IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD
AT MBABANE CASE NO. 56/2002
In
the matter between:
KINGSLEY
HLANZE APPLICANT
and
ATTORNEY
GENERAL 1st RESPONDENT
THE
TEACHING SERVICE COMMISSION 2nd RESPONDENT
THE
CHAIRMAN, ST. MARY'S SCHOOL
COMMITTEE 3rd
RESPONDENT
DIOCESAN
EDUCATION OFFICE 4th RESPONDENT
CORAM:
NDERI
NDUMA: PRESIDENT
JOSIAH
YENDE: MEMBER
NICHOLAS
MANANA: MEMBER
FOR
APPLICANT: J. MASEKO
FOR
1st & 2nd RESPONDENTS: T. DLAMINI
FOR
3rd & 4th RESPONDENTS: S. KUBHEKA
JUDGEMENT
26/06/02
The
Applicant seeks an interdict to restrain the Teaching Service
Commission and the Management of St Mary's School from transferring
him to Ejubukweni Primary School. By the time the application was
lodged on the 27th February, 2002 the Applicant had already been
transferred by a letter dated 13th February, 2002 written by the
Executive Secretary of the Teaching Service Commission.
1
St.
Mary's School is a Roman Catholic Mission school that is aided by
Government by the provision and supply of teachers. It is not a
Government maintained school.
The
Manager of the school and the Grantee is Sister Deirdre O'Neill and
the Teaching Service Commission has minimal role in the
administration of the school.
It
is in this light that Sister O'neill requested the Teaching Service
Commission to transfer the Applicant as a result of a serious
breakdown of relationship between herself and the Applicant and
between the Applicant and his members of staff especially the Deputy
Headmaster.
On
the 15th August, 2001 she had met the applicant and advised him of
her intention to seek his transfer in the interest of all the parties
concerned and the school in particular.
On
the other hand the Applicant alleges that the sole reason why he was
being transferred was to cover up the misappropriation of school
funds by the Chairman and Committee of the school, with who he was at
loggerheads.
That
the Committee had alienated him from the Manager and Grantee of the
school and misled her into initiating the transfer in bad faith.
He
singled out the Chairman, Calvin Msibi and the Secretary Johannes
Malindzisa as the people that had orchestrated his purported
transfer.
He
annexed to the application cheques marked B1, B2, B3 and B4, which he
alleges were issued for wrongful purpose by the School Committee. He
added that the Committee had frustrated his efforts to call a parents
meeting to avoid this issue being addressed, and the transfer was in
furtherance of their intend to ensure that the issue dies naturally.
The
Manager of the school in her Answering Affidavit denies such
misappropriation and purported cover up and asserts that it was in
the interest of all parties that the Applicant was transferred to
ensure smooth running of the school.
2
From
the correspondence placed before court especially annexure 'AG6',
'AG7' and 'AG8', it is apparent that there was friction between the
Grantee of the school and the headteacher (Applicant) and between the
Applicant and his deputy.
This
culminated in the writing of 'AG9' on the 29th November, 2001 to the
Secretary, Teaching Service Commission wherein she referred the
dispute to the Teaching Service Commission.
By
a letter dated the 7th February, 2002 the Applicant was invited to
appear before the Teaching Service Commission on the matters raised
by the management of the school.
The
conflict between the Applicant on one hand, the Grantee, the members
of Staff and the school Committee on the other hand was addressed and
the Commission asked the applicant to accept a transfer in the
interest of the school and all parties.
On
the same date the applicant wrote annexure 'E' to the application
applying for a transfer from St. Mary's Primary school to Matsapha
Government school, in Manzini Region. Subsequent thereto, and on the
same date, the Applicant was transferred to Ejubukweni Primary school
as headteacher by the Teaching Service Commission. The letter of
transfer is annexure 'A' to the Application.
The
following day, the 14th February, 2002 the Applicant wrote annexure
'F' purporting to withdraw the request for a transfer upon getting
advice from his attorneys.
In
summary the applicant was transferred by the Teaching Service
Commission after a hearing and a written request by himself that he
be transferred from St. Mary's school.
Evidently,
due to the breakdown of vital relationships between the Applicant and
the Management and Staff of the School, it was in the interest of the
school that the applicant was transferred.
3
The
reasons advanced by the applicant for wanting to stay at St. Mary's
School are ill advised in the court's view and could only perpetuate
a total collapse of the administration of the school, to the
detriment of all concerned.
That
there maybe a case of misappropriation of school funds, is neither
here nor there, for the purpose of determining whether it is
presently in the interest of justice that the transfer be
implemented.
The
Applicant has failed to establish a clear right to the relief sought.
The inconvenience he may suffer by having to relocate to another
school is far out weighed by the prejudice the school would suffer if
the present wrangling is allowed to continue.
It
is the prerogative of management upon following established procedure
to effect transfers in the interest of the school.
Whereas
employees are entitled to a hearing prior to a transfer being
effected, in this case, the meeting convened by the Teaching Service
Commission satisfied the requirement, though it was not elegantly
done.
Employers
should be reminded that transfers ought not to be treated as a
disciplinary measurer but should only serve an administrative
function for better and at times for worse, depending on the real
intention and purpose of effecting the particular transfer by the
employer. Cases of good employees, being transferred so as to improve
other institutions are not unknown.
An
employee cannot claim a right to stay in one station in perpetuity
but his concerns should be addressed in such cases by way of a
hearing and in appropriate cases by compensation for hardship
suffered while in the process of transferring. Circular No. 1 of
1995, and in particular regulation 24 (i) thereof states that the
Teaching Service Commission may at any time as and when circumstances
require, transfer a teacher from one school to another. This circular
was a result of an agreement between the Ministry of Education and
the Swaziland National Association of Teachers on the implementation
of regulation 24 of the Teaching Service Regulations of 1983, as
contained in Legal Notice 126 of 1995.
4
It
is important also to note that part of the Agreement and in
particular point 5, recognizes, transfer of teachers in exceptional
circumstances. The Applicant had been at St. Mary's school for more
that 24 calendar months and was eligible for a transfer in terms of
the Agreement
Annexure
'D' to the Application (Circular No. 1/84) is irrelevant to the issue
at hand, as is concerned with normal transfers and in any event the
circular had already been superceded by Circular No. 1 of 1995.
In
the result the application must fail in its entirely.
There
will be no order as to costs.
The
members agree.
NDERI
NDUMA
JUDGE
PRESIDENT - INDUSTRIAL COURT
5
