Mbabane: The Industrial Court has dismissed the SUFIAW’s applicants’ case where members of the NEC, Sikelela Dlamini and Mafulela Ndzinisa were to appear before the union’s disciplinary committee, a directive they did not honor.
Presiding officers in the matter, AJ Magagula, Miss Dlamini and Mr Mango observed that despite that the application was brought to court under the certificate of urgency, according to law it had to be advanced by an authority structure like the National Executive Committee (NEC) of SUFIAW.
Other than the lack of urgency the industrial court cited lack of Locus Standi, which means the applicants didn’t have the authority to bring the matter to court
The AJ also cited non joinder, which in legal terms is the joining of two or more legal issues together. Procedurally, a non-joinder allows multiple issues to be heard in one hearing or trial and is done when the issues or parties involved overlap sufficiently to make the process more efficient or more-fair.
The AJ ruled that the applicants have an option to start the process all over by bringing the matter to the industrial court under the certificate of urgency with an authority structure.
“I uphold that the applicants’ application be dismissed with no order as to costs,” averred the AJ.
On January 29 the duo was served with notification of attendance of disciplinary hearing for charges ranging from bringing the organization’s name into disrepute, in that on or about the month of May 2020 they caused to be written a letter to the Board Chairman of the Eswatini Insurance Corporation, wherein they made unfounded allegations about the Human Resource Manager, which were deemed not only unfounded but defamatory. The letter issued that the allegations were made to embarrass the other party and since they were never addressed at any platform between the union and ESRIC, they caused a strain to the relationship.
Another charged according to the notification was that of ‘gross insolence and/or publishing a purely private matter.
Certificate of Urgency
In his submissions the applicants’ counsel, Mhlengi Mabuza of T.R. Maseko Attorneys stated that after reading the Notice of Application and the Founding Affidavit the matter was of sufficient urgency to warrant the industrial court to dispense with its rules and hear the matter as one of urgency. The counsel averred that the 1st Respondent had preferred charges against Sikelela, who is the Secretary General of SUFIAW without first seeking the mandate of the National Executive Committee as per dictates of the constitution of the organization. He maintained that further, the conduct of the president of SUFIAW, who is the 1st Respondent in the matter had the potential to destroy the proper functioning of SUFIAW, whose constitution is the cornerstone of same. It’s transgression by the president would result in the death of the union, averred the counsel.
The counsel further averred that the actions of the president are inconsistent with the constitution of SUFIAW, to the extent that the president had assumed the role of an ‘Emperor’ to the detriment of the organization. “The president of SUFIAW has usurped the powers of the National Executive Committee of the organization as it is the only structure that must deal with matters of discipline within the organization,” averred the counsel. “The pending disciplinary proceedings against the employee are improperly constituted and will essence prejudice the affected employee, in that the employee may be removed, or fired from her position as proper procedure was not followed,” maintained the counsel.
Further on the counsel brought before the court that should the unlawful disciplinary proceedings be allowed to continue, such act will render the NEC useless and further lead to the demise of the organization. He concluded that the applicants have no other alternative relief available to them in due course other than to approach the industrial court in that they had written two letters to the president of SUFIAW seeking that an urgent meeting with the NEC be convened to deal with the employee and on both occasions there was no response.