THE HIGH COURT OF SWAZILAND
CASE NO. 3130/2009
IN THE MATTER BETWEEN:
Q.M. MABUZA -J
FOR APPLICANTS: ADVOCATE LUCAS MAZIYA
INSTRUCTED BY MR. T.L. DLAMINI
OF T.L. DLAMINI AND ASSOCIATES
RESPONDENTS: MR. S. KHUMALO
This application seeks an order in the following terms:
Dispensing with the forms of
service and the time limits provided for by the rules of this
honourable court and hearing this matter urgently.
An order interdicting and
restraining the first and second Respondents from employing new
Directing the second
Respondent to renew the Applicants' Identity Cards for the period
July 2009 to 31st
Costs of suit as against all
the Respondents jointly and severally one paying the other to be
Granting such further and/or
The application is opposed by the Respondents. At the hearing hereof
it was agreed that the points in limine would be argued
simultaneously with the merits as they were inseparable.
The Applicants are deputy sheriffs for different districts in
Swaziland. The first Respondent is the Judicial Service Commission,
the second Respondent is the Sheriff of Swaziland,
the third Respondent is the Swaziland
Government and the fourth Respondent is the Attorney General who in
effect is the representative of all the Respondents.
 The 1st
Applicant was appointed Deputy
Sheriff on or about the 28th
June 2005 for the Hhohho Region
by the then Sheriff of Swaziland Mr. Shiyumhlaba Dlamini. The 2nd
Applicants received similar
notices of appointment with differences in dates of appointment. I
hereinunder set out the contents of the letter of appointment in
respect of the 1st
RE: YOUR APPLICATION FOR
APPOINTMENT AS DEPUTY SHERIFF
Your letter of 2nd
June 2005 refers.
am pleased to inform you that I have appointed you Deputy Sheriff for
the Hhohho Region in terms of Section 4 (1) of the Sheriffs Act of
1902 and that you shall so act in that capacity until further notice.
Your identity card shall be
issued to you upon the production of a certificate of professional
indemnity issued by a lawfully registered insurance company.
I take this opportunity to
congratulate you on your appointment and to urge you to always act
within the confines of the law and the High Court Rules in the
execution of your duties as Deputy Sheriff.
SHIYUMHLABA N. DLAMINI
SHERIFF OF SWAZILAND"
Applicants contend that in terms of their letters of appointment,
they were appointed for an indefinite period. The Deputy Sheriffs are
given identity cards which are renewed every year. It is contended
that these identity cards which are renewed every year are for
purposes of the public being able to identify and confirm that the
Applicants are indeed Deputy Sheriffs.
submitted by the Applicants that their identity cards are as of the
August 2009, the date on which
the applicant deposed to his affidavit, the identity cards were due
for renewal and the 2nd
Respondent refused to have them
The second denied that the Applicants had similar notices of
appointment as the 1st
Applicant. She submitted that
some of the Applicants had fixed contracts of twelve months. She
denied that the other nine Applicants' contracts were indefinite. In
their replying affidavit the Applicants maintained that their
contracts were open-ended and that they were appointed "until
further notice". They replied that the second Respondent had
appointed five Deputy Sheriffs during her tenure and it is these five
whose tenure was twelve months.
 A close
scrutiny of the letter of appointment of the 1st
that indeed the 1st
Applicant was appointed "until
my view this open ended contract is illegal because is not supported
by the Sheriffs Act. Section 4 and 5 of the Sheriffs Act 1902,
provides as follows:
"Duties of Sheriff and
(1) Where the Public Service Commission appoints a sheriff he shall,
by himself, or
his deputies, appointed by him and duly authorised under his hand and
seal, and for whom he shall be responsible during his continuance in
such office ..."
