IN THE INDUSTRIAL
COURT OF SWAZILAND
HELD AT MBABANE
In the matter between:
CHAIRMAN OF THE CIVIL
SERVICE COMMISSION 1st
JOSIAH YENDE: MEMBER
FOR APPLICANT: M.
FOR RESPONDENT: S.
Applicant is an accountant in the employ of the Swaziland
Government. On the 24th
January 2007 she was criminally charged with contravening the
provisions of the Prevention of Corruption Act 2006 and with fraud
simpliciter arising from the performance of her duties as a civil
servant. It is common cause that a date for the trial of the
Applicant on the aforesaid charges has not yet been allocated.
2. On 23rd
February 2007 the Civil Service Commission interdicted the Applicant
from her duties on half pay pending finalization of her criminal
3. The Applicant
challenged her interdiction by way of an application to the
Industrial Court. On 22nd
March 2007 the Court ruled that the decision of the Civil Service
Commission was unlawful, and the suspension of the Applicant on half
pay was set aside.
4. The reasons for the
Court's ruling were that:
4.1. The Applicant was
not informed of her right to legal representation, and she was not
given proper opportunity to exercise such right; and
4.2. She was not
afforded any opportunity to make representations on the issue of the
suspension of half her emoluments.
5. The Civil Service
Commission thereafter convened a fresh hearing and invited the
Applicant to appear before it, to show cause why she should not be
interdicted from her duties on half pay. The Applicant attended
before the Commission on 19th
June 2007 accompanied by her representative.
6. Prior to her
attendance before the Commission, the Applicant objected to the
Commission hearing the matter, arguing that the same Commission
whose decision had been set aside by the Industrial Court would be
biased against her. Notwithstanding this objection the Commission
proceeded with the hearing on the 19th
the hearing the Secretary to the Commission wrote to the Applicant
in the following terms:
your representations and considering the provisions of regulations
38 and 39 of the Civil Service Board (General) Regulations of 1963,
the Commission directed that:
(a) You are
interdicted or suspended on half-pay from the performance of your
duties from the 19th
June 2007 pending finalization of your criminal case.
proceedings, if any, will be instituted against you after the
conclusion of the pending criminal case."
Applicant has again challenged her suspension by way of an urgent
application to the Industrial Court, seeking an order-
Reviewing and setting
aside the suspension of the Applicant and declaring same null and
Applicant to her position as Accounts Officer with the Ministry of
grounds for this legal review, as set out in the Applicant's
affidavit, are as follows:
suspension is unlawful and unfair because it depends upon the
uncertain event of a criminal trial whose date of commencement is
indeterminate and may be unreasonably delayed;
9.2. The Applicant was
not invited at the hearing, personally or through her legal
representative, to make representations on why her suspension should
be on half pay.
9.3. The decision of the
Commission to suspend the Applicant on half pay was grossly
unreasonable and based on a misconception of the law relating to the
interdiction of civil servants.
9.4. The refusal of the
Commission to constitute a different panel for the hearing gives
rise to the reasonable apprehension of bias.
10. The Respondents
oppose the application and they have filed an opposing affidavit
made by the deputy secretary of the Commission. In their affidavit,
the Respondents raise the issue that there is no objective urgency
that justifies a waiver of the normal requirements of the rules of
the Industrial Court. If there is any element of urgency, it is
11. In response to the
Applicant's grounds for review on the merits the Respondents state
11.1. The period of
Applicant's suspension is subject to section 194 (4) of the
Constitution of Swaziland (Act No. 1 of 2005) which provides:
"194 (4) the
matter of a public officer who has been suspended shall be finalized
within six months failing which the suspension shall be lifted."
The Respondents submit
that the period of the suspension is governed by section 194 (4) and
cannot be regarded as uncertain or indefinite or unreasonably
prolonged since it will expire after 6 months "in the event the
criminal trial fails to take off."
11.2. The Respondents
deny that the Applicant was given no opportunity to make
representations on the suspension of half her emoluments.
11.3. The Respondents
submit that the Commission applied its mind to the issues before it
in accordance with the laws of Swaziland and there are no grounds
for interfering with its decision.
