Godfrey Mugari v Chinhoyi University of Technology

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Judgment No. CCZ 13/25
Constitutional Application No. CCZ 43/24
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REPORTABLE (9)

GODFREY     MUGARI

v

CHINHOYI     UNIVERSITY     OF     TECHNOLOGY

CONSTITUTIONAL COURT OF ZIMBABWE

GARWE JCC, HLATSHWAYO JCC & PATEL JCC

HARARE, 19 NOVEMBER 2024 & 29 JULY 2025

Applicant, in person

S. Mushonga, for the respondent

HLATSHWAYO JCC:

This is an application for direct access brought in terms of s 167 of the Constitution of Zimbabwe, 2013 as read with rule 21 of the Constitutional Court Rules, 2016. In the event that this application is granted, the applicant intends to apply for a declaratory order that the judgment of the Supreme Court under SC 126/23 violated his fundamental rights in terms of sections 56 (1), 68 (1) & (2) and 69 (2) & (3) of the Constitution.

The relief sought under the substantive application is couched in the following terms:

“1. 	An order declaring that my departure to China without authority and the actions of my legal practitioner did not waive my right to be heard or to challenge proceedings before the disciplinary authority.

2. An order declaring that the judge of the Supreme Court infringed on my rights enshrined in s 56 (1), s 68 (10 & (2) and  69 (2) of the Constitution and in the process created another infringement on my right to be heard and to access courts as enshrined on s 69 (3) of the Constitution.

An order granting me extension of time and leave to appeal to the Supreme Court.”

BACKGROUND FACTS

The applicant was employed by the respondent as a lecturer.  The respondent is a University. Sometime in March of 2018, the applicant applied for a UNESCO/CSC scholarship and requested the respondent to provide him with written consent authorizing him to go on study leave.  He avers that the written consent was provided by the then Deputy Registrar of the respondent, Mr Kaseke.  Sometime in August 2018, the scholarship was approved.  The applicant then approached Human Resources Department for final clearance for his trip to China.  The applicant alleges that the respondent started to raise issues in a bid to frustrate his trip to China. Indeed, in the runup to the China trip, the relationship between the applicant and the respondent was tense, with allegations of him leaking official information without authorization and of absenteeism.  In his founding affidavit the applicant attributes this tension to his activities and role as an employee representative and his having made allegations of corruption against senior management of the institution.

On 21 September 2018, the applicant approached the then Vice Chancellor, Prof. Muranda who then invited the institution’s Bursar, Senior Assistant Registrar and Dean of Students for a meeting. The applicant alleges that they reached a conclusion that there was no reason he should not be allowed to proceed with his studies.  He was then asked to wait for authorization of the trip in his office.

While waiting for the authorization, he says he was served with a suspension letter. The letter was served less than a day before his travelling date and after working hours. He argues that as it was on a Friday, there was no way of appealing his case so he continued with his trip to China. In his narration of the sequence of events he omits to point out that atmosphere surrounding the service of the suspension letter was confrontational. According to the ‘return of service’ scribbled at the bottom of the suspension letter filed of record, security personnel of the institution served the letter of suspension on him, he read it but refused to sign to acknowledge receipt and vowed not to comply with it, whereupon he was escorted off campus.

He alleges that on 1 October 2018, whilst in China, he received an anonymous call congratulating him for having had his suspension lifted.  He tried to confirm this by calling his residence to see if anyone had received any communication from the respondent and the response was negative. At this point, it is crucial to note that the respondent does confirm that the suspension was indeed revoked.  After four weeks, the applicant was invited for a disciplinary hearing, facing a charge of absenteeism and another of unauthorized release of confidential information. The applicant wrote his letter of defense and engaged a legal practitioner to represent him before the Disciplinary Authority. The strict instructions the applicant gave to his lawyer were that he would first seek a seven-month postponement of the matter until the applicant returned from China and, if such postponement was refused, he would tender the letter of defense, and then leave. The applicant says that he went to great length to ensure that the letter of defense was indeed received by the tribunal through his lawyer.