Names of deputies to be
5. The Sheriff shall, upon
the appointment of
a deputy, transmit to the registrar of the High Court his name and
place of abode, stating the district within which he is to act for
(My emphasis and underlining)
It is therefore clear to me that
any appointment in terms of the aforesaid Act shall be permanent. Any
variation by the Sheriff is illegal.
identity cards themselves are not provided for in the Sheriffs Act,
1902. They do not have any statutory basis but merely serve to
identify the Deputy Sheriffs when carrying out their work. Whether
the second Respondent renews them or not is immaterial. The affected
Deputy Sheriff can still carry out their work unhindered by not
having them. Having them is a salutary practice but the Applicants
cannot in my view be held to ransom by the withholding their identity
cards. The cards should not even be such an issue that they ground a
cause of action. In fact I believe that they were introduced during
Judge Annandale's term of office as Registrar of the High Court by
mutual understanding of the then Deputy Sheriffs. They were not a
sole initiative of the Sheriffs office. They were never linked and
are not linked to Deputy-Sheriffs' appointments.
second Respondent has submitted that there are presently numerous
complaints and/or allegations of misconduct against the Applicants
hence their cards and or contracts could not be renewed. She further
states that the Applicants were advised of the complaints against
them and responses were sought from them. However, most of the
responses provided were unsatisfactory hence she could not renew
their contracts and or cards. In support of her response, the second
Respondent filed a bundled book of complaints against the Applicants.
Applicants in their reply have refuted that the complaints in the
bundle relate to them nor that their responses if any were
unsatisfactory. They state and indeed this is correct that the bundle
contains complaints of the following persons who are not part of the
applicants; namely Pat Jele, Sandile Myeni, Mandla Dlamini, Lindiwe
Matsebula, Rudolf Diamond, Bheki Mavuso, Similo Dlamini and Sabela
Maziya. The Applicants further state that the bundle does not have
any complaints against Ntokozo Mabuza and Melusi Qwabe; the second
and fifth Applicants respectively.
It is the Applicant's further response that the said bundle is said
to consist of complaints yet this is not the case. According to the
first Applicant in the bundle is a letter he wrote to the second
Respondent where he sought her assistance in the recovery of his fees
for work done as a Deputy Sheriff from certain Attorneys. He is
surprised that same is listed as a complaint. He further states there
is a letter addressed to Attorneys Sibusiso Shongwe which is listed
as a complaint against Sandile Dlamini the fourth Applicant. There is
also a letter from the Swaziland Building Society addressed to the
second Respondent complaining about delays in the signing of court
process. This is also said to be a complaint. In the said bundle
there are similar letters of the above nature which are said to be
complaints yet they are not.
first Applicant has further stated that the other Applicants are said
to have complaints outstanding against them yet the said complaints
were answered. The second Respondent never advised them that their
responses were unsatisfactory. The said bundle does not contain
letters that the Applicants answers were unsatisfactory. The second
Respondent renewed the Applicants identity cards for June 2008 to
July 2009 because the answers to the complaints were satisfactory.
A complaint for 2009 is that of
Sakhile Ndzimandze who filed a response to same which is not in the
A copy of Sakhile Ndzimandze's (6th
Applicant) response is annexed
to the replying affidavit. It is too long and detailed to print.
Suffice it to say that there was no response thereto by the second
Respondent as to whether or not the explanation given by the 6th
Applicant therein was
satisfactory to the Second Respondent.
Applicants had also challenged the authority of the Judicial Service
Commission the first Respondent who had caused an advertisement to be
published in one of the daily newspapers inviting persons interested
in being appointed as Deputy Sheriffs to submit their applications.
The Second Respondent upon the advice of the Attorney General has
prudently elected to cancel the interviews called by the 1st
Respondents and has indicated
that she will call fresh interviews herself; as the 1st
Respondent has no legal
authority to appoint Deputy Sheriffs.
contents of the advertisement are worrisome to the Applicants and in
order to deal effectively with their concerns I set them out
hereunder. Even if the 2nd
reissues the advertisement herself the Applicants believe that its
contents will not change.
"People interested in being
appointed as Deputy Sheriffs are invited to submit their applications
to the Judicial Service commission Secretary, P.O. Box 19, Mbabane,
for appointment by the Sheriff of Swaziland after due interview by
the Judicial Service Commission.
Candidates should be at least 40
years old or above and should have the following qualifications and
Bachelor of Laws Degree (LLB)
Bachelor of Arts in Law (BA Law)
Integrity, responsibility and
good judgement, demonstrated by personal, work and criminal
Good conflict management skills.