11.4. The allegation of
bias or the appearance of bias is denied and the Respondents say
that the setting aside of the previous suspension is no reason to
conclude that the Commission will not approach the new hearing with
an open mind.
The court will deal with each of these issues in turn.
13. On the question of
urgency, this court held in the case of Bunnie
Patrick Mhlanga v P. S.
of Public Works & Transport and Another (IC Case No. 130/03 at
an unlawful suspension
pay has serious consequences to the means of livelihood of an
employee and warrants the urgent intervention of the court.
14. The Respondent's
counsel in his argument did not challenge the urgency per se, but
submitted that the Applicant delayed unduly in coming to court and
she cannot now "move into high gear and expect the court and
the other litigants to adjust to her motion"
v Normans Transport Lines 1992 (3) SA 500WJ
15. The Applicant was
suspended on the 19th
June 2007. She says that shortly thereafter she fell ill and had to
be hospitalized for over two weeks. Her attorney requested reasons
for the Commission's decision on 9th
July 2007. The reasons were only furnished on the 19th
July 2007. The Applicant's mother also fell ill and was hospitalized
until mid-August 2007, during which time the Applicant had to look
after her. The Applicant instructed her attorney to institute these
proceedings on 20th
16. None of these
allegations are denied by the Respondents. They do provide some
explanation as to the delay. Although the matter is distinctly
borderline, the court will condone the delay and allow the matter to
be heard as one of urgency.
With regard to
suspension pending the result of criminal proceedings, the following
provisions of the Civil Service Board (General) Regulations , 1963
"38 (3) If
criminal proceedings are instituted against an officer in any court,
disciplinary proceedings, upon any grounds involved in the criminal
charge shall not be taken pending the result of criminal
"38 (6) No
officer acquitted of a criminal charge shall be dismissed or
otherwise punished on any charge upon which he has been acquitted,
but nothing in this paragraph shall prevent the officer being
dismissed or otherwise punished on any other charge arising out of
his conduct in the matter, unless the charges raise substantially
the same issue as those on which he has been acquitted."
"39(1) If the
Minister considers that the interests of the service require that an
officer should cease forthwith to exercise the powers and functions
of his office, he may interdict him from the exercise of those
powers and functions, if disciplinary proceedings are being taken or
are about to be taken or if criminal proceedings are being
instituted against him."
18. These regulations
were made at a time when our criminal justice system was not subject
to the extended delays we now regard as normal. In dealing with the
suspension of a private sector employee, the Industrial Court
recently made the following remarks:
"It is also not
conducive to good industrial relations for an employer to subject
its disciplinary prerogative and contractual obligations to the
vagaries and delays of the criminal justice system .....
Moreover in the view
of the court it is oppressive to suspend an employee pending
finalization of a case which will not determine his/her future
employment status: the conviction of an employee of a criminal
offence against his/her employer does not excuse the employer from
holding an internal disciplinary enquiry, nor for that matter does
the acquittal of the employee preclude the employer from taking
disciplinary action against the employee."
-per Dunseith JP in
Simelane v Spectrum (Pty) Ltd t/a Master Hardware (IC Case No.
681/2006 at page 5).
19. The need for a
complete overhaul of the Civil Service Board (General) Regulations,
1963 has been repeatedly drawn to the attention of the Attorney
General by this court, to no avail. The disciplinary procedures
provided in the regulations are antiquated and out of line with the
standards of modern labour law. The regulations vest disciplinary
functions in the Prime Minister whilst the Civil Service Order, 1973
has long been amended to vest those same functions in the
Commission. Certain of the regulations directly conflict with the
provisions of the Employment Act 1980 and the Constitution.
20. Nevertheless, ex
Regulation 39 (1) the commission is permitted to interdict the
Applicant pending the outcome of the Criminal case, and in terms of
Regulation 38 (3) the Commission is prohibited from instituting
disciplinary proceedings against the Applicant pending the result of
the criminal trial. In the premises, the Applicant's submission that
a suspension pending finalization of criminal proceedings is
unlawful cannot be sustained.
21. We note in passing
that if the Applicant is acquitted of the criminal charges against
her, the Government is precluded by Regulation 38 (6) from
instituting disciplinary proceedings against her on the same charges
- notwithstanding that the criminal charges require the higher
burden of proof beyond a reasonable doubt, whereas disciplinary
charges can be proved on a balance of probabilities.
