PM was too ill during appeal
and duties to decide the matter and acted on the dictation of another (the second respondent). He relinquished his duty to exercise a right to a fair trial and just right to administrative justice,” Mpendulo alleged.
The veracity of these allegations is still to be tested in court.
He argued that the decision of the former prime minister was biased and malicious, not taken in a fair and just manner. Mpendulo submitted that Barnabas did not give written reasons for his decision in terms of Section 33 of the Constitution Act 2005.
Mpendulo of Mhlangatane in the Hhohho Region has applied to the High Court to review the decision of the former PM, who confirmed his dismissal.
He wants the court to set aside the decision to dismiss him and compel the police service to reinstate him. He further applied for his salary to be reinstated, among other prayers.
Unlawful
Mpendulo argued that his dismissal was unlawful. He alleged that the late NATCOM did not abide by the rules of natural justice and the right to administrative justice in law when dealing with his matter.
Mpendulo is represented by Leo
Ndvuna Dlamini.
Meanwhile, the late National Commissioner of Police, William Tsitsibala Dlamini, during his tenure, said there was nothing to suggest that Barnabas was biased or that he did not observe the rules of natural justice or the requirements of administrative justice.
According to William, who deposed to the answering affidavit, from the averments, Barnabas was sick, went to hospital and died a week later. The former national commissioner pointed out that Mpendulo did not substantiate his allegations, which he denied as baseless.
William said the disciplinary proceedings were lawfully conducted in accordance with the Police Act and regulations in terms of which the commissioner exercised disciplinary powers over the applicant.
He argued that the disciplinary powers were long delegated to the commissioner by the Civil Service Order 16/1973 in terms of sections 181 and 187 of the Constitution.
He further told the court that the provisions of Section 189 of the Constitution were subject to the establishment of the Police Service Commission in terms of Section 267 of the Constitution.
According to William, the Board before, which Mpendulo appeared, was a lawful creature of the Police Act of 1957 and its regulations as applicable in 2014. He said the Police Act of 2018 was inapplicable because it was not in force in 2014 when Mpendulo’s conduct was inquired into.
The late NATCOM further informed the court that there was no legal requirement for the national commissioner to personally appear before the PM to defend his decision.
“Only the applicant had to appear to prosecute his appeal. I further deny the unsubstantiated allegations of bias, failure to apply the mind to the issues, malice, dictation and mere reliance on the letter of dismissal.
Proceedings
“On written reasons, an applicant cannot so complain because he did not request for same. He was contented with the spoken word. The single officer’s proceedings were similar to those of the magistrates’ court trying criminal cases. The record bears out this fact,” William submitted.
William also argued that Mpendulo’s founding papers did not support the relief sought. He said each of the relief’s sought could not be granted for the reasons set out herein below.
Mpendulo’s prayer for reinstatement with arrear wages, according to William, was unfounded and untenable because he pleaded guilty to the dishonest act of theft, which eroded the necessary element of trust in the employment relationship. The matter is pending in court.