Chief Officer (Swaziland National Administration) v Kunene, in Re: Kunene v The Attorney General and Others (7/2007) [2008] SZICA 4 (01 May 2008);

2







IN THE INDUSTRIAL COURT OF APPEAL

HELD AT MBABANE Industrial Appeal No. 7/2007

In the matter between


THE CHIEF OFFICER (SWAZIAND

NATIONAL ADMINISTRATION Appellant


And


CYPRIAN VUSUMUZI KUNENE Respondent



In re:


CYPRIAN VUSUMUZI KUNENE Applicant


And


THE ATTORNEY GENERAL 1st Respondent

THE MINISTER FOR FINANCE 2nd Respondent

THE ACCOUNTANT GENERAL 3rd Respondent

THE CHIEF OFFICER - KING'S OFFICE

(Swaziland National Administration) 4th Respondent

THE CIVIL SERVICE COMMISSION 5th Respondent



Coram Banda, JP

Maphalala, J A Mamba, JA


For the Appellant Mr. Flynn

For the Respondent Mr. Maziya





JUDGMENT




[1] This is an appeal against the judgment of the President of the Industrial Court wherein he made the following orders:



(a) The decision of the Civil Service Commission, to approve the de-secondment of the applicant (respondent in this appeal) from his post as Treasurer at the Swazi National Treasury with effect from 13th April 2007, is declared to be invalid and having no force or effect.

(b) The 4th respondent is directed to reinstate the applicant forthwith to his position as Treasurer at the Swazi National Treasury with effect from 13th April 2007 and to pay him any of his remuneration which is in arrears since that date.

(c) The Swaziland Government and the 4th respondent are jointly and severally liable for the appellant's costs.

(d) The taxing master shall not be bound by the tariff of costs with respect to the costs of the applicants counsel and may allow such larger sums as he/she thinks reasonable.



[2] The appellant noted an appeal against this judgment on the following grounds that:



(l)The court a quo erred in finding that the relationship between the appellant and the respondent was that of employer and employee.

(2) The court a quo erred in considering the reasons for the de-secondment of the respondent in that the Swazi National Treasury, as the institution to which the respondent was seconded, is entitled to request his de-secondment. The reasons for the request are not a relevant consideration.

(3) The court a quo erred in finding that the respondent had an existing right which would be prejudicially affected by his de-secondment in that the respondent agreed, on his secondment, that his remuneration on secondment was of limited duration which period would end on one month's notice.

(3.1) The respondent specifically agreed in terms of the secondment agreement to a period of secondment which could be terminated by his employer on one month's notice and acquired no right to retain an enhanced remuneration.


(4) The court a quo erred in its interpretation of General Order A. 177(7) in that the word "may" therein means that the Commission is permitted to require an officer to return for duty to the service.


(4.1) The court a quo therefore erred in finding that the General Order A. 177(7) means that the Commission has discretion in the matter.


(5)The court a quo erred in finding that the Commission, in considering a request for de-secondment by an institution, exercises a discretion and that the request is required to be motivated by proper and sufficient reasons. The court a quo erred in this regard in that it is the institution to which the employee of Government is seconded which exercises its right to request de-secondment and the Commission has no discretion to require the request to be motivated or to refuse it.


(5.1) The court a quo further erred in finding in paragraph 72 of the judgment that the appellant was required to justify its request to de-secondment.


(6) The court a quo erred in its findings in paragraph 71.4 of the judgment in that the Swazi National Treasury was not the employer and its request did not amount to the arbitrary termination of the respondent's services with the Swazi National Treasury. The appellant's request for de-secondment of the respondent was a termination of the arrangement between it and Government, the respondent's employer.


(7) The court a quo erred in making the order of reinstatement in paragraph 73(b) of the judgment in that:-


7.1. The appellant is not the respondent's employer.

7.2. The respondent has not proved any agreement or legal basis in terms of which the appellant is required in law or by agreement to accept the secondment of an employee at the discretion of the Commission. The appellant is accordingly not obliged to have the said employee imposed upon it as the order of the court a quo requires.