On the date of hearing, the request for postponement was refused and the legal practitioner handed over the letter of defense as instructed.  The letter was accepted.  The legal practitioner then excused himself from the proceedings after stating that he did not have further instructions from his client.  The Disciplinary Authority proceeded with the hearing in the absence of legal representation for the applicant and found him guilty of absenteeism from work, but acquitted him on the charge of unauthorized release of confidential information.  He was subsequently dismissed from employment.

Aggrieved by the outcome of the disciplinary proceedings, the applicant appealed to the internal Appeals Committee. In his grounds of appeal, he argued that the process was a nullity in terms of s 6 (2) of S.I 15/2006 which provides that the employer should investigate the matter and conduct a hearing within 14 working days following suspension. It was his argument that the hearing was held more than 30 days after his suspension. He further argued that the hearing was supposed to be an investigation of the charges levelled against him and a verdict would be given at a later date but, surprisingly, a verdict was given the same day. It was also his argument that, from the minutes of the hearing, it was not clear who was charging him on behalf of the University as the charges were laid out to him in a letter dated 31 October 2018 by Mr Kaseke who later turned out to be a witness as well at the hearing. He argued that Mr Kaseke was not a credible witness as his roles were conflicting and confusing. He also sought to challenge the testimony of Mr Kaseke on appeal specifically with regard to the alleged initial upliftment of his suspension. Further, he challenged the manner in which he was eventually suspended from work citing bad faith on the part of the respondent.

The internal appeal was dismissed and the decision to dismiss him from employment was upheld. He then appealed to a Labour Officer who upheld the Appeals Committee’s determination. Undeterred, the applicant then approached the Labour Court but without success. On further appeal to the Supreme Court, the proceedings before the Labour Officer and the Labour Court were nullified on the basis that the Labour Officer did not have the jurisdiction to entertain the appeal. Consequently, the matter was remitted to the Labour Court, whereupon the appeal was again dismissed.

Following the dismissal of the appeal, he applied in the Labour Court for leave to appeal to the Supreme Court.  However, before the hearing of the application, the applicant requested the labour court judge to recuse himself.  Both the request for recusal and the application for leave to appeal were dismissed.  The applicant then attempted to file an application to the Supreme Court.  However, being out of time to file the same, he sought condonation for the late filing of the application for leave to appeal in the Supreme Court (hereinafter “the court a quo”) under case number SC 458/23.  The applicant indicated before the court a quo that he intended to appeal against the judgment of the Labour Court on the basis that it erred by failing to uphold his grounds of appeal against the lower tribunals. He averred that he was denied the right to be heard or to respond to the investigations, the right to an informed response, the right to meaningful legal representation, the right to call witnesses and the right to request documents through which he could defend the charges against him.

FINDINGS OF THE COURT A QUO

The court a quo found that there was no plausible explanation for the delay in bringing the application. It found that the lack of explanation for some of the periods of delay was disconcerting. Indeed, the applicant appears to appreciate this lapse and belatedly tried to provide some explanation in his founding affidavit to this Court.

In assessing prospects of success, the court a quo held that the applicant was not denied the right to be heard by the circumstances of his legal practitioner of choice leaving the hearing before it concluded as he had no further instructions from his client. It found that the applicant’s legal practitioner of choice had an opportunity which was there for the taking to argue the case, call and even cross examine witnesses which he opted not to take. It also held that a suspension does not release an employee from his contract of employment or grant him the authority not to avail himself when required by the employer. In the result, it found that there were no prospects of success and went on to dismiss the application.

Consequently, the applicant has filed the present claim on the basis that the decision of the court a quo violated his fundamental rights in terms of Chapter 4 of the Constitution. He cited the right to be heard under section 69, the right to administrative justice under section 68 and the right to equal protection of the law in terms of s 56 (1) of the Constitution.

