Mbabane – The Industrial Court of Appeal has dismissed Dennis Khumalo’s bid to have the appointment of Luke Lushaba as Chief Fire Officer declared unlawful, ruling that the dispute could not be decided as a question of law alone.
Khumalo had approached the court challenging Lushaba’s appointment to the position, arguing that it was invalid because Lushaba had already reached the mandatory retirement age for civil servants when he was appointed on a two-year contract.
However, the appeal court found that the matter contained several disputed facts, including questions surrounding the candidates’ qualifications, experience and whether the correct recruitment procedures were followed.
In a judgment delivered on July 29, 2026, a three-member bench comprising Industrial Court of Appeal President Sibusiso Nsibande, Justice Nkosinathi Nkonyane and Justice Andrew Lukhele upheld the earlier decision of the Industrial Court, which had dismissed Khumalo’s application.
The court held that Khumalo’s application could not be brought directly before the Industrial Court as a matter involving only a legal question because it required evidence to determine the disputed issues.
Khumalo had argued that Lushaba’s appointment contravened provisions of the Public Service Act and the National Fire Act, claiming that the position should have been filled through a proper recruitment process involving advertising, applications and interviews.
He further alleged that he possessed the required qualifications and experience for the position and questioned how Lushaba was appointed after reaching the civil service retirement age.
The respondents opposed the challenge, arguing that the matter involved factual disputes and could not be decided on affidavit evidence alone.
The appeal court agreed, stating that determining whether Lushaba was qualified, whether Khumalo was a more suitable candidate and whether the appointment process complied with the law would require the court to consider evidence.
The judges noted that the Industrial Court’s jurisdiction in such matters is subject to the procedures provided for under the Industrial Relations Act, especially where disputes of fact exist.
The court also considered Khumalo’s argument that the Industrial Court should have called for oral evidence to resolve the disputed issues, but found no reason to interfere with the lower court’s decision.
“The appeal is dismissed,” the court ruled, ordering that each party should pay its own costs.
The matter arose after Lushaba’s appointment as Chief Fire Officer was challenged, with Khumalo seeking an order setting aside the appointment and directing that the recruitment process be conducted afresh in line with the law.
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