IN THE INDUSTRIAL COURT OF ESWATINI
Case No. 252/16
In the matter between:
HLOBISILE NDZIMANDZE Applicant
PRINCIPAL SECRETARY – MINISTRY OF
FINANCE 1st Respondent
THE ATTORNEY GENERAL 2nd Respondent
CIVIL SERVICE COMMISSION 3rd Respondent
Neutral citation: Hlobisile Ndzimandze and The Principal Secretary Ministry of Finance and 2 Others (252/2016)  SZIC 73 (24 October 2019)
Coram: NSIBANDE S. JP
(Sitting with Nominated Members of the Court Mr. N. Manana and Mr. M. Dlamini)
Heard: 26 June 2019
Delivered: 24 October 2019
Summary – Labour Law – Industrial Relations – Applicant seeks an order declaring withholding of work by 1st Respondent be declared an unfair labour practice, that 1st respondent be directed to provide work to Applicant; that the Civil Service Commission directive that Attorney General consults with Applicant be declared unlawful and in breach of its constitutional mandate.
Held – that the Applicant has not made sufficient averments to support the relief claimed in prayers 1 and 2 of the Notice of Motion.
Held – that the CSC is the party vested with power to consult Applicant on her transfer and not the Attorney General. The party that transfers is the party that consults.
Held – Costs follow the event.
 The Applicant seeks an order in the following terms:-
- Declaring that the 1st Respondent’s action of depriving and not allocating work to the Applicant is an unfair labour practice;
- Ordering the 1st Respondent to provide the Applicant with the work of Legal Advisor in the Ministry of Finance forthwith;
- Declaring the 4th Respondent’s directive to the Attorney General to consult or transferring the Applicant and/or to transfer the Applicant, unlawful and in breach of its own constitutional mandate.”
 The Applicant and the Respondents have a protracted and sad history of litigation between them.Their history of litigation started five (5) years ago in 2014 when the Applicant approached this Court contesting her transfer from the Ministry of Finance. Her application was unsuccessful in this Court.She approached the High Court in review proceedings and was successful in having the transfer set aside for being irregular and mala fide.The Respondents, being dissatisfied with the judgement of the High Court sought to appeal against it to the Supreme Court.They were unsuccessful in the appeal following that the Supreme Court dismissed their application for condonation for the late filing of the Court record and deemed the appeal abandoned.
 The CSC, in keeping with the direction of the Court, heard the Applicant’s grievance as well as the Principal Secretary Finance’s complaint against her and issued its decision in a letter dated 21st March 2018.The CSC decision is captured in the last paragraph of the letter and is as follows:-
“… that the Civil Service Commission made a decision that the Attorney General consult with the officer and find her a suitable Ministry and/or revert her to the Attorney General’s Chambers where she can best serve her employer.In light of that transition, the Principal Secretary Ministry of Finance is mandated to utilise the officer as Legal Advisor the best way possible, effective immediately.” In reaching this decision, the CSC states that it took into consideration the fact that the working relationship between Ms Ndzimandze, the substantive Principal Secretary and Directors had deteriorated immensely. In terms of the letter, several other factors were taken into consideration.
The Respondents contended that the relief sought under prayer 1 of the notice of motion was long adjudicated upon by this Court in litigation involving the same parties as well as in the High Court between the same parties.In the alternative, the Respondents argue that the Court is functus officio on the issue of deprivation of work to the Applicant because the Court has in fact pronounced that deprivation of work is an unfair labour practice.In argument, the Respondents conceded that 1st Respondents action of depriving the Applicant work or of deliberating not assigning work to her amounted to an unfair labour practise.
The Respondents complain that the Applicant’s papers lack sufficient averments to support the granting of the relief sought in prayers 1 and 2; that throughout the body of her Founding Affidavit, the Applicant makes no allegation that she was deprived of work between 23rd March 2018, when she received the CSC’s decision and 10th April 2018, when the present application was launched.It was Respondents’ argument that the Applicant was, therefore, not entitled to the relief she claim under prayers 1 and 2.