[3] The facts of this appeal are adequately set out in the judgment of the court below. The respondent was, on 30th September 2002, seconded by the Civil Service Board (Commission) to the position of Treasurer at the Swazi National Treasury under the King's Office. His substantive post, at the material time, was that of Financial Controller in the Ministry of Health and Social Welfare.



[4] The terms of the secondment were set out in a formal letter which was sent to the respondent from the Civil Service Board (Commission). The letter was copied to the King's Office. The letter of secondment contained the following terms and conditions:



(l)Your appointment will be in the scale Grade 17 and your salary from the date of your secondment will be El51 067.

(2)1 am further to inform you that your appointment on secondment may be terminated at any time by giving you one month's notice of termination.

(3) If your secondment is terminated you will revert to your substantive post of Financial Controller at the salary you would have received had you not been seconded.

(4) You will continue to be governed by General Orders and other regulations in force, or as may be amended from time to time.



[5] There can be no doubt on the evidence that the respondent had accepted the secondment on the above terms and conditions as he duly assumed duties of that office as Treasurer in October 2002. We think it is important at this point, in our judgment, to refer to the distinct character and status of the Swazi National treasury.



[6] The Swazi National Treasury is the Financial Administration Department of the King's Office. It does not fall within the ambit of Government but is part of what is known as the Traditional Government Structure known as the Swazi National Administration. The court a quo made this specific finding. This is an important finding and will be constantly put to the fore in this judgment. The Swazi National Treasury is not part of the Civil Service and that is why it was necessary to second the respondent to it. It has its own terms and conditions of service.



[7] The letter of secondment made it quite clear that, apart from the remuneration, the respondent would continue to be governed by the General Orders and not by the terms and conditions followed at the Swazi National Treasury.



[8] After two years at the National Treasury the respondent, and other civil servants under secondment, concluded that their employment status at the Swazi National Treasury was not advantageous to them because their secondment could be terminated on one month notice which would result into their reverting to their substantive posts in the civil service with consequent reduction in their remuneration and status. They accordingly raised these concerns with the King's Office. The Chief Officer apparently wrote a letter to the Civil Service Board (Commission) in which he recommended that the terms of secondment which had hitherto applied should be waived and that the secondments should be treated as transfers on promotion. The Chief Officer also raised other concerns which it is not necessary, in our view, that they should be raised in this judgment but suffice to say that the recommendations which the Chief Officer made were never approved or adopted by the Government of Swaziland.



[9] It would appear, however, that on 4th May, 2006, Hezekiel Nhlabatsi, the Human Resources Officer at the King's Office purported to offer, to the respondent, a contract of permanent appointment as Treasurer of the Swazi National Treasury with effect from the 14th October 2002 until the respondent's date of retirement which would fall on 7th December 2009. It will be observed that the effective date of the purported contract is the 14th October 2002 retrospective from the date the respondent assumed duty at the Swazi National Treasury.



[10] The genesis of the dispute in this case would appear to have stated on 15th January 2007 when Mr. Joseph Khumalo reported for duty at the Swazi National Treasury to replace the respondent as Treasurer. It is the respondent's case that it was at that point that he was shown a letter dated 27th December 2006 from the Civil Service Board (Commission) addressed to him through the Chief Officer in the King's Office. The letter is in the following terms :-



'DE-SECONDMENT - YOURSELF

I am directed to inform you that the Civil Service Commission has approved your de-secondment. You will revert to the post of Financial Controller Grade 3 in the Ministry of Health and Social Welfare with immediate effect."



[11] It is the contention of the respondent that his de-secondment was prompted by a sinister and ulterior motive in that he was being victimised for exposing irregularities in the payment of remuneration to certain individuals appointed into various committees which are linked to the King's Office including the Board of Royal Trustees, the Swazi National Council Standing Committee, the Boarder Adjustment Committee and the Ludzidzini Council. It is further the contention of the respondent that he drew the attention of the Chief Officer to these irregularities in a memorandum dated 19th June 2006.



[12] In the Notice of Motion the relief which was sought against the appellant was set out in prayer 3-2 of the Notice which sought a declaration that the respondent contract with the appellant remained "valid, operative and effective."


