At least six business and labour organisations have approached the High Court seeking to challenge the appointment of Sicelo Wilson Dlamini as chairman of the Eswatini National Provident Fund (ENPF) Board. They argued that the minister of labour and social security bypassed statutory procedures when designating him to the position.
The organisations also want the appointment of Principal Secretary in the Ministry of Labour and Social Security Makhosini Mndawe as a voting member of the Board reviewed and set aside, arguing that his dual responsibilities create an inherent conflict of interest.
The challenge is contained in a supplementary founding affidavit filed by the Federation of Eswatini Business Community (FESBC) Chief Executive Officer Ben Simelane in the ongoing case before the High Court.
The applicants are FESBC, its President Prince Themba Dlamini, Business Eswatini CEO E. Nathi Dlamini, the Trade Union Congress of Swaziland (TUCOSWA) and the Federation of Swaziland Trade Unions (FESWATU).
They are challenging decisions surrounding the constitution and composition of the ENPF Board, including the exclusion of certain business representatives and the appointment of individuals whose positions they argue are inconsistent with the applicable governance framework.
In their latest court papers, the applicants are seeking permission to introduce additional evidence and amend their original notice of motion to include a prayer specifically challenging Sicelo Wilson Dlamini’s appointment as chairman.
They argue that the minister’s announcement of the new board on October 28 introduced developments that were not available when the original proceedings were instituted.
According to Simelane, the minister announced the appointments despite being aware that the legality of the proposed board changes was already before the court.
The applicants contend that the appointment of Sicelo Wilson Dlamini was irregular because the minister allegedly failed to follow the procedure prescribed by Section 8(4) of the Retirement Funds Act.
They argued that the provision requires a two-stage process in which board members first elect an individual to serve as chairman before the minister exercises the power to appoint that person.
“The minister’s power to appoint the chairman is not an independent or unfettered discretion to select and designate any person of his choice,” reads the affidavit.
The applicants maintain that the minister announced Sicelo Wilson Dlamini as chairman without an election having first taken place among the board members.
They further argued that the appointment departed from an established governance arrangement in which the chairmanship rotates between representatives of employers and employees.
According to the affidavit, this arrangement is intended to maintain balanced participation by the principal stakeholders in the administration of the fund.
The applicants also rely on findings by a parliamentary committee, which investigated the governance and composition of the ENPF Board.
The committee reportedly recommended that the minister reconfigure the board and regularise the appointment of its chairman.
Part of its recommendation stated, “The minister should thereafter designate the chairperson from amongst (duly) constituted board members in accordance with the spirit of paragraph 1 of the first schedule of the order and the established tripartite governance convention of rotational leadership among the social partners,” reads part of the recommendation.
The applicants argued that the latest appointment disregarded this recommendation and the established arrangement for rotational leadership.
They also want Mndawe’s appointment reviewed, arguing that his position as principal secretary in the ministry responsible for overseeing the ENPF creates an institutional conflict of interest. Simelane argued that Mndawe would participate in decisions affecting the fund as a board member while also being involved in the ministry’s oversight of the same institution.
The affidavit states that matters concerning the ENPF board, including investment policies, executive appointments, budget approvals and compliance with legislation, fall within the oversight responsibilities of the ministry.
The applicants argued that this arrangement could place Mndawe in a position where he participates in decisions at board level and subsequently becomes involved in evaluating or advising the minister on those same decisions.
They describe the situation as an inherent conflict between his responsibilities as a board member and those of principal secretary.
“The principle nemo iudex in sua causa, that no person should be a judge in his own cause prohibits a decision-maker from occupying a position in which he is required to oversee, evaluate or determine matters in which he has previously participated in a different capacity,” he said.
The applicants further argued that although the ENPF order permits the appointment of two public officers to the board, the minister is not entitled to exercise that power without considering the consequences for good governance and institutional independence.
Meanwhile, the organisations are seeking to formalise the participation of FESWATU in the proceedings after it was joined as the sixth applicant on October 28.
They argued that the federation has a direct and substantial interest in the matter because the ENPF governance framework provides for three board members representing employees across the country.
Together with TUCOSWA, FESWATU represents organised labour and the interests of employees in the governance of the fund.
The applicants are also seeking to amend the citation of Mndawe to reflect his official capacity as PS, rather than citing him in his personal capacity. In addition, they want the court to admit supplementary affidavits by Simelane and Mduduzi Gina, as well as resolutions from the organisations authorising the institution of the legal proceedings.
Simelane explained that the original urgent application was prepared under severe time constraints, making it difficult to include all the supporting documents, particularly organisational resolutions.
He argued that allowing the additional affidavits would not prejudice the respondents because they would still have an opportunity to respond.
The applicants also accuse the minister of proceeding with the board appointments despite being served with court papers challenging the proposed changes.
Although Simelane acknowledged that no interdict had been granted to stop the appointments at the time, he argued that the Minister was still expected to respect the pending court proceedings.
“The election by the first respondent to proceed with and publicly announce the appointment of the board, notwithstanding that he had already been served with court process, was with respect, calculated to undermine and pre-empt the court proceedings,” he stated.
The applicants want the court to review and set aside the exclusion of FESBC and E. Nathi Dlamini from the ENPF Board, Mndawe’s appointment as a board member and Sicelo Wilson Dlamini’s appointment as chairman.
They are also seeking permission to amend their original application to incorporate the additional relief and allow the respondents to file answering affidavits.
The matter remains before the High Court, and the allegations and grounds for review contained in the supplementary affidavit are the applicants’ submissions, not findings by the court.