Ability to understand, interpret
and apply State and local laws and departmental policies; react
quickly and calmly in emergency situations and adopt an effective
course of action.
Faithful performance of their
No criminal record.
Appointment will be for a period
of six (6) months only and shall be renewable once with the
discretion of the Judicial Service Commission.
Deputy Sheriffs will not be
allowed to appoint their own
Assistants without the approval
of the Sheriff..."
The Applicants contend that the contents of the advertisement has set
conditions that are calculated to exclude them. Some of the
conditions stipulate that an Applicant must have a Bachelor of Laws
or Bachelor of Arts (Law) degree and be above the age of 40.
Applicants do not have the aforestated degrees and some are below the
age of 40. Their ages are given as follows:
Sipho Italy Nyathi - 45 years
Ntokozo Mabuza - 47 years
Menzi Dlamini - 33 years
Sandile Dlamini 37 years
Sakhile Ndzimandze - 26 years
Bhekithemba Dlamini - 27 years
Wiseman Dlamini - 41 years
Melusi Qwabe - 41 years
Martin Akker - 45 years
Swane Joseph Dlamini - 39 years
The Applicants contend that even though they do not have the said
degrees they have attended numerous workshops for Deputy Sheriffs.
When they were appointed the condition they had to meet was that they
had to be conversant with the rules of the High court as amended.
Applicants further contend that they have not been given notice to
the effect that their appointments have been revoked by the 2nd
Respondent. Neither were they
notified that their services were not satisfactory. In fact they
state that they were taken by surprise when they saw the
advertisement as they legitimately expected their cards to be
renewed. They further submit that the revocation of their appointment
has been done in complete violation of the rules of natural justice
as they were not given a hearing. They submit that in terms of the
Constitution they are entitled to reasons for the decision taken by
Respondent for not renewing
their identity cards; instead the 2nd
Respondent has simply kept
second Respondent denies that calling for applications and or
appointing more Deputy Sheriffs has the effect of terminating the
Applicants' appointments. She verily believes that she has the power
to appoint as many Deputy Sheriffs as it is necessary. This in my
view is a salutary response by the second Respondent which can be
construed as her not having closed the doors finally to the
Applicants. However, she should also consider whether it is
economically viable to have a large number of Deputy-Sheriffs.
Although she has stated that she never made any promises to the
Applicants she encouragingly denies that the conditions set in the
advertisement are calculated to exclude the Applicants. She states
that the conditions set out in the advertisement are an
administrative measure aimed at improving the office of the Sheriff.
My view is that the Sheriffs Act does not state that Deputy Sheriffs
should hold any degrees.
Respondents raised a point in limine to the effect that this Court
has no jurisdiction to entertain this application as the dispute had
arisen out of the employer and employee relationship. It was
contended that section 8 (1) of the Industrial Relations Act no. 1 of
2000 gives exclusive jurisdiction to the Industrial Court; it states
"the court shall,
subject to section 17 and 65 hear, determine and grant any
appropriate relief in respect of an application, claim or complain of
an infringement of any of the provisions of this (Act) the court
shall, subject to section 17 and 65 hear, determine and grant any
appropriate relief in respect of an application, claim, or complain
an infringement of any of the provision of this (Act), the Employment
Act, the Workman's Compensation Act, or any other legislation which
extends jurisdiction to the court or in respect of any matter which
may arise at common law between employer and employee in the course
of employment or between an employee's association, a trade union, a
staff association and a member thereof."
To fortify his argument, Mr. Khumalo has cited the case of Delisile
Simelane v The Teaching Service Commission and Another: Supreme Court
of Appeal case no. 22 of 2006 (unreported) wherein Zietsman JA said
in respect of any matter which may arise at common law between an
employer and employee" stand alone in the section and are not
governed or qualified by any other words or phrases in this section.
The section provides, in specific terms, that the industrial court
shall have exclusive jurisdiction to hear, determine and grant
appropriate relief in respect of any matter which may arise at common
law between an employer and employee in the course of employment.