SUBMISSIONS MADE IN THIS COURT

At the hearing of the application, the applicant raised a preliminary objection to the effect that the notice of opposition is in violation of r 21 (5) of the Constitutional Court Rules, 2016 which requires to be stated therein the grounds upon which the respondent is opposing the application.

On the merits, the applicant submitted that he had no other recourse save to approach this Court because the Supreme Court had dismissed his application for leave to appeal. He further argued that the matter has prospects of success as it is clear that the court a quo erred in its finding that he had waived his right to be heard. Further, he alleged that the respondent presented a narrative that his legal practitioner had walked out of the disciplinary proceedings when in fact he excused himself. He averred that there is a difference between walking out and excusing oneself.

Furthermore, in motivating his prospects of success, the applicant argued that his purported suspension was allegedly lifted without conducting any investigations and this was an irregularity. It was the applicant’s contention that the court a quo failed to properly consider all the information placed before it, ultimately resulting in an infringement of his rights to a fair hearing, equal protection of the law and administrative justice.

Per contra, Mr Mushonga, for the respondent, argued that the applicant was afforded the right to a fair hearing as he was advised of his rights.  It was further averred that the applicant’s legal practitioner’s conduct was tantamount to a waiver of the applicant’s right to be heard. He argued that the right to be heard is not absolute as it can be waived.

Counsel for the respondent also argued that the applicant ought not to have gone to China whilst on suspension. He argued that the applicant was the author of his own predicament as he left the country without authority from his employer. He further contended that no constitutional issue arose for determination in this matter.

ISSUE FOR DETERMINATION

The issue that arises for determination is whether or not the court a quo grossly erred in its findings such that its decision violated the applicant’s constitutional rights.

THE LAW

The applicant raised a preliminary objection, but did not appear to strongly persist in it during the hearing, commendably preferring to proceed with the merits of the case to finality.  In the objection, he had contended that the notice of opposition was defective due to its failure to state the grounds for opposition, although the same were articulated in the affidavit, the provisions of the rule, r 21(5). are mandatory.  However, the respondent was blissfully oblivions of this lapse, and did not attempt to seek condonation.  Although, this is an issue that the Court can consider once it finds that the application itself has, on the face of it, met all the necessary requirements, the Court must take a dim view of the flagrant failure to comply with the Rules.  The Rules, of course, are made for the court, and not the other way round. Therefore, in the interest of finality of litigation and absent extreme prejudice occasioned on the other party thereby, it was deemed appropriate to condone the failure to comply with the rules but to impose an adverse order of costs on the respondent instead.

By comparison, in the case of Antech Laboratories (Pvt) Ltd v Permanent Secretary For Mines & Mining Development HB 19/20 at p 4, the court observed as follows:

Counsel referred to Mathonsi J’s (as he then was) remarks in Zimbabwe (Pvt) Ltd v Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) & 3 Ors HH-446-15 where at p 6 thereof the learned judge had this to say:

“I take the view that the rules of court are there to assist the court in the discharge of its day to day function of dispensing justice to litigants.  They certainly are not designed to impede the attainment of justice.  Where there has been a substantial compliance with the rules and no prejudice is likely to be sustained by any party to the proceedings, the court should condone any minor infraction of the rules.  In my view to insist on the grounds for the application being incorporated in form 29B when they are set out in abundance on the body of the application, is to worry about form at the expense of the substance.  Accordingly, by virtue of the power reposed [on] me by r 4C of the High Court Rules, I condone the omission.”

An application of this nature is governed by r 21(3) of the Constitutional Court Rules. The provision encapsulates the factors that ought to be satisfied before such an application is granted. It states thus:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out—

(a) 	the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) 	the nature of the relief sought and the grounds upon which such relief is based; and

(c) 	whether the matter can be dealt with by the court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Rule 21 (8) further provides for what the Court ought to consider when deciding whether or not it is in the interests of justice to grant an order for direct access. It provides as follows:

“In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may in addition to any other relevant consideration, take the following into account-·

the prospects of success if direct access is granted;

whether the applicant has any other remedy available to him or her

whether there are disputes of fact in the matter.”

