I’m not coming to Eswatini - Sticks

MBABANE – South Africa-based SWATCAWU Secretary General (SG) Sticks Nkambule, says he will not come to Eswatini because he is concerned about his safety.

His lawyer, Lucky Howe, yesterday told the Industrial Court that Nkambule was worried about his safety, because when he left Eswatini, there was violence in the country.

A warrant of arrest was issued against Nkambule and he challenged it. Government raised points of law, which Judge Abande Dlamini dismissed. Nkambule was ordered to appear in person to give evidence in the matter, but still, he has not done so.

Judge Dlamini yesterday reminded Nkambule’s attorney, Howe, that an order was issued on September 5, 2023, demanding (Nkambule) to appear in court in person.

Physically

Howe said the order did not state that Nkambule had to be in court physically. He said Nkambule could appear virtually. According to Howe, Nkambule is in the Republic of South Africa.

Judge Dlamini asked why Nkambule refused to come to court as per the order. Howe said Nkambule could not come to court.

“Why? Is it because of the warrant of arrest?” asked Judge Dlamini.

Howe said his client was concerned about his safety since there was violence when he left the country.

Judge Dlamini said the court wanted the exact reasons why Nkambule was avoiding coming to court, and that should be on an affidavit.

Howe told the court that they could explain why Nkambule was not coming to court.

“We would be grateful for that opportunity,” said Howe.

Judge Dlamini further enquired from Principal Crown Counsel Vikinduku Manana how come Nkambule or his attorney said they had never seen or were not aware of the warrant of arrest in question.

“What’s the secrecy around it? The court wants to see it as well,” said Judge Dlamini.

Defeat

The judge further said the court should not be used to defeat lawful processes. “If there is a warrant, let us see it so that we base our decision on something we have seen.”

The parties are yet to file heads of argument and the matter is returnable on May 14, 2024, to be argued.

Manana previously informed the court that the police, through a memorandum dated February 22, 2023, confirmed that there was indeed a warrant of arrest against Nkambule. According to Manana, Nkambule waited two months to challenge the warrant.

According to Manana, it was common cause that contempt charges were laid against Nkambule for failure to adhere to the order of December 12, 2022, and these could be gleaned from government’s founding papers.

“The police, through their memorandum dated February 22, 2023, confirmed that there was indeed a warrant of arrest against the first applicant (Nkambule). The horse has bolted and the hands of this court are tied as a subsequent step on criminal proceedings has been instituted against the first applicant,” said Manana.

Warrant

The principal Crown counsel further informed the court that the director of public prosecutions (DPP), who caused the warrant to be issued, had a substantial interest in the outcome of the case.

He said a warrant of apprehension in terms of Section 31(1) of the Criminal Procedure and Evidence Act 67/1938, was issued by the Manzini Magistrates Court on December 21, 2022.

As the case unfolded, according to Manana, Nkambule absconded and is now a fugitive of justice, and he deposed to his founding affidavit and replying affidavit in Johannesburg, Republic of South Africa on April 11, 2023, and July 10, 2023, respectively.

“The applicant is now approaching this court with dirty hands and seeks relief from the fountain of justice, yet his whereabouts remain unknown to the courts of the land.

Manana also argued that in terms of the rules, consent to an order should be made in open court.

Return

He submitted that on the return date of December 2, 2022, a certain Tfwala clearly stated in open court that his instructions were not to oppose the application. “Among other issues of record, he disclosed the need for the strike to go ahead.

“This led to the contempt charges preferred on the first respondent (Nkambule) dating back to as early as December 14, 2022,” said Manana.

The principal Crown counsel stated that there was a specific direction from the Industrial Court on how service of the processes in this matter should be effected.

He said the court directed that service should be effected by a sheriff, and compliance with this directive was followed.

At this point, according to Manana, Nkambule became aware that there were proceedings which were instituted against him.