[13] It is contended by the appellant that in view of the fact that the respondent failed to prove that he had an existing right against the appellant, there was no basis for the respondent's continued service with the appellant who had requested his de-secondment. It would appear that at the hearing of the matter in the court below the legal basis of the respondent's cause of action namely the purported contract with the appellant had been rejected by the court a quo which is found at pages 89 and 90 and paragraphs 14 and 15 where it held as follows:



"14. This purported contract of employment between the applicant (respondent in this appeal) and the Swaziland National Treasury was never copied to the Civil Service Board (Commission) or the Ministry of Public Service and Information. The applicant (respondent) never resigned from his substantive employment with the Swaziland Government. The contract (purported) appears to have been a ruse instigated by the applicant (respondent) to secure his secondment from termination. The Human Resources Officer colluded with the applicant (respondent), but we find that the contract has no legal force or effect because

14.1. it was entered into without the authority of the 4th respondent and

14.2. it was not binding on the applicant's (respondent's) substantive employer the Swaziland Government, and did not have the effect of terminating his employment as a civil servant or his secondment to the Swazi National Treasury.



15. In the premise we are unable to declare the contract valid, operative and effective, as requested by the applicant (respondent)



These findings by the court a quo are significant in many respects because it shows that -

  1. The contract between the respondent and the Government of Swaziland continued to subsist during the secondment.

  2. That the legal relationship of employer and employee between the Swaziland Government and the respondent continued.

  3. That the respondent continued to be a civil servant governed by the General Orders.


[14] It is clear, therefore, that the court a quo having rejected the legal basis of the respondent's cause of action the only point of argument left was the right to be heard. Indeed this was the focus of the Maziya submissions before us. It was Mr. Maziya's contention that the principle of natural justice required that the respondent should have been given the right to be heard before his secondment could be terminated.



[15] In the case of ADMINISTRATOR TRANSVAAL V TRAUB

1989(4) s 731 Corbett CJ as he was then enunciated the principle of audi alteram partem in the following terms:



"When a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty or property or existing rights, the latter has a right to be heard before the decision is taken (or in some instances thereafter....) unless the statute expressly or by implication indicates the contrary".



His existing rights were as a civil servant and those rights were not going to be prejudiced in any way as he was going to continue to work as a civil servant with all his rights as a civil servant preserved.


[16] It is contended by Mr. Flynn for the appellant that the respondent did not have an existing right to remain on secondment or on the salary on secondment. It is further contended that the respondent had accepted the secondment on the very basis that he would only retain the right to the higher remuneration, on the scale F3, while seconded and that he would revert to the position of Financial Controller as it is stated in the letter of secondment



"at the salary you would have received had you not be seconded."



[17] Mr. Flynn must surely be right. On the finding of the court a quo in paragraphs 14 and 15 of its judgment the respondent's existing rights were those of his status as a civil servant and those rights were not going to be prejudicially affected by the de-secondment and indeed we would hold that the de-secondment would reinforce his existing rights as a civil servant a status which he continued to enjoy and had never been terminated by the secondment as correctly found by the court a quo. The respondent did not, in our judgment, have an existing right to remain on the high remuneration he enjoyed at the Swazi National Treasury. The contract of secondment entitled the respondent to an enhanced remuneration only during the period of secondment which he knew and accepted would be terminated on one month's notice. He accepted the terms and conditions of secondment and was, therefore, aware, that on de-secondment, he would revert to his substantive post at a salary he would have received if he had not been seconded.



[18] The respondent contention, as advanced on his behalf by Mr. Maziya, is that his de-secondment was irregular and unjust because he had not been given the opportunity to be heard; that if he was given the opportunity to accept or decline the secondment he should also have been given the opportunity to accept or decline the de-secondment and that the de-secondment was irregular because no notice of his de-secondment was given; that no reasons for this de-secondment were given and that the Civil Service Commission had not been requested that the respondent should be de-seconded. And it was contended by Mr. Maziya that the de-secondment was an act of victimization actuated by ulterior motives. Mr. Maziya forcefully submitted that the respondent had been sent to the National Treasury to go and protect public funds and that the respondent should not be moved from there just because he had exposed financial irregularities. Mr. Maziya's latter submission would appear to suggest albeit, implicit^, that anyone else would not properly safeguard public funds at the National Treasury. On the contrary the appellant* had made it very clear that any replacement for the respondent should be as strong as the respondent had been in his work.