In the case of Liberal Democrats & Ors v The President of the Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors 2018(2) ZLR 47 (CC), p. 54 this Court observed that an order for direct access is not just a mere procedure which is simply granted upon the mere asking. It held:

“Direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant rules of the Court.”

Further, I. Currie and J. De Waal in their book, ‘The Bill of Rights Handbook’ 6th Edition, (Cape Town: Juta & Company, 2013) at p. 128 explain this hypothesis as follows:

“The Constitutional Court is the highest court on all constitutional matters. If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction. Moreover, according to the Constitutional Court, it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters are decided without there being any possibility of appealing against the decision.”

I now turn to apply the law to the present application.

Whether or not there is a constitutional matter before the Court.

To bring a matter before this Court, an applicant must demonstrate that the Court has jurisdiction. The jurisdiction of this Court is strictly limited to constitutional issues involving the interpretation, protection, or enforcement of the Constitution, as mandated by s 167 (1) (b) of the Constitution. In the case of Crnkovic v Mpofu CCZ 2-24 p 9, the Court succinctly summarized the essential requirements that must be satisfied in order for an application for direct access to be granted. It held as follows:

“Broadly speaking, an application for direct access must reveal, prima facie, a constitutional matter that will engage the jurisdiction of the Court and the basis upon which it is contended that it will be in the interests of justice that the constitutional matter be dealt with at first instance by this Court. The intended application must enjoy some prospects of success when prosecuted upon the granting of leave.”

In light of this, the initial inquiry is whether this is a case which falls within the Court's jurisdiction.  Section 332 of the Constitution defines a constitutional matter as:

“a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

In the case of Sadziwani v Natpak (Pvt) Ltd & Ors CCZ 15/19 p.18 the Court elaborated the significance of the section and held:

“The Court is a specialist court and not a court of general jurisdiction. The principle of constitutional supremacy ensures that the jurisdiction of the Court, as defined in      s 167 of the Constitution, is narrowly defined and given constitutional protection. In addition, the very definition of a constitutional matter itself, in terms of s 332 of the Constitution, presupposes that not every matter is a constitutional matter. If the resolution of a matter does not require the protection, interpretation or enforcement of the Constitution, it is not a constitutional matter and the Court cannot assume jurisdiction over it.”

The applicant has approached this Court alleging that the decision of the court a quo had the effect of violating his right to equal protection of the law provided in terms of s 56 (1), right to administrative justice provided in terms of s 68 (1) & (2) and the right to a fair hearing in terms of s 69 (2) of the Constitution.

The applicant argues that the Supreme Court‘s judgment creates a wrong precedent that one loses his right to be heard and to challenge proceedings of a disciplinary hearing when he becomes unavailable to the employer after being suspended, regardless of whether the suspension is wrongful, void and illegal and regardless of the reasons for his unavailability and circumstances surrounding the case. He further argues that the court a quo’s decision creates the precedent that one’s right to be heard and to challenge proceedings of a disciplinary hearing are waived even when circumstances do not allow him to be present in a disciplinary hearing and he chooses to appoint a legal practitioner who upon delivering his mandate politely excuses himself from the proceedings for lack of any more instructions from the client.

In essence, the applicant contends that failure to attend a disciplinary hearing should not automatically be interpreted as a waiver of the right to be heard. He argues that such absence should not preclude him from challenging the outcome of the proceedings considering that his non- attendance was due to reasons beyond his control. It is on that basis that he alleges that his rights under s 56 (1), right to administrative justice provided in terms of s 68 (1) & (2) and the right to a fair hearing in terms of s 69 (2) of the Constitution were violated.

