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MBABANE- Business Eswatini (BE) has again approached the High Court for the suspension of operations for the Training, Localisation and Labour Migration Committee (TLLMC).

The committee was established by the minister of Labour and Social Security using the Commission of Enquiry Act of 1963.

It was formed to inter alia, provide advice to the minister of Labour and Social Security on issues pertaining to appointment of locals into senior positions in institutions.

The committee was also tasked with making assessments of application for work permits and making recommendations for the approval or non-approval of work permits to the minister of Labour and Social Security. Other duties of the committee were to receive applications pertaining to requests by expatriates seeking employment in the Kingdom of Eswatini. It was also one of its responsibilities to hold meetings for the purposes of discussing issues pertaining to training and localisation and labour migration.

Operation

The applicant (BE) averred that the continued operation of TLLMC was prejudicial to it, in that it was continuing to make recommendations on the issuance or decline of work permits and decisions pertaining to labour migration. According to the applicant, the committee’s very existence was unlawful and it was operating in the absence of a clear and transparent process relating to the issuance of work permits and labour migration.

On December 15, 2022, the High Court declared that the establishment of the TLLMC was unlawful and invalid. The judgment by the High Court came after BE filed an application wherein it was seeking an order, reviewing and setting aside the establishment of the committee on the basis that same was unlawful. Dissatisfied with the judgment, on January 12, 2023, government through the attorney general (AG), noted an appeal against the decision, arguing that the High Court erred in many aspects.

Judgment

The filing of an appeal automatically stays the execution of the judgment of the trial court.

In its fresh application, BE does not only want the court to issue order suspending the operations of the committee but also wants to be granted an order to execute the judgment that was handed down on December 15,2022 pending finalisation of the appeal that was filed by government. The wider effect of the judgment is that ministers can longer use the Commission of Enquiry Act of 1963 to appoint committees. In the past, ministers would appoint committees to perform a variety of specific functions like the TLLMC. The list is not exhaustive.

The applicants (Business Eswatini) averred that the functions and activities of the TLLMC were unlawful on the premise that they were not authorised by an empowering statute. It was further the applicant’s contention that the appointment of the members of the committee was purportedly in contravention of the enabling statute.

Proceedings

In his founding affidavit, BE Chief Executive Officer (CEO) E. Nathi Dlamini submitted that while the proceedings to challenge the validity of the TLLMC were ongoing, the minister of Labour constituted another committee using the same legal provision, exercising the same powers and conferring on the committee identical object as before. He alleged that the new committee was established under Legal Notice No.243/2022 and was currently operational. Dlamini contended that it was the operation of this committee that was sought to be interdicted pending determination by the Supreme Court on the validity of the TLLMC

“It is submitted that due to the nature and functions of the TLLMC, coupled with its highly prejudicial activities as well as the fact that it has been declared by the court as being unlawful, that good cause exists for the court to grant leave to execute the judgment and to interdict its operations pending determination of the appeal,” argued Dlamini. The CEO went on to argue that the court had already satisfied itself that the establishment of the TLLMC under the Commissions of Enquiry Act was unlawful. He submitted that, by inference, it followed that there was a realised potential of irreparable harm to the applicant if the respondents operations were permitted.

Operations

Dlamini told the court that it would be in their interest to suspend the operations of the TLLMC pending determination by the Supreme Court of the lawfulness or otherwise of the committee.

“The arbitrary nature in which the TLLMC carried out its functions, has given rise to prejudicial conduct with far-reaching implications for labour migration,” submitted the CEO. He alleged that the industry had continued to be adversely affected by the arbitrary and sometime irrational decline of work permits, based on the recommendations of the TLLMC, thus curtailing the acquisition and retention of the much needed skills in the workplace. The matter is still pending in court and appearing for the applicant was Zweli Jele of Robinson Bertram, while for the respondents was Assistant Attorney General Mndeni Vilakati.