JUDGE QUESTIONS PS’ MULTIPLE BIRTHDATES

JMBABANE – “Why does he have so many dates of birth?”

This question was posed by Judge Abande Dlamini yesterday during arguments in the matter where Sipho Tsabedze, the Principal Secretary of the Ministry of Public Service (PS), is seeking, among other prayers, to set aside the decision of the Civil Service Commission (CSC) dated January 8, 2025. The CSC issued a ruling that Sipho should retire on Monday, February 3, 2025.

Judge Dlamini of the Industrial Court also questioned why Sipho, since he claimed to have met his biological mother, who knew his actual birth records, in 1998, had waited for 24 years to change his date of birth, which he had previously provided to his employer. Sipho, in his founding papers, stated that his mother had informed him that his date of birth was November 27, 1967.

In response to the question posed by Judge Dlamini, Sipho’s legal representative, Musa Sibandze of Musa M. Sibandze Attorneys, stated that the matter before the court was not for the determination of his date of birth. Sibandze responded in the affirmative when the court enquired whether it should disregard the issue of the applicant’s dates of birth. Sipho’s father allegedly stated in a statement recorded in May 2023 that his son’s date of birth year is 1963.

However, he filed an affidavit disputing that he said Sipho was born in 1963. He said the correct date of birth was known by his son’s mother. The PS allegedly provided conflicting dates of birth on various official documents.

These include:
Eswatini Income Tax Department: February 3, 1964, Appraisal Report: Conflicting information on Marriage Certificate: January 1963, Employment Form:  January 1, 1963,  Birth Certificate (1):  November 27, 1967, Application for Employment: February 3, 1965, Birth Certificate (2): January 1, 1963 and Sworn Affidavit (mother): November 27, 1967.

These are contained in the ruling that has been issued by the CSC, which ruled that he should retire on  February 3, 2025. In this matter, the respondents raised several points of law, including the urgency of the application, the jurisdiction of the Industrial Court, failure to exhaust internal remedies, the relief sought being final and definitive, and the alteration of the applicant’s date of birth.

The chairman of the CSC, Simanga Mamba, contended that the matter was not urgent on the basis that Sipho had not set out the grounds for urgency. Principal Crown Counsel Siboniso Hlawe argued that Sipho ought to have approached the Commission for the authorisation of his date of retirement/date of birth.

Hlawe argued that Sipho approached the court seeking relief on an urgent basis, concerning the alteration of his date of birth, but had failed to demonstrate the requirements for an interdict. He argued that the urgency was self-created in that the applicant ought to have approached the CSC for the alteration of his date of birth, instead of resorting to the Industrial Court on an urgent basis.

Hlawe also argued that the Industrial Court does not have jurisdiction to entertain a matter without the dispute having been reported and dealt with in terms of Part VIII of the Industrial Relations Act. He stated that an applicant must demonstrate that his or her dispute falls within the given threshold, failing which it is improperly before the court, and the court must not take cognisance of it.

“The present application is clearly neither an application for the determination of an unresolved dispute (in terms of Rule 7 or 14) nor does it meet the requirements of an urgent application (in accordance with Rule 15) as envisaged by the Industrial Court Rules,” Hlawe argued.

“The Industrial Court does not have jurisdiction to entertain a matter without the dispute having been reported and dealt with in terms of Part VIII of the Industrial Relations Act. Therefore, this court does not have the power to hear and determine the matter in the manner approached by the applicant.”

Complaints

He noted that Sipho seeks relief and raises complaints pertaining to the alteration of his date of birth as recorded on his first appointment. According to Hlawe, in terms of Section 186 of the Constitution, the CSC is solely endowed with the capacity to provide the necessary remedy in altering the original date of birth, which is a material term of the employment contract.

He also submitted that the CSC, in the exercise of its constitutional mandate in terms of Section 186 of the Constitution, availed their local remedy to the applicant as per its decision dated January 8, 2025. Hlawe further argued that Sipho’s application could not be properly ventilated on papers as it was allegedly riddled with material disputes of facts that were foreseeable by the applicant at the launch of the proceedings.

He stated that these included a sworn statement at the Anti-Corruption Commission reflecting 1963 as his year of birth, an appraisal report reflecting January 1, 1963 as the date of birth, his application for employment which reflects February 3, 1965 and his payslips, which bear the date November 27, 1967 as his date of birth. “There are several disputed factual issues which require proof by means of evidence,” he said. The court is yet to issue a judgment in the matter.

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