Case No:
2930/2008
2957/2008
2955/2008
2927/2008
Media Neutral Citation:
[2008] SZHC 35
Judgment Date:
2 August 2008
IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE
Case No. 2930/2008, Case No. 2957/2008
Case No. 2955/2008, Case No. 2927/2008
MDUDUZI SIMELANE
MUSA MLANGENI DLAMINI
ISAAC M. SIMELANE
THULI FRANCES MDLULI Applicants
And
THE EXECUTIVE SECRETARY T.S.C 1st Respondent
THE ATTORNEY GENERAL 2nd Respondent
THE ELECTIONS AND BOUNDARIES
COMMISSION 3rd Respondent
Coram S.B. MAPHALALA - J
For 1st to 4th Applicants MR FAKUDZE, MR. MNGOMEZULU and MR. MAGAGULA
For the Respondent MR. TSABEDZE with MR M. VILAKATI (from the Attorney-General Chambers)
JUDGMENT
2nd August 2008
[1] This application by Mduduzi Simelane vs The Teaching Service Commission being Case No. 2930/2008 was consolidated with the others being 2927/2008, 2955/2008 and 2957/2008 which involve other teachers as the issues for decision are the same.
[2] In each case the Applicants have filed a Notice of Motion under a Certificate of Urgency for an order inter alia, reviewing and setting aside the decision of the 1st Respondent dated the 30th July 2008 denying the Applicant the right to participate or be nominated and/or voted for in the election process due to start today the 2nd August 2008.
[3] In prayer 4 thereof directing the 1st Respondent to grant the Applicant leave of absence as envisaged by Section 97 (2) (c) of the Constitution of Swaziland Act of 2005; and such leave of absence that would enable the Applicant to be considered for nomination and/or election as a Member of Parliament or Senate in terms of Section 96 of the Constitution of Swaziland Act of 2008. I must mention that in the other applications the Applicants pray for the above orders although the wording in the prayers differs but in essence the application of Mduduzi Simelane captures the issues for decision.
[4] In each of these cases Applicants have filed founding affidavits with pertinent annexures. The summary of the facts as gleaned from the affidavit of Mduduzi Simelane is that he is a Swazi citizen and presently resides at KaMkhweli area and is currently employed as a teacher at Mahlabatsini Primary School. His T.S.C. no. is 22182.
[5] He contends further that the Kingdom of Swaziland is presently making preparation for general elections of members of the House of Parliament or Members of Bocopho. The election process is scheduled to start today 2nd August 2008 with the nomination stage. The nomination stage commencing the elections process has been publicly announced through both electronic and print media.
[6] The Applicant avers that in terms of Section 96 of the Constitution Act 2005 a person qualifies to be appointed, elected or nominated, as the case may be, as Senator or member of the House (or Parliament) if that person:
-
is a citizen of Swaziland;
-
has attained the age of 18 years and is a registered voter;
-
is registered as a voter in the Inkhundla in which that person is a candidate.
[7] He avers that he is a Swazi citizen by birth; he is 34 years and a registered voter. He has paid his taxes. Therefore he qualifies to be appointed, nominated and/or elected as a Senator or Member of the House of Parliament. In this regard he has cited Section 97 (1) (c) of the Constitution of Swaziland Act of 2005 as follows:
“.… appointed, elected or nominated as the case may be, a Senator or Member of the House if that person is holding or acting in any public office and has not been granted leave of absence for the duration of Parliamentâ€.
[8] The Applicant together with the other Applicants mentioned above wish to be considered for nomination as a candidate(s) for elections into the House of Parliament to represent their constituencies. In this regard paragraph 12.1 to 12.3 is averred.
[9] He states further that in compliance with Section 97 (1) (c) he approached the 1st Respondent and applied for leave of above in order to qualify for nomination. He states at paragraph [14] thereof that he is advised and verily believe that the 1st Respondent only met to consider his application for leave of absence on Wednesday the 30th July 2008. The decision of the 1st Respondent, denying him the leave of absence and thus the right to participate in the election process was communicated to him at about 16.30hours on Wednesday 30th July 2008.
