MBABANE – The High Court has found TSC Chairman Amos Mahlalela to be in contempt of court.
The contempt is reportedly as a result of his failure to implement a court judgment in the case involving SNAT President Mbongwa Dlamini and the Teaching Service Commission (TSC), among other respondents.
Judge Zonke Magagula also ordered Mahlalela to purge his contempt within seven days, failing which, he would have to appear in court in person to show cause why he should not be sent to jail.
The case began in the Industrial Court, which had ruled in favour of Dlamini. The Industrial Court had declared the TSC’s verbal decision of August 23, 2023 and subsequent dismissal letter, to be null and void and therefore set aside.
The TSC then sought a review of this decision in the High Court, but that application was dismissed. According to yesterday’s judgment by Judge Zonke Magagula, following the High Court’s ruling, Dlamini attempted to return to his duties at Moyeni High School, but was prevented from doing so by the head teacher, who claimed to lack an official instrument authorising his return.
This led Dlamini to launch a contempt of court application, citing the TSC chairman, the commission itself and other officials as respondents. The respondents, represented by the Attorney General’s Office, challenged the application on several points of law.
A key argument was that the High Court lacked the jurisdiction to enforce an order that had originated in the Industrial Court. They also contended that the Industrial Court’s judgement had not explicitly ordered Dlamini’s reinstatement, and that an appeal was pending in the Supreme Court.
In his judgement, Judge Magagula first clarified the matter of jurisdiction, stating that because the High Court had heard and finalised the review application, it was the appropriate forum to enforce the standing order. He distinguished the case from the one cited by the respondents, noting that the High Court had considered the original judgement in its entirety.
The judge also provided an interpretation of the phrase ‘null and void’. Citing a South African Constitutional Court case, the judge affirmed that an invalid dismissal is a nullity. He added: “In the eyes of the law, an employee whose dismissal is invalid, has never been dismissed, that means the employee remains in his or her position in the employ of the employer.”
This established that Dlamini’s reinstatement was not a separate order that needed to be issued, but rather a ‘matter of course’ flowing directly from the invalidation of his dismissal. The argument of a pending appeal was also dismissed, as no leave to appeal had been granted.
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