The learned judge goes on to
say "In my opinion the wording of section 8
(1) of the 2000 Act can be interpreted in one
way only and that is that the Industrial Court now has exclusive
jurisdiction in matters arising at Common Law between employers and
employees in the course of employment. The fact that special
procedures for the determination of disputes have to be followed
before that matter comes before the Industrial Court does not alter
The Respondents have further cited section 151 (1) and (3) of the
Constitution which provides as follows:
"151 (1) …
151 (3) notwithstanding the
provisions of (1), the High Court.
Has no original appellate jurisdiction in any matter in which the
Industrial Court has exclusive jurisdiction."
The case of Swaziland
Brewers Ltd and Sicelo Mabuza v Constantine Ginindza,
Supreme Court of Appeal case no.
33 of 2006 (unreported) wherein Ramodibedi JA stated:
"In my view section 151
(3) does two things in so far as is relevant to this case:-
(1) In plain and unambiguous
language, the section ousts the jurisdiction of the High Court in any
matter in which the Industrial Court has exclusive jurisdiction. To
that extent, therefore, it stands to reason that there can be no
question of the High court and the Industrial Court enjoying
(2) In terms of the section
the inherent original jurisdiction ordinarily vested in the High
Court does not detract from the exclusive jurisdiction of the
Industrial court in dealing with matters provided for under the act.
This brings me to section 19 (5) of the Act. It reads as follows "A
decision or order of the Court or arbitrator shall, at the request of
any interested party, be subject to review by the High Court on
grounds permissible at common Law. The word "Court" is
defined in section 2 of the Act to mean the Industrial Court.
...I'm satisfied that the
intention of the legislature has to confer exclusive original
jurisdiction on the Industrial Court in matters provided for under
the Act. Put differently, all such matters must go to the Industrial
Mr. Maziya's response thereto is that the relationship of the Sheriff
and the Deputy Sheriffs is not one of master and servant as envisaged
by the common law. He contends that it is a notorious fact for
example that the Deputy Sheriffs do not get any remuneration from the
Sheriff. Instead Deputy Sheriffs charge fees regulated by a tariff
which is prepared by the Chief Justice in terms of the Sheriffs Act
of 1902. Such fees are paid by the litigant whose
attorney has enlisted the services of that particular Deputy Sheriff.
The Sheriff has nothing to do with it.
Maziya has fortified his submission by citing a work by Sonia Bendix:
Industrial Relations in South Africa 2nd
edition 1992 at
page 438 which states:
"... Once a contract of
employment has been entered into, whether in writing, verbally or
tacitly, it is accepted that the parties have by implication agreed
to certain rights and duties at common law. The common law duties of
the employer include the following:
pay the employee
To provide safe and healthy
To provide work for the
Not to make the employee do
work junior to the status for which he was employed.
Not to contract the
employee's services to another employer without the employee's
It is understood that the
employee will in return:
his work faithfully and diligently,
reasonable orders given to him in the normal course of his
deal dishonestly with the property of the employer,
compete, in his private capacity, with the business of
Mr. Maziya concludes his submission by stating that all the
characteristics stipulated by Sonia Bendix hereinabove are lacking in
the relationship between a Sheriff and the Deputy Sheriffs.
Consequently he says the three Supreme Court of Appeal cases cited by
the Respondents are distinguishable on the issue of jurisdiction.
 I agree
with Mr. Maziya's exposition and conclusion of the law. I further
agree that there is a relationship between the Sheriff and the
Deputies as does Mr. Khumalo. The point of departure with Mr. Khumalo
and myself is that I agree with Mr. Maziya that such a relationship
is not a contract of employment as envisaged in the Industrial
Relations Act, 2000.
being the case this point in limine seeking to oust my jurisdiction
fails and is dismissed.
Mr. Khumalo advanced another interesting argument namely; that if the
court found that the relationship between the Sheriff and the
Deputies is not a contractual one as envisaged by the Industrial
Relations Act; then the court should find that it is one of agency.
