THE HIGH COURT OF SWAZILAND
Case No. 977/94
the matter between:
MATHENDELE NXUMALO Applicant
ATTORNEY GENERAL 1st Respondent
MINISTRY OF EDUCATION 2nd Respondent
TEACHING SERVICE COMMISSION 3rd Respondent
THE APPLICANT Mr. Dladla
THE RESPONDENTS Mr. J. Maseko
this application Mr. Nxumalo, who is a schoolteacher and was in 1989
the headmaster of the Galile Primary School in Shiselweni, seeks to
have set aside a decision made by the Teaching Service Commission in
January 1991 suspending his salary and, he alleges, by implication
dismissing him from the teaching service, and an order directing the
Commission to reinstate him within the service.
the alternative, as his notice of motion is expressed, he seeks the
same relief against the Ministry of Education.
his founding affidavit, it appears that in January 1989, there was an
election for a School Committee for Galile Primary School. Mr.
has alleged that the election was irregular because Article 3.2.1 of
the final constitution of school committees required that at least
five members of a school committee are to be parents of children
attending at the school at the time of the election, whereas only two
of the members elected in the 1989 Galile election were so qualified.
respondents here have not denied this, although the members of the
School Committee concerned are not parties to the present
application, so that this present decision is not binding on them at
any event, it appears that Mr. Nxumalo reported the matter to the
Regional Education Officer's representative, the school committee
became aware of his misgivings, and in consequence relations between
the committee members and the headmaster deteriorated.
Nxumalo says that while he was on sick leave, building funds were
collected and used contrary to proper accounting procedures, and that
when he returned he therefore refused an instruction to issue
receipts because the money was unaccounted for.
he says, the school committee arranged with the Regional Education
Officer that he should be transferred by way of an exchange with the
headmistress of Phumelele Primary School with effect from 29th
January 1991, which he refused to do. His reason was that it was too
far from his home. He did , however, indicate his willingness to
accept a transfer to St. Anselm Primary School if a vacancy arose.
This seems evident from Annexure B to his founding affidavit.
Strictly speaking, it is not proved by the founding affidavit.
Paragraph 6 of the affidavit, which deals with these matters, was
drafted imperfectly, and then amended imperfectly at the hearing.
However I do not think that the point is controversial at all.
it is his case that the Galile School Committee arranged this
transfer, it is evident from Annexure A to the founding affidavit
that the Teaching Service Commission effected the transfer. The
Commission did not respond to his letter (i.e. Annexure B 'which was
addressed to the Commission.) When the Galile Primary School reopened
in January 1SS1, he found that he had been replaced by the former
Primary School. In other words the transfer, in that respect, had
been carried into effect.
says that there was a subsequent meeting in the Ministry of Education
at which he was persuaded to accept the transfer and that he
subsequently sought the assistance of his Union. then he says, there
was a further meeting with the Ministry when he was "again
forced" to accept the transfer without being given an
opportunity to present his case. In May 1991 he was informed of an
alternative transfer to another school which, in his words, he
"failed to honour" because it was inconvenient. He says
that in August of that year he was "again ordered to leave"
or to transfer to Phumelela Primary School. Still aggrieved, he asked
his union to pursue the matter further. A vacancy arose in a school
that did suit him. The union informed him in November 1S91 that the
Commission would look into it.
matter dragged on. Eventually in May 1994 he received a letter that
had been written on 12th April of that year. This informed him that
the Commission had "suspended his salary" in 1991 under
"section" 14(1) of the Teaching Service Regulations 1983
for his failure to comply with its order transferring him to
Phumelela Primary School.
paragraph 15 of his founding affidavit, he asserts that he was not
afforded a fair proper and just hearing; and that "the decision"
was not communicated to him until he received the letter of 12th
April 1994; that the transfer was contrary to the practice of
offering a teacher two choices; that it was a ploy by the Galile
School Committee; and that ''if it was purely a disciplinary measure"
it contravened regulations 15 and 16 of the Teaching Service
response, the Ministry end the Commission do not admit that the
school committee was involved in the decision to transfer him. In
their answering affidavit, it is said by a Mr. Pat Muir, the
Executive Secretary of the Commission, that the transfer was made by
the Commission under "Circular No 1/1984" on administrative
grounds and that the Commission had full authority to do so. It is
denied that Mr. Nxumalo was ever refused " a fair hearing".
Nxumalo's founding affidavit is unsatisfactory. It is a solemn
document and he did sign it on oath, but I regret to say that I am
inclined to think that he was ill-advised. It was obviously prepared.
by his legal adviser at the time who had a professional duty to draft
it adequately and, in my view, to ensure that it reflected accurately
Mr. Nxumalo's assertions and to advise him adequately on the
significance of swearing to such a document.
do not find it easy at all to believe that this was done.
document is drafted badly. I do not propose to take the time to go
into the reasons why. Some errors were corrected at the hearing,
Crown Counsel raising no objection. From the preceding narrative it
should be evident that there are other unsatisfactory features about
it. In particular, no attempt has really been made at all to explain
why, having in his own affidavit admitted to agreeing - twice - to
the transfer in issue, he nevertheless was somehow justified in not
proceeding on it. More seriously, it appears to me that the applicant
procured urgency by assertions of fact that are less than complete.
It is apparent that he was aware that he had ceased to receive his
salary well before he came to this court claiming that his family's
plight was suddenly precarious, as he does on paragraph 16 of his
affidavit - for urgency in my view implies, at least in the present
case, a sudden crisis.
am constrained to say that I think that his legal adviser is in fact
open to criticism whether or not I am correct in inferring that Mr.
Nxumalo - a former headmaster - did not fully understand the gravity
of the affidavit. His lawyer, with respect, should not have asked him
to sign the document in the form in which it was presented to this
court. The facility to adduce evidence in written form confers
obvious advantages - and thus responsibilities - on deponents, and
also on their legal advisers. They are to be prepared fastidiously.
of this, I am afraid, is compounded by the way in which the
applicant's claim was in the event argued at the hearing. The
argument was not easy to follow. It came down to an assertion that
the transfer was contrary to the rules and regulations relating to
committees and that the applicant was not obliged to comply with it.
that submission, Mr. Maseko for the Crown responded simply that the
evidence showed that it had been effected by the Commission under
"section" 14(1) of the regulations.
reply, counsel who at the hearing appeared to contend that Mr. Maseko
was reopening issues raised by the Crown in an earlier notice of
exception which was not pursued, but that is a misconception.
Nxumalo bears the burden, on his own papers, of making out a case why
this court should by way of review grant him the relief sought. On
his own papers, he has failed to do so. Mr. Maseko bears no burden of
making out a positive defence.
application is accordingly dismissed by discharging the rule; the
costs must follow the event.