[19] A number of decided cases on the issue of the right to be heard was cited to us and we will now briefly consider some of those cases in our judgment. In the case of ADMINISTRATION, TRANSVAAL AND OTHERS VS ZENITE & OTHERS 1991 (1) SA 21 the case involved the exercise of a power which was disciplinary or punitive in nature. The employer was a public authority whose decision to dismiss involved the exercise of a public power. The judge in the case, Justice of Appeal Hoexter, attempted to distinguish it from the case of Moncktins v British South Africa Company 1920 AD 324 on the basis that the Zenite case dealt with a matter of discipline and stated as follows:



"I have already pointed out that in the present case the power exercised by the Administration against the respondents is of a disciplinary or punitive nature. That is the central fact of this case which distinguishes it from Moncktins

case. In Moncktins' case the trial court found that, although the plaintiff was a member of the Rhodesia Civil Service and was therefore subject to the disciplinary regulations affecting such members, he had in fact not been punished under the regulations."



[20] Mr. Flynn has contended that the respondent in this case held the position of Treasurer at the Swazi National Treasury subject to the de-secondment on one month's notice; that the respondent has not been punished but has only been dealt with in accordance with the terms of his letter of appointment on secondment. Mr. Flynn has submitted that the respondent's argument that he must be afforded a hearing is based on the assumption that he might be entitled to retain the enhanced remuneration if he were heard. Mr. Flynn has submitted that since the respondent specifically agreed, according to the letter of secondment, that he would have no such right and that therefore the respondent has no right which can be prejudiced. We have carefully reviewed and considered the case cited to us. It is patently clear to us that there is no question in the case before us that the respondent is being punished or in any way being disciplined. All that is happening is asking him to return to his substantive office as is required under the contract of secondment. The only existing right that he had with the appellant was the right to higher remuneration during the period of secondment. And when the secondment came to the end that right ceased to exist. That is what he accepted and was aware of or he ought to have been aware throughout the secondment. Indeed we find that the respondent was aware that he had no such existing right at the Swazi National Treasury and it was because of this realisation that the respondent sought to craft a contract which he sought to surreptitiously foist on the appellant in order to acquire the right which he did not have. He remained a civil servant and continued to be an employee of the Government of Swaziland. He could not claim a right under a contract which the court a quo quite properly found was unable to declare "valid, operative and effective as requested by the applicant (respondent)".



[21] The respondent had also raised the issue of lack of notice which had been conceded and was subsequently provided and thereby curing the omission to serve notice of one month as was required under the contract of secondment.



[22] There is a finding of the court a quo which has greatly exercised our minds. In paragraph 21 and in the subsequent paragraphs of the judgment, the learned judge refers to the allegations which the respondent had made regarding the alleged irregularities in which he found that fraudulent payments of allowances were made to certain committee members. It is clear to us that the court a quo accepted these allegations as true. We find this troubling. There was no evidence, apart from the broad allegations made by the respondent, to prove that these payments were made and that they were contrary to some standing regulations which state that members of these committees, and who were in receipt of other income would not be eligible to receive allowances for sitting on those committees. Fraud is a serious allegation to make and it should not lightly be accepted unless there is evidence to support it. No such evidence was produced and we believe that such evidence was necessary before serious allegations of fraud could be imputed to people. We also find it difficult to understand the basis of another finding, by the court a quo in reference to the letter which the Minister of Finance wrote to the Accountant General requesting a replacement for the respondent at the Swazi National Treasury. The court a quo stated as follows:-



"The Minister of Finance is an ex-officio member of the Board of Royal Trustees (Section 411) of the

Royal Emoluments and Civil List Act, No. 17 of 1992). Apparently he is also the Chairman of this Board. Nevertheless, the letter he wrote to the Accountant General was written in his capacity as Minister of Finance, not as Chairman of the Board. Since the Minister of Finance is the line Minister of the Accountant General, this distinction is significant since the latter implies Ministerial influence in the de-secondment process".