[10] The Applicants all contended that the decision was unreasonable and unlawful in that they were not informed how many of the teachers who have shown interest have applied for and granted leave of absence, why his particular application was turned down from the others if at all others were granted that leave by the 1st Respondent. In para 17.1 to 17.4 various averments are made on the 1st Respondent’s conduct afore-said. Further the letter is annexed hereto and marked “MDU2â€. For purposes of the record the letter is reproduced hereunder as follows:
P. O. Box 976
MBABANE
H100
30th July 2008
TSC 22182
Mduduzi Simelane
P. O. Box 33
SIPHOFANENI
Dear sir/madam
RE: APPLICATION FOR LEAVE OF ABSENCE TO PARTICIPATE IN THE FORTHCOMING ELECTIONS – YOURSELF
Pursuant to your application for leave of absence to participate in the forth coming National Elections I am directed by the Teaching Service Commission to inform you that your application has not been approved for the following reasons:-
Due to the number of teachers who have shown interest in participating in the elections it would not be possible for the Commission to provide appropriately qualified relief teachers for the duration of the Parliament.
Trust that the above will inform you accordingly.
Yours faithfully,
M.V. ZUNGU
EXECUTIVE SECRETARY
[11] The general averment by the Applicants is that they are being denied the right to exercise their constitutional right by the beaurocratic process, without taking into consideration their rights as citizens and that their right granted by the Supreme Law of the land in a democratic society will be clearly violated.
[12] The Founding affidavits of the other Applicants also mention the averments I have outlined above.
[13] The Respondents have also filed its opposition on an affidavit deposed to by one Moses Vusumuzi Zungu who is the Executive Secretary of the Teaching Service Commission.
[14] The Respondent answers to all averments in the Applicants Founding Affidavit to the general proposition that he does not see how the decision violates the provisions of the Constitution. An employer is under no obligation to grant his employee leave of absence that indeed Applicant has a right to participate in the elections. If Applicant feels that he was denied this right by the employer, he is at liberty to resign from his employment.
[15] Further, that his so-called right is limited by the provisions of the Constitution.
[16] The Respondent at para 31.1 of the Opposing Affidavit further avers that the position in Swaziland as in many Commonwealth countries is that the Civil Service (including the Teaching Service) is an apolitical service, which means that civil servants are not expected to be active in political affairs. This is reflected in General Order A 1040 (1) which states that it is of fundamental importance that political impartiality of the Public Service is maintained so that the service may enjoy the confidence of the public whom it serves. By being a civil servant the right of Applicants to participate “in the promotion of good governance and constitutional dispensation of a country†is restricted by the requirement for permission for leave of absence.
[17] The above are the general facts in opposition by the Swaziland Government. When the matter came for arguments yesterday the Respondents Counsel raised further points in limine from the Bar being the issues of urgency and that of jurisdiction. Having considered all the pros and cons of the arguments on the point about urgency I have come to the considered view that the Applicants have established urgency regard to be had to the fact that the letters from the Respondents declining them the permission were written on the 30th July 2008, and the Applicants would not have approached this court earlier.
[18] The second point in limine raised from the Bar brings to the fore another kettle of fish altogether. Counsel for the Respondent Mr. Vilakati argues that in terms of Section 151 (3) of the Constitution of Swaziland the High Court has no original or appellant jurisdiction in any matter in which the Industrial Court has exclusive jurisdiction. That in casu the relationship between the Applicants and the Respondent is that of employer and employee and therefore the first port of call would be the Industrial Court. In this regard Mr. Vilakati cited a judgment of the Industrial Court of Appeal that of The Attorney General vs Stanley Matsebula – Case No. 4/2007.
[19] On the other hand it was argued for the Applicants that this is not so but Mr. Magagula for one of the Applicants conceded the point but argued that an Applicant is entitled to make an election as to which court he wants to approach.
[20] I have considered the arguments of the parties in this regard and I have come to the considered view that I am bound by the dicta in Stanley Matsebula (supra) that the Industrial Court is the first port of call in such matters. In this regard I am persuaded by the arguments advanced by Mr. Vilakati in this regard. The Industrial Court does have jurisdiction in such matters.
[21] In the result, for the afore-going reasons the point in limine on jurisdiction is upheld with costs.
S.B. MAPHALALA
PRINCIPAL JUDGE