22. The interdiction of
a civil servant, and the postponement of disciplinary proceedings
pending the result of criminal proceedings, as prescribed by the
regulations, would normally result in an unreasonably prolonged
suspension to the prejudice of the civil servant and the Government.
Fortunately, section 194 (4) of the Constitution has now ameliorated
the position by limiting the period of suspension to six months.
23. We do however reject
the Respondent's contention in paragraph 12.1 of its affidavit that
the suspension will be lifted "in the event the criminal trial
fails to take off until the lapse of the six months period."
Section 194 (4) states that "the matter of a public officer who
suspended shall be
within six months " (emphasis added).
This means that if the
officer is suspended pending criminal proceedings, then those
proceedings must be finalized within six months (not merely "take
off' within six months), failing which the suspension shall be
24. With regard to the
Applicant having been denied an opportunity to make representations
concerning her suspension on half pay, this allegation also has no
merit. The minutes of the hearing reveal that both the Applicant and
her legal representative made representations that she be suspended
on full pay, giving as reasons that the case will take long to be
concluded; the Applicant is a single parent; she has a long and
clean service record and is about to retire; and she has financial
25. We will now consider
whether the Commission's decision to suspend the Applicant on half
pay is fair and reasonable.
26. If an employee is
willing and able to work in accordance with the contract of
employment, the employer is bound to pay his/her wages even though
it has no work for the employee to do.
Municipality v 0' Sullivan 1923 AD 201.
27. The same principle
applies where the employee is willing and able to work but the
employer for administrative reasons decides to stop the employee
from working. Unilateral suspension of the contract of employment
does not relieve the employer of its duty to pay the employee's
wages. The employer may only suspend an employee without pay to the
extent that they have contracted to that effect, or express
provision is made in a statute.
: Workplace Law (Juta) at 86.
28. There is no evidence
before court that the parties have contracted to permit suspension
or interdiction without pay. However Regulation 39 (3) of the Civil
Service Board (General) Regulations, 1963 states:
"An officer who
is interdicted shall, subject to regulations 38 (4) and (5), receive
such emoluments not being less than one half of his normal
emoluments, as the Minister [read
29. Thus a suspended
civil servant shall receive such emoluments as the Commission in the
exercise of its discretion "thinks fits". The Commission's
discretion is not however unfettered. It must be exercised
judiciously and according to the rules of reason and fairness.
Ismail & Another
v Durban City Council 1973 (20 SA 362 (N) at 371H-372D.
These rules requires
that the Commission takes relevant considerations into account in a
reasonable and fair manner.
30. It is important to
bear in mind that the Applicant is presumed to be innocent until she
is proved or has pleaded guilty (section 21 (2) (a) of the
Constitution.) Her interdiction does not imply any wrongdoing on her
part. It is merely a holding operation done by way of good
administration. It is not a punishment and there is no reason why it
should contain any penal element.
31. It is worth noting
that special legislation in South Africa that once expressly
provided for suspension without pay of certain categories of
public-sector employees has now been repealed; it is no longer
permissible in South Africa to suspend an employee, as a holding
action pending disciplinary action,without pay. This development in
the South African law reflects the modern labour law approach that
it is intrinsically unfair to deprive an employee of some or all of
his/her remuneration before it has been determined whether he/she
has committed any disciplinary offence.
Grogan : Workplace
Law (Juta) at page 63.
NIJMSA v Nu - Fiber
Form Plastics SA (2005) 26 ILJ 204 (BCA)
In so far as Regulation
39 (3) interferes with the rights of a civil servant to receive
his/her emoluments, it must be given a restrictive interpretation.
This principle is not relaxed merely because Regulation 39 (4)
provides for a refund of the emoluments withheld if the disciplinary
proceedings do not result in dismissal or other punishment.
the minutes of the hearing before the Commission, the
I would like to
appeal to the Commission not to suspend Ms. Simelane on half pay
because section 39 does not compel the Commission to suspension on
half pay but can exercise its discretion. I would also like to
submit that it may take long for the case to be concluded and if Ms.
