Ministry of Agriculture, Mechanisation & Irrigation Development v Fanuel Masunda

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/703/14
HELD AT HARARE 7TH OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/703/14

HELD AT HARARE 7TH OCTOBER 2014			CASE NO LC/APP/H/289/14

& 24TH OCTOBER 2014

In the matter between:-

MINISTRY OF AGRICULTURE,						Applicant

MECHANISATION & IRRIGATION DEVELOPMENT

And

FANUEL MASUNDA							Respondent

..

Before The Honourable R.F. Manyangadze, Judge

For Applicant	   	   H Magadure (Civil Division Attorney General’s Office)

For Respondent	  A Mudada (Legal Practitioner)

MANYANGADZE, J:

The applicant seeks condonation for late filing of Notice of Response.

The respondent was dismissed from the applicant’s employment following a misconduct determination by applicant’s Disciplinary Authority on 25 February 2014.  The respondent noted an appeal with this Court on 27 March 2014.  The Notice of Appeal was served on the applicant on 2 April 2014.  The applicant filed its Notice of Response on 26 June 2014, a period of over 2 months after the service of the Notice of Appeal.

In terms of Rule 15 (2) of the Labour Court Rules, Statutory Instrument 59 of 2006, the applicant was required to file its Notice of Response within 14 days of service upon it of the Notice to Respond from the Registrar.  The applicant accepts that it was supposed to have filed its Notice of Response by 25 April 2014.  Its Notice of Response was out of the dies induciae by a period of about 2 months.

The court considers a number of factors when determining an application for condonation for non-compliance with its rules.  These are conveniently listed in paragraph 2 of the respondent’s Heads of Argument as:

The degree of non-compliance

The explanation for it

The importance of the case

The prospects of success

The respondent’s interests in the finality of his judgment

The convenience of the court and

The avoidance of unnecessary delay in the administration of justice.

These factors are as outlined in the leading cases of Kodzwa v Secretary

for Health & Anor  1999 (1) ZLR 313 and Mazvimbakupa v City of Harare

HH-92-05.

The degree of non-compliance, as already indicated, is about 2 months.  Although this is well in excess of the 14 day period, I will not go so far as to describe it as inordinate.  Condonation has been granted for far longer periods.

What I however, find disquietening in this matter is the explanation for the delay.  The applicant asserted that it was unaware of the existence of the Notice of Appeal.

In the Founding Affidavit, deposed to by a Law Officer from the Attorney General’s Office, the Law Officer states that he became aware of the Notice of Appeal after a reminder from the Registrar of this Court.  This then prompted the legal practitioners, in the Civil Division of the Attorney General’s Office, to chase up the matter with their client, the applicant.  It was then discovered that despite clear indications that the Notice of Appeal was served on the applicant’s Permanent Secretary, it could not be located.  It is claimed that despite a diligent search at the Permanent Secretary’s offices, the court documents could not be found.

Most probably, someone in the office of the Permanent Secretary sat on the court papers, where they were misplaced.  This resulted in their legal practitioners following up the matter.

In my view, it should have been the other way round.  It is the applicant, not its legal practitioners, who is affected by the litigation.  The applicant should therefore be the one pestering its legal practitioners at every stage of the matter.  Instead it is the lawyers, who are not the litigants but are only offering professional assistance, who are following up with the litigants in order to push the litigation forward.

The applicant’s handling of the court papers, especially the office of the Permanent Secretary, leaves a lot to be desired.  The explanation for the delay does not, in the circumstances, pass the reasonableness test.  It is far from being persuasive.  If some weight is to be attached to the applicant’s explanation, there should at least have been an affidavit from the Permanent Secretary or other senior official in the Permanent Secretary’s Office, verifying the applicant’s assertions.  Infact, that affidavit should have been the applicant’s Founding Affidavit, with the legal practitioner weighing in with a Supporting Affidavit.

However, the inadequacy of the applicant’s explanation for the delay, though undesirable, does not put this matter to rest.  There is the issue of prospects of success on the merits.  It can be decisive in such applications, having regard to the circumstances of the case.

From the respondent’s Heads of Argument, it seems the basis of respondent’s challenge of his dismissal is that the second disciplinary hearing, held on 20 February 2014, was a nullity.  It was a nullity because the first hearing, held on 8 March 2011, resulted in a final and definite judgment.

The respondent contends that his plea of res judicata is likely to be upheld.  The applicant is just prolonging litigation and has no prospects of success in the main matter.

In my view, it is unlikely that respondent’s plea of res judicata will be upheld.  The applicant referred the court to section 46 of the Public Service Regulations, Statutory Instrument 1 of 2000.  These are the regulations in terms of which the respondent was charged.

Section 46 (1) provides as follows:

“On receiving the documents referred to in subsection (6) of section 45 the disciplinary authority may-

Refer the matter back to the Disciplinary Committee for further hearing.

Proceed to determine whether or not the member concerned is guilty of misconduct as alleged.”

Subsection (6) of section 45, of referred to in section 46 (1) talks of the

“findings and recommendations” of the Disciplinary Committee.  These are submitted to the Disciplinary Authority at the conclusion of the hearing by the Disciplinary Committee.  The Disciplinary Authority then exercises the powers it has in section 46.  A reading of these provisions shows that a determination of the matter by the Disciplinary Committee, is subject to further directions by the Disciplinary Authority.  The second hearing was in pursuance of such directions.  It is therefore unlikely that the respondent’s contention, that the proceedings held following the Disciplinary Authority’s directions were void, would be upheld.

Further to this, a reading of the record of the disciplinary hearing clearly shows that the question of the respondent’s unauthorised absence from work is not in contention.  He seeks to escape liability on the basis of the procedural technicality that the proceedings that resulted in his dismissal were a nullity.   The substantive issue, of his prolonged and unauthorised absence from duty, is virtually unchallenged.  This seems to me a classical instance were the principle enunciated in the case of Air Zimbabwe (Pvt) Ltd v Chiku Mnensa and Another SC 89/04 applies.  In that case CHIDYAUSIKU CJ stated, among other things:

“A person guilty of misconduct should not escape the consequences of his misdeeds

simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent.”

When all the factors in this matter are counter – balanced, I am of the

view that the prospects of success on the merits favour the granting of the application.  It is in the interests of justice, in the circumstances, that the matter be disposed of on the merits.

It is accordingly ordered that:

The application for condonation of late filing of Notice of Response be and is hereby granted.

The Notice of Response filed on 26 June 2014 be and is hereby deemed to be duly filed.

Costs shall be in the cause.

Civil Division, Attorney General’s Office, applicant’s legal practitioners

Ratisai & Nyamapfene Law Practice, respondent’s legal practitioners