Admire Kudakwashe Munokwenyu v National Prosecutution Authority & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/153/25
LCH946/24( REVIEW) AND LCH945/24 (APPEAL)
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 7 NOVEMBER 2024

ADMIRE KUDAKWASHE MUNOKWENYU

JUDGMENT NO LC/H/153/25 LCH946/24( REVIEW) AND LCH945/24 (APPEAL)

APPLICANT/APPELLANT

And

NATIONAL PROSECUTION AUTHORITY

TAFADZWANASHE MUPARIWA N.O

1ST RESPONDENT

2ND RESPONDENT

Before the Honourable Kudya J;

For the Applicant/Appellant

For the Respondents

- Mrs. Z. Majena, Legal Practitioner

- L. C. Garakara and C. Makorokotera, Legal Practitioners

KUDYA J:

This judgment deals with issues arising out of an application for review LCH946/24 and appeal LCH945/24. These matters were filed with the Labour Court by the applicant employee following his dismissal from employment by the National Prosecution Authority (NPA) where he was employed. For expediency both the review and the appeal were heard on the same day. The decision to entertain both matters at the same time arose from the realisation that a decision on the review would render the decision of the appeal moot.

Facts giving rise to the 2 matters are that theemployeeAdmire who was in the employment of the National Prosecution Authority was accused of having been away from work without official

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leave for a continuous period in excess of 30 days that is from 17 June 2024 to 31 July 2024. The National Prosecution Authority invoked Section 59 of Statutory Instrument 85/15. The National Prosecution Authority in a letter dated 2 August 2024 advised Admire of his dismissal in terms of the above quoted Section. Admire was not happy about his dismissal. He therefore filed the review and the appeal which are the subject of this judgment. He filed with the court a single review ground styled as follows: -

“The respondents’ decision to discharge the applicant was grossly irregular as the constitutional and administrative law principles of natural justice werenot extended to him. Particularly, because;

a). No disciplinary committee was set up to hear the allegation of misconduct against the applicant.

b) No investigations were conducted prior to and after the allegation of misconduct.

c) No disciplinary hearing was conducted to determine the guilt or otherwise of the applicant.

d) Applicant was not given notice of the intention to discharge him or the opportunity to make representations in the matter before the adverse decision was made.

In the result, the applicant prayed that, the review application be granted, the decision of the respondents dated 2 August 2024 discharging him from employment be set aside in its entirety and be substituted by an order reinstating him to his original position without loss of pay and benefits or that he be paid damages in place of reinstatement if reinstatement is no longer tenable. He also prayed for costs on an attorney client scale.

In response to the review, the National Prosecution Authority stated in limine that the review application was improperly before the court as it was not filed using the correct form set out in the rules of court. It therefore prayed that the applicant regularises that anomaly before the application could be heard.

On the prospects of the review application, it reasoned that: -1. The review is meritless.

2. Applicant was properly discharged on the strength of evidence supporting his discharge.

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3. Applicant was discharged per Section 59(1) of Statutory Instrument 185/15. He was absent from duty from 17 June 2024 to 31 July 2024 continuously without leave of absence from duty.

4. Applicant did not tender a valid certificate of leave. The certificates which he tendered do not show that he was granted leave. The letter of 8 July 2024 by the chairman of the Board does not prove that he was on duty. It was written because he was still in employment.

5. Applicant conceded that there was no communication that leave was granted or approved. The concession is fatal to his review application.

6. There is no evidence that he reported for duty over the period in question.

7. Applicant’s absence was distinct from the absence set out in the 3rd Schedule. Section 59 is not subject to the 3rd Schedule so the act was not a misconduct act.

8. Section 61 of the Regulations allows a departure from provision under part IX and X as regards applicant’s entitlements.

In the result, the respondent employer prayer that the review application be dismissed for lack of merit. On the hearing date, the applicant persisted with his review prayer and the appeal prayer.

On the other hand, the employer persisted with its prayer that the review and the appeal be dismissed for lack of merit.

