Mbabane – Industrial Court Judge Abande Dlamini has dismissed unionist Sticks Nkambule’s application to appear in court virtually in a matter that coincided with the 2021/22 Eswatini civil unrest.
In a ruling on the virtual appearance of Nkambule, the Swaziland Transport Communication and Allied Workers’ Union Secretary General, the court found his application baseless.
It follows Nkambule and the union in the citation, Sticks Nkhambule and Others v Minister of Labour and 3 Others filing an urgent application in 2022, requesting that the court rescind and set aside orders granted to the Minister of Labour and Social Security to interdict a strike dupped total shutdown planned by at least three workers’ unions: the Swaziland Transport Communication and Allied Workers’ Union, the Eswatini Kombi and Buses Workers Allied Union, and the Swaziland Commercial Amadoda. 
The judge heard and delivered his judgement on June 4, stating that the court marathon began on December 9, 2022, when the Minister of Labour and Social Security, Phila Buthelezi, filed for the restraining order.
The unions and their members or anyone acting at their behest or in concert with them were to be interdicted and restrained from embarking on or going on with, promoting, encouraging, supporting or participating in the strike action called by the Respondents and engaging in any form of a march, public transport disturbance, strike action or protest on or about 13th December, 2022, or any other future date, among other prayers which were granted unopposed a day before the planned strike with the interim orders later confirmed.
The orders given also resulted in Nkamnbule being added to the list of fugitives, and the Royal eSwatini Police Services issued an arrest warrant in his name. Nkambule would then file a new application on April 20, 2023, seeking rescission and setting aside the orders.
The court noted that this was four months after Nkambule was declared sought.
He claims in his founding affidavit that he was never served with the initial court application or the interim orders issued on December 9, 2022, and that he only learned of the final order and the warrant for his arrest from the newspapers at the time.
Nkambule said this did not make him contemptuous to the court and that when he did his investigations, the police confirmed that indeed there had been a warrant of arrest against him.
He said he never got to see a copy of the warrant. His case seemed to be a shocker, with Nkambule saying that on the days when he ought to have appeared in court, he was engaged on union duties. He accounts for December 12, 2022, when the final order was granted, saying he was in the Lubombo Region attending to matters relating to the Swaziland Transport Communication and Allied Workers’ Union.
He said a certain Shabangu police officer called him to come collect a court application, but he advised him that it was the sheriff’s duty to serve him with the papers and gave the name of Deputy Sheriff Silence Gamedze.
But Judge Dlamini said the union decided that they would not oppose the minister’s application.
“I say they decided they would not oppose the application by the minister because even after being served with the initial application and the interim court order of this court, they never showed up in court to file their opposition.
“Perhaps another interesting fact I should bring to the fore is an interaction I had with one of the 2nd Respondent’s previous representatives, Mr Basil Tfwala. This was on Monday the 12th of December 2022. This is how the interaction with Mr Tfwala unfolded: the matter was called, and the names of the respondents were called out by the court orderly, Officer Constable Sikhondze, outside court. They were each called out 3 times, and there was no response from all the respondents,” the judge said.
The judge stated that he was informed that the People’s Democratic Movement (PUDEMO) had resolved not to contest the Minister of Labour and Social Security’s urgent application and following court orders, which would be publicly disobeyed.
Judge Dlamini stated that such a posture “was a direct affront to the rule of law”.
He also stated that the return of service of court orders made by Mr Silence Gamedze, the deputy sheriff of the High Court, shows that Nkambule and the unions were served on December 9th, 2022.
“Mr Sticks Nkambule was served with the court order, and in fact he accepted service of the court order in his capacity as the secretary general of the union, Swaziland Transport and Allied Workers Union, at the place of business of the union, this being at the Manzini Post Office building. He accepted service for himself, as Secretary General of the Union (1st Respondent), and for and on behalf of the Union itself, the Swaziland Transport and Allied Workers’ Union (2nd Respondent),” the judgement reads.
For the Eswatini Kombi and Buses Workers Allied Union, a certain Musa Stewart received the application and court orders at the President Centre.
Judge Dlamini said Nkambule laid complaints, including that he was cited alone without other secretaries general of the unions in the application and that this had malicious intentions of singling him out for reasons unknown to him. The judge took a swipe at the alleged adoption of a wait-and-see attitude by Nkambule.
“They wanted to openly defy whatever orders were going to be issued by this court. Indeed, and true to their threat, after the issuance and confirmation of the interim orders of this court, Mr Sticks Nkambule was all over the media, online and the traditional media platforms, informing members of his union and the other unions cited in these proceedings that ‘…all engines would not be running…’ (in vernacular he said ‘…tonkhe tinjini tiyacima’) on the dates proposed for their strike action, this being the 13th of December 2022,’ the judge said.
The judge further stated that on December 12, 2022, he received a phone call from a South African number that he identified as belonging to a certain Zweli Martin Dlamini, the editor of the online website ‘Swaziland News’, but did not answer it.
The judge stated that worried friends and family approached him for clarification on outstanding concerns, accompanied by screenshots of Facebook posts bearing his name and including elements of threat.
“I perhaps say threatened; indeed, the court order of 12 December 2022 was openly defied by all the respondents in the main application,” he said.
In opposing the rescission and set-aside application, the minister of labour and social security raised that the time lapse of four months before Nkambule launched their application was academic and that there was the non-joinder of the director of public prosecutions in this rescission application after the office applied for Nkambule’s arrest warrant.
Judge Dlamini said Nkambule did not seem to be challenging his arrest warrant.
“No! Mr Nkambule here is seeking to rescind the final orders issued by this court on 12 December 2022. Accordingly, this point of law, as raised, is without merit and as such stands to be dismissed,” he said.
The court stated that evidence shows that Nkambule continued to issue statements against the court’s order and promoted participating in, encouraging, or inciting members of the public transport organization to participate in a national public transport shutdown after this court issued a final order stopping the shutdown on December 12, 2022.
Nkambule supplemented his application, opting to appear in court virtually, citing fear for his life. Nkambule informs the court about armed police officers who had invaded his home in unmarked vehicles, some bearing foreign registrations, looking for him. The court said he did not present enough evidence when it asked for the names of his informants because he fears that he will expose them to danger.
“The court wonders, therefore, how reliable Sticks Nkambule’s informants are if they are nameless.
“From where I am seated, it would seem that Mr Sticks Nkambule wants to use the virtual court appearance procedure to avoid accountability. This is in the sense that he wants to use the remote appearance procedure to ‘appear’ before this Court without subjecting himself to the active warrant of arrest pending against him. ” This the court will not allow,” Judge Dlamini said