That being so the Principal being the second Respondent can terminate
the authority of the agents being the Respondents. Mr. Khumalo's
argument was that the Principal
can terminate even though it appears irrevocable if there are
circumstances that make it so; further stating that the Applicants'
appointment was not indefinite. In support of this argument, he cited
the case of Pretorious v Erasmus 1975 (2) SA 765.
Interesting though the argument is, I hardly think that it applies in
this case. For example the Sheriff is not personably liable
financially in the relationship that exists between the Deputy
Sheriffs and the litigating party. If there is financial
mal-administration by a Deputy Sheriff the Sheriff is hardly called
upon to make restoration as would a Principal in a Principal and
agent relationship. Equally the agent (Applicants) cannot enter into
a contract that binds the Sheriff.
this argument must also fail as it does. The Respondents raised a
further point in limine being that should this court issue an order
directing the second Respondent to renew the applicants' identity
cards for the period 31st
July 2009 to 31st
July 2010, it would be usurping
the second Respondents statutory powers as the court has no power to
do. The argument by the Respondents being that the
appointment and overall administration of Deputy Sheriffs is vested
with the second Respondent who derives such power from the Sheriffs
Act of 1902.
support of the above contention the Respondents cite the case of
Muziwethu Simelane and Others v The Ministry of Housing and Urban
Development and Another, High Court case no. 2390 of 2007
(unreported) wherein the Applicants applied for an order directing
the Respondents to forthwith issue the applicants with written
permission approval in terms of section 10 (16) of the Urban
Government Act 1969. It was held that this Court had no jurisdiction
to issue such an order for it would be usurping the Principal
Secretary's statutory-powers. This decision say the Respondent's was
confirmed by the Supreme Court of Appeal.
Applicants response to the argument above is that there is no section
in the Sheriffs Act that talks about identity cards. The introduction
of identity cards was an administrative measure aimed at monitoring
the performance of each particular Deputy Sheriff who had already
been appointed and executing her/his duties as such. It has nothing
to do with one's appointment as Deputy Sheriff.
The Applicant's further argument is that the Respondents have
approached the issue of identity cards from a wrong premise in that
they confuse it with a contract. "Contract" is a legal term
with legal characteristics as shown by Sonia Bendix in her textbook
cited above. They further contend that the case of Muziwethu Simelane
and Others v The Minister of Housing and Urban Development and
Another cited by the Respondents above, is distinguishable in that
the public officer (i.e. the Principal Secretary) was being sought to
be compelled to exercise his discretion in a particular way in the
performance of a function stipulated by a section in an Act of
Parliament. In casu the court is not being implored to order the
second Respondent to appoint the Applicants as Deputy Sheriffs; they
were appointed a long time ago even before the second Respondent was
herself appointed. Herein she is being sought to perform a function
which does not emanate from a statute but is necessary in the
execution of the duties of a Deputy Sheriff. I am persuaded by Mr.
Maziya's argument and I agree with him that in directing the second
Respondent to renew their identity cards I would not be usurping the
second Respondent's powers.
It is a notorious fact that in the past Deputy Sheriffs have held
these positions for life. Without seeming to give evidence and having
worked as an attorney for many years Deputy Sheriffs such as Mr. Long
(Hhohho) Mr. Dyson (Lubombo) Mr. Kelly (Manzini) and Mr. Rijkenberg
(Shiselweni) worked for life as such. The first three died at a ripe
old age while still Deputy Sheriffs. In some cases after their deaths
a wife and or son carried on the work. Mr. Douglas Littler's
appointment as a Deputy Sheriff has never been terminated.
Furthermore, Mr. Maziya has correctly pointed out that there are some
cases whereby it would be futile to direct a public officer to merely
exercise a discretion invested in him or her. For example in a case
where it is clear that the officer had already made up his/her mind
that he was refusing to perform his/her duty or as in the case of
Cineland (Pty) Ltd v Licensing Officer, Hhohho District and Others
1977 - 78 S.L.R. 106. In that case Nathan CJ, had no option but to
compel the licensing officer to grant the application for a
cinematograph film exhibitor's licence since directing him to
exercise his discretion in the application would have been a futile
exercise given that he had already made up his mind that he was
refusing the application on the facts.
