MBABANE – The Industrial Court of Appeal has dismissed an appeal by NAPSAWU challenging the appointment of Chief Fire Officer Luke Lushaba.
The court held that the National Public Service and Allied Workers Union (NAPSAWU) failed to establish legal standing and had acquiesced to Lushaba’s appointment to the position after his retirement. Acquiescence means accepting or going along with a situation by your conduct, even if you do not say so directly.
NAPSAWU had approached the court on behalf of firefighters and the judgment was delivered by Judge President Sifiso Nsibande, sitting with Judge Nkosinathi Nkonyane and Judge Andreas Lukhele.
The appeal arose from proceedings instituted in the Industrial Court in March 2025. NAPSAWU had sought an order declaring the appointment of Lushaba irregular or ultra vires. In the alternative, the union sought a declaration that Lushaba, having reached retirement age, was no longer a public officer and was ineligible for appointment to public office under Section 27 of the Public Service Act of 2018.
The respondents (the executive secretary of the Civil Service Commission (CSC), Lushaba and attorney general) opposed the application and raised preliminary points. These included whether the union had legal standing to bring the proceedings, the relevance of Section 27 of the Public Service Act, and whether the union had acquiesced to the appointment by failing to challenge Lushaba’s earlier fixed-term appointment after retirement age. The respondents were represented by Crown Counsel Siboniso Hlawe.
The Industrial Court upheld the preliminary points on legal standing and acquiescence. NAPSAWU then appealed against those findings.
Before the appeal court, the union abandoned its challenge relating to Section 27 of the Public Service Act after conceding that the Industrial Court had not determined that issue because it went to the merits of the matter.
The appeal, therefore, proceeded only on the questions of legal standing and acquiescence.
The union argued that it had authority to litigate on behalf of its members under its recognition agreement with government. It further relied on earlier Industrial Court authority which recognised that trade unions may institute proceedings on behalf of members.
NAPSAWU submitted that the matter had been clearly cited as being brought on behalf of firefighters who are its members and who allegedly had a direct and substantial interest in the appointment.
The respondents did not dispute that the union had legal capacity to sue or to represent members in appropriate circumstances. However, they argued that the union had failed to establish a direct and substantial legal interest in the specific relief sought.
They submitted that the appointment of a chief fire officer did not infringe any contractual or statutory right belonging to the union. They further argued that the union had failed to identify any member who had personally been prejudiced or directly affected by the appointment.
According to the respondents, the union relied only on its general mandate as a representative organisation and failed to establish the necessary nexus between its members and the legal right forming the subject matter of the litigation.
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