EPTC fraud: Judge Mzwandile for pension matter
MBABANE – Judge Mzwandile Fakudze will head the full bench that will determine whether pension benefits of a parastal employee suspected of stealing from the employer can be withheld pending proceedings to recover the money.
The judge will be sitting sideby-side Judge Ticheme Dlamini and Judge Doris Tshabalala.
This is the matter in which a former employee of Eswatini Post and Telecommunications Corporation (EPTC), who was implicated in the over E2 million fraud, challenged the application by the parastal to withhold his pension benefits after he tendered a resignation.
Parties
The matter will be argued on August 3, 2022 after the parties had filed the relevant papers. EPTC will be represented by Hasso Magagula of Dynasty Inc Attorneys and Linda Dlamini of Dlamini and Associates will appear for Mzwandile Gugulethu Tsela.
Tsela, who was a mail sorter based at Riverstone Post Office, is accused of stealing E1 050 982. After his resignation EPTC rushed to court where it obtained an order to withhold his pension benefits pending proceedings for the recovery of the money.
Through his attorney, Tsela raised points of law to the effect that the relief sought by EPTC pertained to the interdiction of his pension benefits. He contended that the High Court lacked competency to grant the relief sought by EPTC, as same was constitutionally prohibited by Section 195 (6) of the Constitution. Section 195 (6) provides that: “Pension benefits shall not be the subject of attachment by order of court for the satisfaction of any judgment or pending determination of civil proceedings to which a person is a party except where that judgment or civil proceedings are in respect of maintenance.”
A full bench of the High Court in 2018 declared the law which empowered government to withhold pension for civil servants or public officers who had been found on the wrong side of the law as unconstitutional.
Usually, government would approach the courts for an order to withhold pension benefits for civil servants who had been dismissed for misappropriating funds. Most of the culprits were school head teachers and officers from the law enforcement agencies.
Constitution
The full bench found that Section 32(2) of the Retirement Fund, which permitted such attachment, was inconsistent with Section 195 (6) of the Constitution and, therefore, was invalid.
The section which the court declared unconstitutional stipulates as follows: “A retirement fund may deduct an amount from a member’s benefit in respect of; (a) an amount representing the loss suffered by the employer due to any unlawful activity of the member and for which judgment has been obtained against the member in a court or a written acknowledgment of culpability has been signed by the member and provided that the aforesaid written acknowledgment is witnessed by the member and who had no less than eight years of formal education (b) an amount for which the employee is liable under a guarantee issue by the employer for purposes of obtaining a housing loan; provided that an original notarised document exists which confirms that the guarantee was made.”
Attachment
The full bench made this ruling in the case where the Eswatini Government had filed an application for the attachment of terminal benefits of a former, Head teacher Lucky Mhlanga,
This was after Mhlanga was dismissed by the Teaching Service Commission (TSC) for allegedly misappropriating school funds amounting to E114 333.75.
After his dismissal, the Eswatini Government instructed the Public Service Pension Fund (PSPF) to deduct the aforementioned amount.
PSPF is reported to have declined to accede to this request, saying it had no right or obligation in law to effect the deduction. Section 195(6) was cited as the basic for such refusal.