ESWATINI Post and Telecommunications Corporation (EPTC) has argued that Parliament has no powers or oversight over individual contracts of employment under any of the three arms of government.
This was the central submission made yesterday by EPTC’s legal representative, Mxolisi Dlamini of Dynast Inc, during arguments in the urgent application brought by the Swaziland Communications and Allied Workers Union (SCAWU).
SCAWU, represented by Banele Gamedze of Musa M. Sibandze Attorneys in Association with Banele Gamedze, is acting on behalf of 31 former EPTC employees whose fixed-term contracts expired earlier this year but who were later retained under what the employer termed a special dispensation.
The employees were informed on November 25 that the dispensation would end on November 30, effectively terminating their employment. They rushed to court seeking to interdict the termination, arguing that EPTC had submitted itself to Parliament’s process and that, by keeping them beyond the expiry of their contracts, the employer had tacitly renewed their employment.
SCAWU’s primary argument is that EPTC cannot now claim independence from Parliament, because it had voluntarily aligned itself with a Parliamentary enquiry into the corporation earlier in the year.
In its heads of argument, the union pointed to the employer’s own letters, which extended employees’ stay beyond contract expiry specifically “to align with the completion of the assignment by Parliament.”
According to the union, a letter dated March 31 stated that, “As a special dispensation to the motion passed in Parliament, you will be allowed to work for a period exceeding one month from the lapse of your employment contract.”
It also disclosed that a later letter on April 30 read, “In line with the extension by Parliament you shall be allowed as a special dispensation to attend work until the 16th May 2025 to align with the completion of the assignment by Parliament.”
SCAWU argued that this showed a clear election by EPTC to abide by Parliament’s process.
Citing the Mafika Ndzimandze v SRA judgment, the union submitted that a party cannot approbate and reprobate which is to take one position and later shift to the opposite.
The union further argued that there is no evidence that Parliament ever concluded its work.
The select committee’s report explicitly stated that it still required adoption by the House of Assembly and implementation by the Minister of ICT.
“In the absence of proof that the parliamentary exercise has been finalised, the decision to terminate is irrational,” Gamedze argued.
The second pillar of SCAWU’s case is that the employees’ contracts were effectively tacitly renewed. After the special dispensation lapsed on May 16, there was no further communication from the employer, yet the employees continued working and were fully remunerated until the end of November.
Citing the Myengwa Sibandze v National Football Association case, the union argued that where an employee remains in service and is paid after expiry of a fixed-term contract, this amounts to tacit renewal, unless the employer clearly states otherwise.
SCAWU argued that the employees worked for over seven months without any written dispensation, a period too long to be explained as an extension linked to Parliament.
The union also raised the issue of the EPTC, Nedbank loan scheme, pointing to loan statements showing repayment terms running until 2029.
It argued that an employer would not reasonably enrol fixed-term employees into long-term loan facilities unless there was an expectation of continued employment.
SCAWU asked the court to declare that the contracts were tacitly renewed for an indefinite period, and to set aside the termination letters with costs.
In response, EPTC submitted that the application was defective for non-joinder, because SCAWU had not formally cited the 31 affected employees or the Minister of ICT, despite a previous court order directing them to do so.
EPTC argued that attaching a list of workers and confirmatory affidavits did not meet the legal standard for joinder under Rule 23 of the Industrial Court Rules.
Turning to the merits, the corporation argued that the employees were on fixed-term contracts, all of which ended by March 2025.
The special dispensation did not renew the contracts; it merely allowed the employees to remain temporarily while Parliament examined issues relating to the corporation. Dlamini emphasised that the dispensation was created because EPTC is a Category A Public Enterprise, and the employees in question were not budgeted for beyond March 2025.
The extension was therefore conditional, exceptional and not indicative of any intention to renew employment.
“By May 2025, the contracts had already come to an end. They cannot be resurrected by Parliament or by this court,” Dlamini argued.
He distinguished Myengwa Sibandze, saying that tacit renewal only arises where there is no explanation for continued work. In this case, the explanation was the parliamentary enquiry.
On the matter of Parliament’s role, Dlamini submitted that the legislature cannot interfere in individual employment contracts and that any parliamentary recommendation touching on the loan scheme was an overstep of its mandate.
EPTC further argued that the applicants should have taken the matter to CMAC as a normal unfair-dismissal dispute, as required under Part 8 of the Industrial Relations Act, and the court therefore lacked jurisdiction. The corporation asked the court to dismiss the application.
