IN THE HIGH COURT OF ESWATINI
JUDGMENT
Case No. 162/18
In the matter between:
GIDEON M. DLAMINI APPLICANT
AND
THE MINISTER FOR FINANCE 1st RESPONDENT
THE GOVERNMENT OF ESWATINI 2nd RESPONDENT
THE ATTORNEY GENERAL 3rd RESPONDENT
Neutral citation: Gideon M. Dlamini and The Minister of Finance & 2 Others [162/18] [2018] SZHC 101 (29th May, 2018)
Coram: FAKUDZE, J
Heard: 3rd May, 2018
Delivered: 29th May, 2018
Summary: Civil Procedure – Applicant seeking declaration. He is entitled to apply to purchase motor vehicle from Respondents based on Finance Circular No. 2 of 2013, notwithstanding that Applicant did not finish five (5) year term as a Minister – Court called upon to give meaning to the words “At the end of the term” in clause 4.5.3 of the Finance Circular No. 2 of 2013 – Applicant states that since the Finance Circular does not interpret “At the end of term,” resort be had to Section 68 (7) (b) of the Constitution – Respondents argue that “at the end of term” should be interpreted in line with Section 134 (2) of the Constitution which provides that the life of Parliament is five (5) years – For Applicant to benefit, he or she must be in office up to end of term – Held – “at the end of term” in Finance Circular No. 2 of 2013 should be interpreted in accordance with Section 134 (2) of the Constitution reason being that the Circular prescribes terms and conditions of Parliamentarians whereas Section 134 (2) provides for the life of Parliament – Application dismissed and each party shall bear its own costs.
JUDGEMENT
INTRODUCTION
[1] Serving before this court is the Application for Review at the instance of the Applicant. The Applicant is a Member of Parliament who, during the life of the present Parliament, was appointed as a Minister of the Crown at the Ministry of Industry, Commerce and Trade. His appointment as Minister was revoked sometime in November, 2016.
[2] During the Applicant’s term as a Minister, He was entitled to benefit under the Finance Circular No. 2 of 2013 in particular clause 4.5.3 in that at the end of his term he would be entitled to purchase the motor vehicle bought for his official use at its depreciated value of 20% per annum. In line with the Circular, the Applicant made his expression of interest to the Ministry of Public Works and Transport.
[3] On or about the 6th of October, 2017 the Applicant received a response from the Ministry of Finance informing him that the request has been declined on the basis that he had not reached “end of term.” It is that decision that is being sought to be reviewed by the Applicant.
The Parties’ Contention
The Applicant’s case
[4] The Applicant states that Finance Circular No. 2 of 2013 does not define “end of term.” The lack of definition should lead to the use of the Constitution. The Applicant further states that the constitutional provision, particularly Section 68 (7) (b) provides with certainty that for a Minister (of the crown) any period served in an office within the life of Parliament constitutes “a term of office.” Section 68 (7) (b) of the Constitution specifically states that “For purposes of this section any period served in an office within the life of Parliament constitutes a “term of office.”
[5] The Applicant contends that the decision by the 1st Respondent to refuse to sell the vehicle to the Applicant was unreasonable given the kind of burden carried by Minister who can be recalled at any time during the duration of their tenure in Cabinet. The Applicant further contends that where there is a reasonable belief that any policy of the executive arm will flout the express provisions of the Constitution the court which is given the responsibility of enforcing it may call for such policy to be laid before the Judiciary for its scrutiny to ensure compliance.
[6] The Applicant states that the decision by the 1st Respondent to decline the Applicant’s request for the purchase of the motor vehicle is an administrative decision performed in public office, which given the circumstances, should be reviewable in court.
[7] The decision, according to the Applicant, by the 1st Respondent in refusing to sell the motor vehicle to the Applicant was based on the definition of the term “end of term,” which the 1st Respondent equated it to the Parliamentary period instead of confining it to Cabinet Ministers as reflected in the policy.
