MBABANE – The Minister for Justice and Constitutional Affairs, Prince Simelane, has admitted that Acting ACC Commissioner, Maphevu Mkhatshwa, does not meet the requirements of being appointed as a substantive commissioner.
However, the minister has said, Mkhatshwa does not need to be qualified for appointment as a judge of the High Court in order for him to be appointed as the acting commissioner.
The prince made these submissions in his responding affidavit following an application that was filed in August this year by Assistant Investigator of the institution, Bonginkhosi Dlamini.
In his application, Dlamini challenged the extension of a contract for Mkhatshwa, arguing that for him to lead the Anti-Corruption Commission (ACC), he must have served as a judge of the High Court.
Dlamini wants the court to issue an order that will be a declaration that the continued occupation of office by Mkhatshwa, who has been cited as the first respondent in the matter, is inconsistent with Section 5 (1) of the Prevention of Corruption Act No.3 of 2006.
The claims by Dlamini remain allegations as the matter is yet to be heard before the court.
In his responding affidavit, the minister said he is only answering to the allegations that relate to the appointment of Mkhatshwa as Acting Commissioner of the ACC.
The minister submitted that the initial acting tenure expired on June 19, 2024, as it was for a period not exceeding six months.
“I admit that I extended the first respondent’s tenure as acting commissioner. I deny that the extension of tenure was unlawful,” reads part of the responding affidavit.
The minister said the Prevention of Corruption Act, 2006, empowers him to nominate a deputy commissioner to act as commissioner where the office of that position is vacant.
He said Mkhatshwa is a substantive Deputy Commissioner and that in June 2024, the position of commissioner was (and still is) vacant.
“In these circumstances, I was entitled by the Act to nominate the first respondent to act as acting commissioner,” submitted the minister.
Elaborating, the minister said Mkhatshwa’s initial appointment expired in June 2024 and that the Act does not prohibit the duration of the acting appointment.
In addition, the prince said there is no limitation to the duration of the acting appointment, for as long as there is no substantive commissioner.
Also, the minister said the position of the acting commissioner is regulated by the Act.
Establishment Circular No.4, according to the minister, or any other establishment circular, does not supersede the provision of the Act.
“I reiterate that the applicant’s interpretation of the interplay between the Act and Establishment Circulars is erroneous. Full legal instruments on this point will be advanced at the hearing,” submitted the minister.
He also said: “I admit that the first respondent does not meet the requirements of being appointed as a substantive commissioner. However, he does not have to be qualified for appointment as a judge of the High Court for him to be appointed as an acting commissioner. His substantive position as deputy commissioner qualifies him for appointment as acting commissioner. The empowering legislation imposes no time limit on the duration of an acting appointment,” the minister said in his affidavit.
The minister said the Establishment Circulars are not regulations and are not legislation.
“They do not curtail the express provisions of the legislation. The empowering legislation does not limit the tenure of an acting commissioner. The first respondent has been lawfully in office as acting commissioner from June 20, 2024, to date. All actions by him after June 20 are lawful,” said the minister.
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I suspended investigator lawfully – Mkhatshwa
MBABANE – In his answering affidavit, Maphevu Mkhatshwa admitted that he suspended Dlamini in line with Section 58 of the Public Service Act of 2018.
The acting commissioner denied that the Civil Service Commission, (hereinafter referred to as the CSC) is the appointing authority for officers of the commission.
“It is settled law in our jurisdiction that the Civil Service Commission does not appoint officers of the commission. The commission is independent of the CSC,” submitted Mkhatshwa.
Also, he denied that he usurped the powers of the CSC.
He submitted that the applicant was suspended because he had been charged with criminal offences allegedly committed in violation of the Prevention of Corruption Act, 2006.
*Full article available in our publication.
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