[23] And the court a quo went on to state:



"In our view, the Minister involving himself in the de-secondment of the applicant (respondent) is only explicable on the basis of some ulterior, personal motive."



The evidence in the court below was that the Minister of Finance is the chairman of the Board of the Royal Trustees. The letter which he wrote to the Accountant General was written soon after a Board meeting of the Royal Trustees. We find it difficult to understand why the court a quo found that the Minister could only have written the letter in his capacity as Minister and not as Chairman of the Board. As we have noted earlier that letter was written soon after a Board meeting and there was therefore, a compelling factual basis on which the court a quo should have found that the Minister wrote the letter in his capacity as Chairman of the Board of the Royal Trustees. We are unable to find that there was a basis for the finding that the Minister had interfered in the routine employment matter and that he had an ulterior and personal motive. We can find no evidence for that statement.



[24] It will be recalled that the letter of secondment of the respondent had stated that the respondent, during his period of secondment, would continue to be governed by the Swaziland Government General Orders.



[25] As the court a quo found that there was a continuing contract of employment between the respondent and the Government of Swaziland; the respondent did not cease to be an employee of the Government and as such he continued to be governed and to be bound by the General Orders which constitute part of the terms and conditions of his contract of employment. It is, therefore, wrong in our view, for the court a quo to find that the relationship between the respondent and that of the Swazi National Treasury was that of employee and employer and this would appear to contradict its earlier finding in paragraphs 14 and 15 of its judgment where it found that the respondent "never resigned from his substantive employment with the Swaziland Government", and that the purported contract "did not have the effect of terminating his employment as a civil servant".



[26] It is the submission of the appellant that where a contract of employment exists, as it does in this case, between the Government and the respondent, the arrangement that Government has with a third party to second an employee to that third party does not substitute another contract of employment or establish the third party as the employer. The arrangement is between the Government and the third party and the contract between the employee and the Government continue to subsist. The appellant has further contended that the General Order A 177(9) specifically qualifies the question of "control" by the word "functional". Clearly, therefore, the overall control of the seconded employee continued to remain with the Government by means of the General Orders. It is, therefore, submitted by the appellant that the approved institution merely takes charge of the functions to be performed by the seconded employee. General Order A 177(7) which governs secondment of employees provides as follows:

"(7) Subject to the terms of the agreement covering the period of secondment, the Government may, after giving appropriate notice to the institution, or if the approved institution so requests, require a seconded officer to return for duty to the service. In this event he shall be appointed to a post at a salary not less than the salary he would have received by the grant of normal annual increments if he had not been seconded."



[27] The provisions of the General Orders are significant in this case because they answer the question which Mr. Maziya repeatedly raised in his argument, namely, that the respondent should have been asked or be given the opportunity to be heard if he wanted to be de-seconded. This provision states clearly that at the end of the secondment the employee is required to return for duty to the service. It is a requirement for the employee to return for duty and he has no choice in the matter. It is also clear to us that the General Order does not state that the approved institution may only motivate a request for de-secondment on proper and sufficient reasons. We find that no reasons were given for the secondment of the respondent and none were necessary to be given at his de-secondment and indeed none are required under the General Orders. See General Order A. 177(7).



[28] We have carefully considered the submissions which both counsel have advanced before us. It is clear to us on the basis of the facts and the decided authorities cited to us that the Swazi National Treasury was not, as a matter of law, the employer and the respondent was not its employee in its proper sense. We therefore accept the contention by the appellant that the court a quo erred in ordering the reinstatement of the respondent to the office of Treasurer. The appellant was not obliged by the agreement or law to accept the secondment of an employee at the discretion of the Commission. Equally we accept that an approved institution is not obliged to have an employee imposed on it.



[29] We accordingly find that this appeal must succeed with costs of appeal including certified costs of counsel in terms of High Court Rule 68(2).



R.A. BANDA, JP


I agree



S.B. MAPHALALA, JA


I agree


M.D. MAMBA, JA



Delivered in open court this day of..May..2008.