The sentiments echoed in the case of Meda v Sibanda & Others CCZ 10/16 at p 6 ought to be taken into account where it was held as follows:

“In this case, the applicant alleged in the founding affidavit that her right to property had been infringed. Whether her allegation is true or not is not the issue.  What matters is that she alleged a violation of a fundamental human right and as such the Court was properly seized with the matter.  The question of the veracity of the allegation would have been tested on the basis of evidence placed before the Court.”

In casu, it is apparent that the applicant raises issues concerning the proper interpretation of both the right to a fair hearing and the right to administrative justice. The events that unfolded before the disciplinary authority give rise to the critical question: when can the right to be heard and challenge a decision be deemed waived? A constitutional issue clearly arises for this Court's determination. While the strength and merits of the applicant’s arguments can be evaluated at a later stage, the Court’s jurisdiction has been triggered.

Whether it is in the interests of justice that the application for direct access be granted.

As has been noted earlier, an application of this nature requires that the applicant shows that it is in the interest of justice that the application be granted. The term ‘interests of justice’ was defined in the case of Bhamu v Mwonzora & Ors CCZ 14/23 at p 7 para 23 where the Court held:

“In Chamisa v Mnangagwa & Ors 2018 (2) ZLR 251 (CC) at 277A this Court held that the consideration of what is “just and equitable” and what is in the “interests of justice” involves giving effect to the values of procedural justice and fairness. The consideration of fairness is central to the interests of justice. See Mhora v Mhora CCZ– 5–22 at 11. The recognition of fairness as an essential component of justice is confirmed by the author L. Madhuku in An Introduction to Zimbabwean Law (2010) at 5, where he observes that: “The ‘difficulty’ with justice is that it is almost impossible to state exactly what it is. It is submitted that justice is fairness. That fairness lies at the core of justice is reflected in almost all attempts to define justice. The Oxford English Reference Dictionary (2003) defines ‘just’ as ‘acting or done in accordance with what is morally right or fair’ and ‘justice’ as ‘just conduct, fairness’. Black’s Law Dictionary (2004) states that justice is ‘the fair and proper administration of laws.”

The term “interests of justice” admits a flexible interpretation which is designed to the specific circumstances of each case. Notably, it is attached to principles of fairness and justice.  Under Rule 21(8), its scope is expanded by identifying several key considerations, most notably whether the matter has prospects of success. As such, when determining whether the interests of justice are served by permitting direct access, one must deliberately assess whether there are prospects of success under the substantive application.

Whether or not there are prospects of success

In the case of Zimbabwe Consolidated Diamond Company (Pvt) Ltd v Adelcraft Investments (Pvt) Ltd CCZ 2/24 p 11, the Court clearly defined what the term ‘prospects of success’ entails:

“The test for reasonable prospects of success postulates an objective and dispassionate decision, based on the facts and the applicable law, as to whether or not the applicant has an arguable case in the intended application should direct access be granted… There must be a sound rational basis for the conclusion that there are prospects of success in the main matter.”

The applicant has argued that it is in the interests of justice that this application be granted as the decision of the Supreme Court creates a wrong precedent upon which other courts will rely specifically that one’s right to be heard and to challenge proceedings of a disciplinary hearing are waived when circumstances do not allow him to be present at the disciplinary hearing. The circumstances which he refers to are those which he seemingly voluntarily created for himself. The applicant left for China without authorisation from his employer. Even when he was no longer under suspension he still failed to avail himself when he was called upon to do so.

In the case of Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (SC) at p 151 the Court highlighted that an employee who has been suspended has the obligation to avail himself for work when called upon to. It held:

“Plainly the obligation of an employee who is placed under suspension to hold himself available to performing his duties if called upon to do so, is one which arises by operation of law. It is of no consequence therefore that no provision in that regard is contained in the contract of service; and it is not necessary for the employer at the time of suspension to so inform the employee.”

