IN THE INDUSTRIAL COURT OF SWAZILAND
In the matter between:
The Acting Commissioner of Anti-Corruption Unit
Principal Secretary - Ministry Of Justice & Constitutional
Secretary - Ministry of Public Service & Information
Chairman-Civil Service Board ………………………………………………........4th
RESPONDENTS: V. VILAKATI
JUDGEMENT - 07/09/05
Applicant was employed by the Anti-Corruption Commission on the 3
July 1998 in the position of an Accounts Officer. On the 12th
July 2005 she brought the application against the six Respondents for
an order couched in the following terms:
1. Directing the 5th Respondent to pay to
the Applicant her acting arrears for the period 1st
September 2000 to 31st August 2001, January 2004, and
August2004 to-date of payment
Directing the Respondents to confirm the Applicant to the position of
Principal Accountant with effect from February 2002,
Costs of the application.
Further and/or alternative relief.
application is grounded on the Applicant's Founding Affidavit with
annexures marked A-P. The Attorney General, the 6th
Respondent opposed the application on behalf of all the Respondents.
The Opposing Affidavit was by one Sipho Lukhele, a Director of the
Anti - Corruption Commission.
FACTS NOT IN DISPUTE FROM THE DEPOSITION
The Applicant was employed by the Government of
Swaziland on the 8th April 1988 as a junior clerical
officer in the Ministry of Agriculture and Cooperatives. On the 14th
August 1991, the Civil Service Board appointed the Applicant on
promotion to the post of Assistant Accounts Officer, On the 11th
February 1993, the Applicant was transferred to the accounts
department in the Ministry of Justice and Constitutional Affairs,
the 1st April, 1994, the Civil Service Board promoted the
Applicant to the position of Accounts Officer.
On the 3rd July 1998, the Applicant was
recruited by the Anti-Corruption Unit as an Accounts Officer.
On the 24th July 2000 she was promoted to the
position of Report Centre Commander with effect from the 1st
June 2000 on Grade 10.
The appointment with the Commission would be governed by
the Government General Orders and other Government Regulations
currently in force or as may be amended from time to time. The said
appointments are on permanent and pensionable basis.
The Applicant's duties as a Report Centre Commander
entails, interalia, to manage, coordinate and run the Report Centre.
These are contained in the Anti-Corruption Directive Guidelines No.
1/95 as revised in October 1999.
In September 2000, the Applicant was orally instructed
to perform the duties of Principal Accountant and placed on salary
grade 12 on an acting basis. The directive was by the Acting
Commissioner of the Anti-Corruption Commission.
The duties of the Applicant as a Principal Accountant
were supervisory in nature and are contained in annexure VG'
to the application.
Counsel for the Respondents conceded before court that
the Applicant was indeed appointed to act as Principal Accountant,
She further conceded that the
Applicant continues to act in that capacity to-date
although there is not in place an appointing instrument.
She told the court that the Applicant was entitled and
should be paid acting allowance for the period 1st
September 2000 to 31st August 2001, and January 2004
(excluding 5 days), Indeed the Applicant was paid acting allowance
for the period from 1st September 2000 to August 2004,
that she has not claimed for.
The Respondent disputes that the Applicant is entitled
to payment of acting allowance for the period August 2004 to date.
The opposition to payment is for the reason that there is not in
place any appointing instrument to the post of Acting Principal
Counsel for the Respondent conceded that the Applicant
continues to act in the position of Principal Accountant to date
inspite of lack of the instrument. For that reason, counsel for the
Respondent submitted that the Applicant was not entitled to payment
of acting allowance though she continued to do the work. The argument
is self defeating. The Respondent cannot rely on its own default to
deny an employee remuneration for work that has been admittedly
performed. The acting allowance therefore is lawfully due and payable
to the Applicant for the period August 2004 to-date.
CONFIRMATION TO THE POST OF PRINCIPAL ACCOUNTANT
The Applicant seeks an order directing that she be
confirmed to the position of Principal Accountant with effect from
basis of the claim is that in terms of Government General Orders, an
employee employed on acting capacity must be confirmed in that
position upon expiry of six months.
Applicant states that she has now been working in an acting capacity
since September 2000 to-date.
except for the months in respect of which she was not paid acting
allowance, payment of the acting allowance was notified. and paid.
The notification issued to pay her in the acting capacity have been
open ended making her acting appointment adfmitum.
The Applicant alleges, which is not in dispute that at
all materia! times since September 2000 she had been diligently
executing the duties of a Principal Accountant and timeously prepared
and filed Monthly Budget Management Reports.
On the 6th May 2003, the Principal Secretary
in the Ministry of Finance commended her office for the quality and
regularity of the submission of the Unit's Budget Management Report.
She finds no reason why she should be kept on an acting
capacity for such an inordinately long period.
Respondents state that for the Applicant to qualify for
confirmation to the position of Principal Accountant, she must be in
possession of a B.Com Degree. That the Respondent has requested the
Applicant to submit a Degree certificate to no avail, For that reason
the Applicant is not entitled to confirmation to the post.
For these submissions the Respondent relied on a
document titled "SCHEMES OF SERVICES FOR THE ACCOUNTANCY CADRE"
from the Ministry of Finance.
The document was stated by both parties to set the
standards, qualifications, direct entry points, progression and
promotion for all Civil Service Accounting Cadre.
The Respondent in particular relied on clause 5.15 for
its refusal to confirm the Applicant in the position of Principal
Clause 5.15 (ii) reads:
Promotion: (a) Senior accountants who possess a
B. Com degree (old Style) plus a pass at the final level of the
SIA/AAT plus being a registered Accountant (SD) are eligible to be
considered for promotion. In addition candidates must possess four
years practical experience in that grade.
(b) Senior Accountants who do not possess the
qualifications detailed in (a) above but who have five years
practical experience in that grade are eligible to be considered for
It is indisputable that the Applicant has since the 8th
April 1988 to-date served the Civil Service in various capacities.
The duties have been specified as Junior Clerical Officer, Assistant
Accounts Officer, Accounts Officer, Report Centre Commander and that
of Acting Principal Accountant
It is interesting to note that from the date of
appointment as Acting Principal Accountant on 1st
September 2000 to-date she has acted as Principal Accountant for a
period of exactly five (5) years.
In terms of grading, the position of Report Centre
Commander was equivalent to that of Senior Accountant in the Civil
Service on Grade 10,
It is without hesitation that I find that the Applicant
has more than satisfied the requirements of Regulation 5,15 (ii) (b)
to be confirmed and/or promoted to the position of Principal
Accountant at the Anti Corruption Commission.
Accordingly, the court makes the following order:
(a) The 5th Respondent is directed to pay to
the Applicant acting allowance arrears for the period Ist
September 2000 to 31st August 2001, January 2004
(excluding 5 days); and from August 2004 to date of payment.
The Respondents are directed to confirm the Applicant to the position
of Principal Accountant with effect from February 2002.
The Respondents are to pay costs of the application.
The members agree.