Mr. Maziya drew my attention to certain issues that made him believe
that the second Respondent had clearly made up her mind and was not
prepared to work with the Applicants. I do not wish to delve much
with the criticisms levelled at the second Respondent as these are
merely deal with the issue that Mr. Khumalo advanced that the Second
Respondent is not prepared to renew their cards because of the
numerous complaints against the Applicants.
 On the
face of it this reason is based on a genuine concern. It is the way
the Second Respondent handled the issue of the complaints against the
Applicants that raise issues of unfairness, unreasonableness and
arbitrariness. Mr. Khumalo has argued that as the administrator; if
the second Respondent feels that in exercising her powers it will no
longer be in the interests of justice to renew the Applicants
contracts, she has a discretion to do so.
important decision such as this one which impacts on the ability of
the Applicants to make a living for themselves and their dependants
should not be lightly made on how the second Respondent feels; but
should be made very carefully as the loss of employment affects the
livelihood of many people together with their dependents.
Maziya has addressed the issue of the complaints against the
complainants most adequately. The identity cards of the 2nd
Applicants have not been renewed
and there are no complaints against them. There is substance in Mr.
Maziya's submission that the complaints should have been properly
investigated and adequately addressed before the decision not to
renew the cards was taken. There is no evidence before this Court
that this was done. In an ordinary workplace environment these are
what are termed fair labour practices. At the very least the second
Respondent should have applied these instead of unilaterally deciding
not to renew the identity cards
final complaints by the Applicants is that the second Respondent did
not afford them an opportunity to defend themselves before the
decision not to renew their cards was taken. It is the Applicants
submission that the failure by the second Respondent to afford them a
hearing violated their constitutional rights in particular section 21
and 33 of the Constitution as well as the rules of natural justice.
The latter as espoused in Swaziland Federation of Trade
Unions v The President of the Industrial Court and Another
(appeal case no. 11/97)
 In his
submissions Mr. Khumalo stated that the second Respondent did call
the Applicants and gave them a proper hearing. He was not able to
give the Court real evidence about the details of these hearings. He
did not give the Court records of proceedings of these hearings.
Consequently, I find that section 33 (1) and (2) of the Constitution
has bee violated: it provides as follows:
"33. (1) A person
appearing before any administrative
authority has a right to be
heard and to be treated justly and fairly in accordance with the
requirements imposed by law including the requirements of fundamental
justice or fairness and has a right to apply to a court of law in
respect of any decision taken against that person with which that
person is aggrieved.
(2) A person appearing before
any administrative authority has a right to be given reasons in
writing for the decision of that authority."
It is clear to the Court that in order for both the Sheriff and the
Deputies to carry out their mandates effectively the Sheriff Act of
1902 has to be replaced as it is outdated. Work relations
nowadays rely on a legalistic framework which provides the relevant
policies and procedures for the enforcement of rights and duties.
This framework should provide as a minimum policies for the
engagement and termination of the services of Deputy-Sheriffs, codes
of conduct, discipline procedures with graduated sanctions and
dispute resolution mechanisms.
Because of the absence of the framework referred to above, at the
very basic level, the rules of natural justice must be applied in all
instances where there are complaints. At a Constitutional level the
tenets of the rule of law should be observed by all public
functionaries and abuse of power avoided at all costs. Any powers of
the second Respondent that are found in the Sheriffs Act are now
subject to the tenets of the rule of law set out in the Constitution.
In fact section 5 of the Sheriffs Act envisages a situation where the
Sheriff is a separate person from the Registrar. It states that the
Sheriff shall upon appointment of a Deputy transmit to the Registrar
of the High Court the Deputy's name and place of abode and the
district within which he is to act for him.
The Sheriffs Act is not even gender sensitive. It refers to a Sheriff
being a male person and not a woman; which makes it most imperative
that it should be done away with as soon as possible.
 I have already expressed my
views concerning the identity cards as a non issue but since the
matter is at the core of the Applicants' concern I find for the
The application is granted with
The Respondents are ordered to
pay costs of suit jointly and severally one paying the other to be
absolved; together with the certified costs of Counsel in terms of
Further and alternative relief.