Moreover, it must be pointed out that the applicant's argument that circumstances prevented his attendance is rendered illogical by the fact that he engaged a legal representative, who effectively represented him in his absence and in accordance with his strict instructions.  Thus, his failure to personally attend is no longer a relevant consideration, given that the applicant had chosen a legal representative to act on his behalf.

The applicant has further argued that he has prospects of success as the court a quo erred when it made a determination that his constitutional right to be heard and to challenge the disciplinary proceedings was waived by his legal practitioner’s decision to excuse himself.

The court a quo noted that at the disciplinary hearing, the applicant’s legal practitioner had requested a seven- months long postponement per the applicant’s instructions. This request for postponement was denied. It suffices to mention that the applicant was heard on the issue of postponement. The respondent exercised its discretion and opted to deny the postponement. The legal practitioner went on to present the applicant’s letter of defense to the charges. Thereafter, his legal practitioner left the hearing after indicating that he had no further instructions from the client. It was on this basis that the court a quo found that the applicant was afforded an opportunity to participate in the disciplinary proceedings and to challenge the evidence but waived that right. I am inclined to agree. But for its truncation by the strict but bizarre instructions of the applicant, the legal representation had so far been effective, leading to the acquittal of the applicant on one of the charges.

The legal practitioner voluntarily excused himself, despite being aware of the need to challenge the respondent's evidence and object to potential irregularities during the proceedings. The applicant tries to differentiate between walking out and politely excusing oneself but this does not help his case much. It does not take away the fact that the legal practitioner left the proceedings at some point. The consequences are the same.

Professor G Feltoe in the book, A Basic Introduction to The Administrative Law of Zimbabwe, provides at p 18 that the principle of natural justice can be waived when he says:

“Clearly when a person is offered the chance to exercise one of the rights recognized as being part of the principles of natural justice and he declines to avail himself of this right, then he has waived his right.”

This was affirmed in the case of Zesa Enterprises (Pvt) Ltd v Stevawo SC 29/17 at p 4, thus:

“The right to be heard is, however, not an absolute immutable rule of law. It can be waived or forfeited where the beneficiary is at fault…….” [my emphasis]

From the above, it appears that the right to be heard can be surrendered, either through waiver or through forfeiture. This difference is crucial and must be acknowledged. The Blacks law dictionary describes the term ‘waiver’ to mean ‘the voluntary relinquishment or abandonment-express or implied of a legal right or advantage.’ On the other hand, the term forfeiture of a right means –‘The loss of a right, privilege or property because of a crime, breach of obligation or neglect of duty.’ Waiver of a right involves voluntarily giving up a right either by express conduct or implied conduct whilst a forfeiture of a right involves the involuntary loss of a right as a consequence of one’s failure to timeously assert that right. In other words, one may say waiver is the cause or action and forfeiture is the effect, outcome or consequence.

Given this clarity, it is essential to understand the implications of waiving one's right to be heard. By waiving the right to be heard or to participate in the proceedings, one cannot later challenge the outcome on grounds that could have been challenged during the proceedings. The grounds of appeal before the Appeals Committee shed light on what exactly the applicant was challenging about the disciplinary authority's decision. These grounds reveal that he was raising issues that could have been raised had he attended the proceedings or had his legal practitioner remained to argue his case fully. Notably, he argued that the process was a nullity in terms of             s 6 (2) of S.I 15/2006 which provides that the employer should investigate the matter and conduct a hearing within 14 working days. He further challenged the fact that the verdict was given on the same day of hearing. He also sought to attack the credibility of a witness, Mr Kaseke - all of which issues he could have challenged had he been present at the hearing or had his legal practitioner argued the matter to its completion.

In the case of Moyo v Rural Electrification Agency SC04/14, the appellant failed to attend disciplinary proceedings against him. Instead, he left for South Africa despite knowing about such proceedings. He later elected to challenge the outcome of the proceedings arguing that the proceedings were irregular and unfair in that the appellant was not heard in person and the proceedings were not concluded within fourteen (14) days as required by s 6(2) of the Regulations. The Court held:

“In our view the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings.”