The employee in his heads of argument prayed that, the matter be treated as unopposed on account of the fact that there was no proper resolution authorising the deponent to depose to the opposing affidavit, that the deponent did not state the authority under which he was deposing to the opposing affidavit, that the 2nd respondent had been cited as a respondent yet he was also the decision maker thus blurring the lines of impartiality. The employee finally stated that there was no hand written date on the affidavit so it was irregular to that extent. As regards the point in limine, on form he stated that the challenger did not set out relief sought so it was incompetent.

The points in limine are addressed first before the merits of the matters.

Absence of opposition on the matter

The basis upon which the applicant sought that the matter be treated as unopposed deserves no repetition as it is already set out above.

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Authority to depose to affidavit.

In its heads of argument, the employer stated that the 2nd respondent being the Secretary of the 1st respondent was authorised by a board resolution of 25 March 2024 to depose to the opposing affidavit. This was in compliance with the legal position set out in Dube v PSMAS SC79/19. On the date of the hearing. the position as set out by the employer in its heads as stated above was not controverted thus putting to paid the resolution argument.

Improperly commissioned affidavit

The employee states that the Commissioner of oath’s date is not hand written but computer generated. It is settled that an affidavit has to be properly commissioned. See Saripo v William HCH93/23. There is however no law that requires the date to be only handwritten. The argument lacking in legal foundation should fail.

Wrong form

The employer says the employee wrongly filed his review as he should have done so on LC4 and indicate the composite nature of the application. The employer rightly responded that since no relief is sought from thatobjection it should therefore not detain the court. Itis settled that technical objections not dispositive of a matter on the merits should be avoided. See Mapondera v Fredda Rebecca SC81/22. It is clear that, whether the applicant joined the 2 or separated them such was inconsequential. The objection being without merit therefore fails.

Merits

On the merits, the law as set out in Section 59(1) of the regulations is without doubt. On account of the authority of Mwanyisa v Minister of Finance SC-6-02 the employer can indeed dismiss an employee without a hearing as set out in Section 59(1) above. The problem with the matter at hand is that the facts in the instant case are distinguishable from the facts in Mwanyisa (Supra). In Mwanyisa’s case, it was settled that, he had been absent for the continuous alleged period without excuse or leave. In the case at hand there is clear contest as to what period the employee was away. The record is replete with evidence that the employer was in communication with the employee to the extent that there is evidence on both records that the employer knew where appellant was and that he was ill as confirmed by the people that were sent to see him.

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In the appeal record, there is even a letter which shows that during the alleged period the employee was called to attend a workshop. The facts of the case at hand are clear that there was communication between the parties so there is no abscondment to talk about.

In any event, is it a contested issue as to what period the employee was away. It was therefore irregular for the employer to try and apply Section 59(1) on facts which were clearly contested. It was therefore imperative for the employer to invite representations from the applicant when it had made up its mind to dismiss him. They knew very well where he was so nothing stopped them from inviting him for such representations. See Maruzani v Minister of Lands Masvingo High Court 17/23.

It is clear that Section 59(1) was wrongly applied to the facts of the case at hand. Its application was null and void. See McFoy v United Africa Company Ltd 1961All ER1169 on nullity. In the ultimate, the court is satisfied that, a good case for review was made out by the applicant. The review should succeed. The success of the review application therefore renders the determination of the appeal moot and academic

IT IS ORDERED THAT:

1. Review application being merited it be and hereby succeeds with costs.

2. Decision of 21 August 2024 dismissing applicant be and is hereby set aside. In its place applicant is reinstated to his job from date of dismissal 17 June 2024 with full pay and benefits.

3. If reinstatement is no longer feasible the employer is to pay the applicant damages in place of reinstatement in a sum to be agreed upon between the parties or to be set by the court.

4. Appeal be and is hereby struck off the roll as it has become moot and therefore academic following the success of the review application.

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Majena Chigumbe Danha Attorneys- Applicant’s Legal Practitioners Sinyoro and Partners- Respondents’ Legal Practitioners

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