The High Court of Eswatini has granted an urgent interim order to halt the inauguration and public announcement of the Eswatini National Provident Fund (ENPF) Board. This decision was made following an urgent application by the Federation of Eswatini Business Community (FESBC), Business Eswatini, and the Federation of Eswatini Trade Unions (FESWATU). They challenged the decisions made by Minister of Labour and Social Security Phila Buthelezi regarding the composition of the board.
The applicants, represented by attorneys from Robinson Bertram, specifically challenged the exclusion of their nominees, Themba Dlamini and E. Nathi Dlamini, and the appointment of Makhosini Mndawe, the ministry's Principal Secretary, to the board. The court order was granted by Judge Maxine Langwenya, and the matter is set to return to court on November 11. The dispute arose after the minister scheduled the inauguration and public announcement of the new board, prompting the applicants to seek urgent intervention.
According to the founding affidavit submitted by FESBC Chief Executive Officer Ben Simelane, the planned inauguration could prejudice the applicants while their challenge to the nomination and appointment process remained unresolved. The applicants argued that they could not afford to pursue the matter through ordinary court procedures, as it might only be heard after approximately three months, potentially allowing the board to make financial and strategic decisions.
The dispute centers on the nomination process for the ENPF board, which is governed by the Eswatini National Provident Fund Order of 1974. The applicants contended that the nomination process should respect the statutory provisions and the established rotational arrangement for nominating representatives. They claimed that FESBC was entitled to nominate a representative but was not invited to submit a name, and instead, the minister requested the Business Federation of Eswatini (BUFE) to make the nomination.
The applicants also questioned the appointment of Principal Secretary Makhosini Mndawe to the ENPF board, citing potential conflicts of interest. They argued that Mndawe's simultaneous roles as PS in the ministry responsible for the fund and as a board member could compromise the separation between the board's decision-making responsibilities and the ministry's oversight and administrative functions.
The dispute follows the dissolution of the previous ENPF board in July, after concerns were raised about irregularities in the appointment of certain members, including its chairperson. A parliamentary inquiry examined the appointments and recommended that the minister take appropriate steps to address the identified irregularities. The minister subsequently dissolved the entire board through an instrument dated July 29.
The court's decision to grant the urgent interim order highlights the complexities and challenges in the appointment process of the ENPF board. The applicants are seeking to have the minister's decisions declared unlawful, irrational, and invalid, arguing that they departed from the statutory framework governing the ENPF board and the established arrangements for nominating representatives.
Key points
- The Eswatini High Court has halted the inauguration of the ENPF board due to disputed appointments and exclusion of nominees.
- The applicants challenged the exclusion of their nominees and the appointment of the ministry's Principal Secretary to the board.
- The dispute highlights the complexities and challenges in the appointment process of the ENPF board, with implications for corporate governance and the fund's operations.
