Eswatini Social Partners Challenge ENPF Board Chairman's Appointment

At least six business and labour organisations in Eswatini have filed a court challenge against the appointment of Sicelo Wilson Dlamini as chairman of the Eswatini National Provident Fund (ENPF) Board. The organisations, including the Federation of Eswatini Business Community (FESBC) and the Trade Union Congress of Swaziland (TUCOSWA), argue that the minister of labour and social security bypassed statutory procedures when designating Dlamini to the position. They claim that the minister's actions were irregular and failed to follow the procedure prescribed by Section 8(4) of the Retirement Funds Act.

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. They argue that Mndawe's dual responsibilities create an inherent conflict of interest, as he would be involved in decisions affecting the fund as a board member and also be responsible for overseeing the fund as a principal secretary in the ministry. The applicants contend 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.

According to the court papers, the minister announced the appointments of the new board on October 28, despite being aware that the legality of the proposed board changes was already before the court. The applicants argue 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 claim 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 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. The recommendation stated that the minister should designate the chairperson from amongst duly constituted board members in accordance with the spirit of the order and the established tripartite governance convention of rotational leadership among the social partners.

The organisations challenging the appointment include FESBC, its President Prince Themba Dlamini, Business Eswatini CEO E. Nathi Dlamini, TUCOSWA, and the Federation of Swaziland Trade Unions (FESWATU). They 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. The applicants argue that the minister's announcement of the new board introduced developments that were not available when the original proceedings were instituted.

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. They also want the court to admit supplementary affidavits and resolutions from the organisations authorising the institution of the legal proceedings. The applicants accuse the minister of proceeding with the board appointments despite being served with court papers challenging the proposed changes.

The challenge is part of an ongoing case before the High Court, with the applicants seeking to formalise the participation of FESWATU in the proceedings. FESWATU has a direct and substantial interest in the matter, as the ENPF governance framework provides for three board members representing employees across the country. The organisations are represented by FESBC Chief Executive Officer Ben Simelane, who explained that the original urgent application was prepared under severe time constraints, making it difficult to include all the supporting documents.

Key points

• The organisations are challenging the appointment of Sicelo Wilson Dlamini as chairman of the ENPF Board, citing irregularities in the appointment process.
• The applicants also want the appointment of Makhosini Mndawe as a voting member of the Board reviewed, citing an inherent conflict of interest.
• The challenge is part of an ongoing case before the High Court, with the applicants seeking to formalise the participation of FESWATU in the proceedings.