Simelane is suspended on half pay she will suffer financially.
What are the reasons
for requesting suspension on full pay?"
question suggests that the Commission adopted an approach that
Applicant must provide reasons why her salary should be on full
rather than that reasons must exist why her salary should not be
Commission furnished written reasons for its decision that
be suspended on half pay. Sound reasons are given for the
to suspend the Applicant from her duties. On the question of
pay, after confirming that the Commission has a discretion in
matter, the Commission states the reason for its decision as
"It is a long
established practice for the Civil Service Commission that civil
servants charged with criminal offences be suspended on half pay
pending finaiization of their cases. This case therefore should not
be treated in isolation because that would amount to different
civil servants who are subject to the same rules and regulations."
It is clear from the
above quoted statement that the Commission did not give any
consideration to the factors advanced by the Applicant to show that
suspension on half pay would cause her financial hardship and loss.
The Commission considered that it was bound to suspend the Applicant
on half pay because that is its invariable practice and to do
otherwise would amount to discrimination.
This is a profoundly
wrong approach. If there is an established practice of automatically
suspending on half pay without looking at the individual
circumstances of the affected employee, then that is an unfair and
irregular practice which needs to be changed. The Commission's blind
adherence to such a practice means that it did not exercise its
discretion at all, let alone reasonably and fairly.
The logic of Regulation
39 (3) appears to be that, if the employee has committed an act of
misconduct for which he/she deserves to be dismissed, then he/she
has no right to be paid his/her full emoluments whilst his/her guilt
is established through due process. If the employee's guilt is not
proved, then the emoluments withheld must be refunded.
In our view, withholding
a portion of emoluments in anticipation of dismissal or other
disciplinary sanction is intrinsically unfair. In a modern
credit-financed society, suspending payment of a portion of the
emoluments of an employee may result in the repossession of his/her
house, car or furniture. The education of his/her children may also
be disrupted if school fees are not paid. Access to necessary
medication may be financially compromised. These kind of
consequences cannot be reversed by refunding the emoluments withheld
in the event that the employee's guilt is not proven.
40. In our view it is
necessary for the Commission, when considering what emoluments an
interdicted officer shall receive during the period of suspension,
to give consideration inter
to the following factors;
the anticipated period
Whether the officer may
suffer any irreparable loss or prejudice if he/she does not receive
his/ her full emoluments;
circumstances of the officer;
Whether the officer is
otherwise prevented from performing his/her duties during the
period of suspension e.g. because he/she is in custody;
The nature of the
charges and the likelihood of the officer being found guilty of a
serious disciplinary offence.
41. The starting point
of the Commission should be that an employee who is willing and able
to work is entitled to payment of his/her emoluments unless there is
good reason to withhold a portion.
42. The Commission did
not properly apply its mind to the Applicants individual
circumstances and wrongly considered that it had no discretion to
depart from the practice of suspending on half pay. Its decision to
suspend the Applicant on half pay was irregular and unfair and must
be set aside.
43. The final issue for
adjudication is the question of bias. The Applicant submits that the
Commission should have recused itself from rehearing the matter
because it had already decided the matter. The Applicant says that a
reasonable person would apprehend that the Commission could not keep
an open mind after its first decision had been set aside by the
bodies perform their functions with varying degrees of competence.
When the requirements of natural justice are not observed, it is
usually because such bodies are not skilled in the law, or are
inexperienced and know no better, or because a requirement is simply
overlooked. The mere fact that the Commission's first decision was
declared null and void does not justify an inference of bias.
45. There is no evidence
that the commission approached the rehearing having prejudged the
issues or having closed its mind to persuasion that its first
decision was wrong.
46. Notwithstanding that
the Commission failed to properly exercise its discretion with
respect to the proper application of Regulation 39(3), we do not
find that this arose from bias and partiality.
47. The suspension of
the Applicant stands, subject to the provisions of section 194 (4)
of the Constitution, but the condition that the suspension is on
half pay is set aside. The matter is remitted to the Commission for
a proper determination of the emoluments the Applicant should
receive during the period of her suspension. Pending such
determination, the Applicant is to receive her normal emoluments.
Each party will pay its own costs.
The Members agree.
OF THE INDUSTRIAL COURT.