The Court concluded that once one deliberately fails to attend disciplinary proceedings, it follows that they cannot challenge any conduct which might have occurred during the disciplinary proceedings including the irregularities which they could have challenged had they attended the proceedings. This was also clearly articulated in the case of Pacprint (Pvt) Ltd v Kumbula and Ors SC 67/17 at p 6, where it was held as follows:

“In casu the mere boycotting of their hearings by the respondents disentitled them from challenging the outcomes of the hearings or any procedure that may have been adopted during the hearings. By their non-appearance, the respondents waived the right to defend themselves. On the other hand, by bringing the application for review they sought to defend themselves. In effect this translates to approbating and reprobating at the same time. The law does not countenance this prevarication. The two positions or stances are mutually exclusive and cannot co-exist.” [my emphasis]

The applicant cannot seek to challenge the manner in which the proceedings were handled after the fact. Therefore, it is evident that there are no prospects of success in this case. Taking all circumstances into account, the applicant has no arguable case in the substantive application. Neither the facts nor the law support his position. The applicant was fully afforded the opportunity to challenge both the disciplinary process and the evidence against him. However, he elected to participate only to the extent he preferred and then voluntarily abandoned the proceedings. Having taken that route, he cannot now seek to revisit or contest the conduct or result. It follows, therefore, that granting this application would not serve the interests of justice. The applicant cannot be permitted a second bite of the cherry by seeking to challenge proceedings in which he declined to fully participate. Further, granting this application will not be in the interests of justice as doing so would set a precedent among employees that they can easily sabotage disciplinary proceedings and later seek to challenge the outcome should it not be favorable to them. (see Pacprint (Pvt) Ltd v Kumbula & Ors SC 67/17).  However, the overriding rationale is not that of punishment of those who abandon, boycott or even sabotage disciplinary panels but that of protecting the carefully crafted legal machinery where issues are subjected to testing through a successive system of appeals and counter appeals – from the disciplinary panels through the internal appeals committees to the employment councils, where such exist, to labour officers, arbitrators up to the Labour court and all the way to the Supreme court.  If participants were allowed to pull out of these processes without consequence and subsequently seek a review of the very issues they should or could have argued and tested, then the whole labour dispute resolution mechanism would face certain collapse.

DISPOSITION

Whilst the right to be heard and administrative justice are fundamental, they can be waived through direct or implied conduct. The applicant had an opportunity to defend himself and he exercised that right by appointing a legal practitioner and providing clear, strict albeit bizarre instructions. By voluntarily walking out of the proceedings fully aware of the need to challenge the respondent’s evidence, the applicant, through his legal practitioner of choice, waived the right to participate and contest the outcome. Having relinquished that right, he may not now rely on arguments he could have presented during the proceedings. He cannot lodge these same arguments in another forum after having chosen not to fully engage during the initial proceedings.

Regarding costs, it is a general practice that costs are not granted in constitutional matters. There are no exceptional circumstances that would justify imposing costs on the applicant. As a self-representing litigant, he genuinely believed he had a prima facie case, and thus, the Court will not penalize him with costs.  However, the respond, by violating the rule relating to the form the notice of opposition ought to take and not even seeking condonation for the lapse deserves to be visited with an exemplary order of cost commensurate with the prejudice presumably suffered by the applicant and the disdain for the rules exhibited – all of which the Court estimates at the cost of that day’s hearing.

In the result, it is ordered as follows:

“(a) The application be and is hereby dismissed;

(b)  Subject to (c) below, each party shall bear its own costs, and

(c) The respondent shall pay the applicant costs of the hearing by this Court on 24 November, 2024 on the ordinary scale.”

GARWE JCC		: 	I Agree

PATEL JCC		: 	I Agree

Mushonga Mutsvairo & Associates, Respondent’s legal practitioners