The Respondent’s Case
[8] The Respondents submit that in terms of Section 134 (2) and (4), the life of Parliament is five (5) years. It is submitted therefore that “the end of term” of Parliament is five (5) years which is the life of Parliament. Any period served cannot be equated to mean the end of term and/or life of Parliament.
[9] The Respondents further submit that the wording of the Circular, as amended, is clear that the Minister of the Crown can only be in a position to purchase the motor vehicle “at the end of his or her term in office.” Since the Applicant did not continue in office up to the end of the life of Parliament, he is therefore not entitled to purchase the vehicle.
[10] It is the Respondents’ contention that the Circular expressly states that a Minister may purchase a motor vehicle “at the end of term.” The end of term in terms of the Constitution is five (5) years. So Applicant should correctly interpret Circular No. 2 of 2013 in line with Section 134 (2) and (4) of the Constitution.
[11] On the issue of the Review the Respondents state that the Application is prematurely before court basing that argument on the fact that the Respondents are yet to decide to sell or not to sell the motor vehicle at the end of term of the Ministers. The decision cannot be taken at the end of period served in office by a Minister. The Applicant must therefore move his application to purchase the motor vehicle at the end of the life of Parliament which is the period contemplated by the circular.
The Applicable Law
[12] Courts have clearly demonstrated that words should be given their grammatical meaning so as to give effect to the intention of the legislature unless they are unclear or ambiguous. Courts have also stated that the principles governing the interpretation of the Constitution are generally not different from those governing the interpretation of any other legislation.
[13] In Josiah Nhlabatsi and Another v Florence Nhlabatsi Case No. 243/2014 [2016] SZHC 87 (20 July 2016), the court observed that:-
“It is the primary rule of interpretation that if the meaning of the words is clear, it should be put into effect, and indeed, equated with the Legislature’s intention……….. by far the most important rule to guide courts in arriving at that intention is to take the language of the instrument or of the relevant portion of the instrument, as a whole; and when the words are clear and unambiguous to place upon them their grammatical construction and give them their ordinary effect.”
[14] Likewise in Hewlett v Minister of Finance and Another 1981 ZLR 571, Fieldsend C.J. correctly observed that the starting point in the interpretation of the Constitution and other legal instruments must be found in the words used. He stated that:-
“…………… in general the principles governing the interpretation of a Constitution are basically no different from those governing the interpretation of any other legislation. It is necessary to look at the words used and to deduce from them what any particular section, phrase on words means, having regard to the overall context in which it appears.”
Court’s observation and conclusion
[15] In light of the abovementioned cited cases, I am inclined to agree with the Respondents’ contention that the expression “at the end of term” should be interpreted to refer to the life of Parliament. This is based on the fact that Section 134 (2) provides for the life of Parliament, which is the five (5) year period whereas Circular No. 2 of 2013 provides for the terms and conditions of service for a Parliament that is in office. The two complement each other, because although the Constitution is the Supreme Law of the land, it does not provide for the terms and conditions of service for Parliamentarians including Ministers.
[16] It is clear that where words are clear and unambiguous they should be given their ordinary grammatical meaning. Likewise, the principles governing constitutional interpretation are the same as those governing the interpretation any other legislation. I guess the same principle should be extended in interpreting Finance Circular No. 2 of 2013 because it is a legal instrument.
[17] The other consideration the court has taken into account in agreeing with the Respondents’ contention is that contextually speaking, Section 68 (7) clarifies the issue of a “Minister not being in office for more than two consecutive terms,” which is dealt with in Section 68 (6). Sub section (7) has the key opening words that (7) “For purposes of this section:-
(a)…………………………………
(b) any period served in an office within the life of Parliament constitutes a “term of office.”
In other words “any period served in office within the life of Parliament shall be used in the computation of “term of office” for a Minister in order to determine whether a Minister has held office for more than two consecutive terms or not. To extend it further would cause absurdity.
[18] The Applicant’s Application is dismissed and each party shall bear its own costs.
_____________________
M.R. FAKUDZE
JUDGE OF THE HIGH COURT
FOR APPLICANT: T.M. NDLOVU
FOR RESPONDENT: M.M. DLAMINI
