IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 110/2002
In
the matter between:
AARON
FAKAZI KUNENE APPLICANT
and
PRINCIPAL
SECRETARY MINISTRY OF
AGRICULTURE
AND CO-OPERATIVES 1ST RESPONDENT
CHAIRMAN
- CIVIL SERVICE BOARD 2ND RESPONDENT
ACCOUNTANT
GENERAL 3RD RESPONDENT
ATTORNEY
GENERAL 4TH RESPONDENT
CORAM:
NDERI
NDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: COLLIN NTIWANE
FOR
RESPONDENT: SYLVIA MASEKO
JUDGEMENT
08/05/02
The
Applicant worked as an Inspector of works in the Fire and Emergency
Department earning a salary on Grade 10 prior to his appointment and
promotion to the post of Workshop Manager on Grade 12 on the 7th
July, 1999.
The
letter of promotion is annexure 'AP1' to this application and such
promotion was backdated to April 1999.
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The
promotion followed an application by the Applicant and subsequent
interviews.
The
Applicant after the promotion received a letter dated 27th October
2000 advising him that the Civil Service Board had withdrawn such
appointment with effect from 31st October 2000 because the High Court
in Case No. 1796/2000 had ruled that the promotion / appointment was
irregular.
The
appointment had been challenged by the Applicants who were not
successful in their bid to be appointed to the post. The court order
and the letter are annexed to the Application marked 'AP3' and 'AP2'
respectively.
The
Principal Secretary in the Ministry of Agriculture on the 10th
October, 2000 requested the Civil Service Board to appeal against the
High Court decision as he considered the Applicant qualified and
competent for the post he had been promoted to.
The
Respondent neither appealed the decision nor did it seek an
alternative posting for the Applicant, This notwithstanding, it
continued to pay the Applicant until he received a letter dated 22nd
March, 2002 from the Ministry of Agriculture and Cooperatives
advising him that the Ministry would discontinue his salary with
effect from the 1st April, 2002.
Once
the appointment/promotion of the Applicant was set aside by the High
Court on the 14th September, 2000 he automatically reverted to his
previous position with the Fire Department.
The
Applicant was never dismissed as a civil servant and he continues to
tender his services as per his previous appointment.
The
Ministry of Agriculture ought to have regularized the Applicant's
promotion after it was served with the court order by conducting the
recruitment process afresh but instead, it continued to pay the
Applicant in disregard of a court order on Grade 12.
The
Respondents have not filed any Opposing Affidavit but have raised
legal objection to the Application on the basis that the promotion
was declared irregular and was set aside by the High Court hence the
Applicant
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is
not entitled to an order directing the government to pay him his
monthly salary on Grade 12.
Whereas,
the court agrees with the objection by the Respondent, it is also
true that the Applicant remains an employee of the Respondent as
previously employed at the Fire Department on Grade 10. So long as he
continues to tender his service, the Respondent should and is bound
to continue paying him on Grade 10 scale.
The
Applicant should not be penalized at all for irregularity committed
by the Respondent.
In
the result and in terms of the prayer; further and/or alternative
relief, the 2nd and 3rd Respondents are ordered to continue paying
the Applicant on the position he holds at Grade 10 with the Fire and
Emergency Department.
The
Respondents are condemned to costs of this Application.
The
Members Agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
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