 On the question of the constitutional validity of the CSC’s decision to have the 2nd Respondent consult with Applicant, the Respondent submitted that there is nothing untoward about the CSC involving the 2nd Respondent in consultation with the Applicant.It was submitted that the power set out in Section 187 of the Constitution is subject to the constitution “or any other law.” It was argued therefore that the CSC was within its legal right to instruct the Attorney General, as head of department of the legal services of the Government.It was argued that the CSC had made the decision to transfer the Applicant from the Ministry of Finance and that it made logical sense for it to involve the 2nd Respondent in the decision of where she would be transferred to, as he was well placed to know the legal needs and legal personnel requirements of the Government.This was said to be in tandem with the Civil Service Order and Civil Service Regulations (in particular Regulation 23) as well as Sections 77 (3) (a) and (5) of the Constitution of Eswatini.
 The Applicant’s attorney addressed the two issues raised by Respondents regarding the submission on resjudicata/functus officio and the lack of sufficient averments to sustain an order in terms of prayer 2.It was submitted that prayer 2 sought specific performance and that the Court had not granted such prayer previously.Nor had the Courts declared that the refusal to give Applicant work is an unfair labour practice.
 It seems to us that the Respondents concede that the continued refusal of 1st Respondent to give the Applicant work constitutes an unfair labour practice.They simply respond to this prayer by saying that the previous Court decisions have indicated that such deprivation is indeed an unfair labour practice.However, this issue is tied to the 2nd issue that the Respondents raised – has there been sufficient averments made by the Applicant to entitle her to the declaratory order and the 2nd Order calling for the 1st Respondent to provide her with work?
 The matter that now remains for determination is that of the order of the CSC regarding the consultation between the Applicant and the Attorney General.The premise of the Respondent’s defence to this prayer is that the CSC has taken the decision that Applicant be transferred as it is within its power to do so in terms of Section 187 (1) of the Constitution of the Kingdom of Eswatini.It was argued that having taken the decision to transfer Applicant, the CSC was entitled to take the input of the Head of Department as provided for by Regulation 23 of the Civil Service Regulations.Section 187 (1) of the Constitution reads “subject to the provisions of this Constitution or any other law, the power of appointment (including acting appointments, secondments and confirmation of appointments), promotion, transfer, termination of appointment, dismissal and disciplinary control of public officers shall rest in the Civil Service Commission.”
Regulation 23 of the Civil Service Regulations reads, “If the Board (the CSC) proposes to tender advice which in the opinion of the Board, is substantively at variance with the recommendation made to the Board by a head of department, the Board shall so inform the head of department who may, if he so wishes be heard by the Board.”
“In my view though, the supervision of the Attorney General on his subordinates only goes as far as they exercise the functions bestowed in the Attorney General by the Constitution…
However, issues relating to the management of public officers i.e. human resource issues… constitutionally vest in the Civil Service Commission and no one else. So that whenever there is a need for a transfer in respect of a public officer for instance, the requisite consultation in that transfer is the exclusive preserve of the Civil Service Commission (my emphasis).”
 Justice Dlamini sheds further light on the issue by stating that “If the Civil Service Commission deems it necessary that it takes into account a recommendation by the Attorney General in respect of a transfer… it is perfectly entitled to do so. But the ultimate power and authority to consult and transfer public officers vests only with it. One needs to point out as well that even though the constitution allows for the delegation of the functions of the Civil Service Commission, such delegation however is only upon the decision or any of the other members of the Commission (see Section 186 (2) (e)).”
 The issue of costs was raised in argument with the Applicant seeking costs and the Respondent resisting any costs order.Having considered the circumstances of this application, in particular the court’s judgment under case No. 252/2016 (B), it is our view that the Respondents defence of the matter was clearly untenable.In the circumstances costs ought to follow the event.
In the circumstances the Court makes the following order;
- The 4th Respondent’s directive to the Attorney General to consult with the Applicant is hereby declared unlawful and in breach of its constituted mandate.
- The Respondents are directed to pay costs of this application.
The members agree.
For the Applicant: Mr M.M. Sibandze (Musa M. Sibandze Attorneys)
For the Respondents: Mr N.G. Dlamini (The Attorney General’s Office)