matter was dismissed by the High Court and on appeal, Supreme Court Judge Sabelo Matsebula, allowed Mia’s appeal. The result was that civil servants, despite being dismissed from work, could be refunded their contribution as well as the employer’s contribution.

Review

PSPF filed an application to review, correct and set aside the judgment of the appeal court. On review, Chief Justice Bheki Maphalala found in favour of PSPF. The CJ substituted Judge Matsebula’s judgment with an order dismissing Mia’s appeal. The CJ sat in the matter together with judges Jacobus Annandale, Stanley Maphalala, Nkululeko Hlophe and Magriet van der Walt. The effect of the review judgment is that the PSPF will continue to pay pension contributions in respect of dismissed civil servants or those on forced retirement in consequence of instituted disciplinary proceedings by applying regulations of the Public Service Pensions Fund Act, 1993.

The PSPF regulation dealing with payment of pension contributions to dismissed civil servants provides that if a member is dismissed from service or forced to retire as a consequence of disciplinary procedures against him, he or she shall be entitled to a refund of his contribution with interest as accrued in terms of the provisions of Regulation 3(4). This provision states that a member’s contribution shall be recorded in the member’s account, which shall be credited with interest every year at a rate fixed by the Board.

In Mia’s case, the Eswatini Government dismissed him on November 9, 2011, in terms of Section 36(b) of the Employment Act. He was accused of stealing government property. On November 30, 2015, he wrote to the chief executive officer (CEO) of PSPF requesting to be paid his pension contributions. PSPF paid Mia’s contributions on December 7, 2015, in the amount of E53 680.15. He subsequently instituted legal proceedings against government in the Industrial Court seeking reinstatement or maximum compensation for unfair dismissal. He also wanted to be paid notice pay and additional notice pay amounting to E101  440.41.

Settlement

A Deed of Settlement was concluded between the parties for a full and final settlement. It was signed by the parties on the October 6, 2017. This settled the dispute that was pending in the Industrial Court. In his judgment, the CJ said the Industrial Court did not decide whether or not the dismissal was fair in view of the Deed of Settlement concluded by the parties. The amount is said to have been a compromise and did not constitute an admission by the employer that the dismissal was unfair. In February 2019, Mia, through his attorneys, demanded payment of the employer’s pension contribution, which he claimed was the balance of his pension.

PSPF rejected the claim on the basis that Mia was dismissed and that he was only entitled to his pension contribution, which was duly paid. In September 2019 he instituted legal proceedings before the High Court. He was seeking an order directing PSPF to calculate the amounts due to him from his pension benefits including interest. He further sought an order directing PSPF to pay the balance of his pension benefits after calculation. The court dismissed the application on the basis that he had been paid his pension contribution as required by Regulation 13, and that in view of his dismissal from employment, he was not entitled to the employer’s contribution.

The court further held that the dismissal of the respondent was not reviewed and set aside by the Industrial Court; and, that the payment of the terminal benefits resulted from a Deed of Settlement between the respondent and his employer. Mia appealed the judgment of the High Court on three grounds of appeal. Judge Matsebula delivered a majority judgment and concluded that the real issue in dispute revolved around Regulation 13 of the PSPF Regulations, and that Regulation 13 refers to lawful dismissal.

Concluded

The court concluded that Mia’s dismissal was unlawful on the basis that his criminal charge did not proceed to a criminal trial, and that this was indicative of a lack of evidence on the commission of the offence. The judge further said the lack of evidence on commission of the offence was government’s decision to conclude a Deed of Settlement with Mia when it was challenged at the Industrial Court and consequently paid the amount of E101 440.41 in full and final settlement of the claim. Judge Matsebula allowed Mia’s appeal and the decision of the High Court was set aside. Costs were awarded to PSPF.

There was a minority judgment issued by Judge Mbutfo Mamba. Judge Mamba agreed with the majority judgment that the dismissal referred to in Regulation 13 of the Public Service Fund Regulations of 1993 was lawful dismissal, and that this regulation was not inconsistent with Section 16(9) of the Industrial Relations Act of 2000 as amended. However, Justice Mamba concluded that the majority judgment made three fundamental and profound errors and dismissed the appeal, which the court granted and set aside the judgement that was in favour of Mia. PSPF was represented by Kenneth Motsa of Robison Bertram while Sifiso Jele of SM Jele Attorneys appeared for Mia.

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