Linda Chivero & Anor v Chitungwiza Central Hospital & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO.LC/H/297/23
HARARE, 29TH, SEPTEMBER, 2023
CASE NO. LC/H/570/23 AND 4th, OCTOBER, 2023
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO.LC/H/297/23 HARARE, 29TH, SEPTEMBER, 2023		CASE NO. LC/H/570/23 AND 4th, OCTOBER, 2023

LINDA CHIVERO	1st Applicant

GLADYS GUNIKA	2nd Applicant

And

CHITUNGWIZA CENTRAL HOSPITAL	1st Respondent

THE HEALTH SERVICE COMMISSION	2nd Respondent

M. CHIWANGA	3rd Respondent

Before the Honourable Kachambwa, Judge;

(IN CHAMBERS) KACHAMBWA, J:

The Dismissal

On the 24th of July 2023 this court dismissed the applicant’s urgent chamber application. The application was filed on the 22nd July 2023 and the hearing subject of the application was on the 26th July 2023.

The Application

In their founding affidavit the applicants say that;

“This is an urgent chamber application for review against (sic) the 1st

Respondent (‘s) decision of extending our suspension from employment and calling us for a further hearing on the same charge (that) we were found not guilty of by a fully constituted disciplinary committee. We are urgently seeking for an order uplifting the purported extension of our suspension from the 1st Respondent’s employ (ment) and for stay of the intended hearing which is scheduled for 26 July 2023 pending the confirmation of the provisional order”.

The applicants argued that the decision to further suspend them and go on to hold a hearing on the same charges was grossly irregular. They wrote to the respondent pointing out the irregularity and asking it to stop the process. The respondent did not oblige hence the urgent chamber application.

In their final order the applicants sought to have the respondent’s decision to further suspend and call the applicants to a hearing set aside. In the interim they wanted the setting side of the decision to further suspend them and that they be allowed to go back to work. They also asked for a stay of the intended hearing proceedings pending the confirmation of the provisional order.

The court dismissed the urgent chamber application. The applicants asked for reasons thereof to enable them to consider an appeal.

The Reasons For Dismissal

Looking at the application one sees that the applicants do not want to be tried again because they have a defence called autrefois acquit that is to say that

they have already been tried and acquitted on the same charge(s) and facts. It is a defence. See S v Ndou & Ors 1971(1) SA 668 (A). Instead of raising this defence before the tribunal set up to hear their case they want to bring that case before this court and present their defence. That is a clever way of avoiding the local forum. They should present themselves before their local forum and if their defence is rejected they may then appeal to this court. To allow everyone who is of the view that he/she is being unprocedurally subjected to a hearing, to apply for a review of the decision, and to stop the hearing, would take away the employer’s discretion to charge and hear cases. It would encourage the genesis of chaos. The decision should be challenged in the local forum and an appeal or review may thereafter be brought before this court. This cannot be an urgent matter.

In the circumstances this application is not urgent. Secondly it is not even necessary. Thirdly, it involves an issue that should be resolved in the very forum that the applicants are seeking to avoid. Consequently the urgent application must be dismissed.

There is no urgency at all. If the applicants still want to be heard let the application be set for review as an ordinary application. It will have to be before a different Judge. However it is hoped that the impending hearing will have resolved this issue.

In the result the court holds that the application is not urgent. It is accordingly removed from the roll. It is held as follows;

The urgent chamber application is not urgent and is dismissed.

The applicants may apply for the setting down of the application on the ordinary roll.