Muchineripi Zimbovava v The Auditor-General

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/203/24
HARARE 7 JUNE, 2023 AND 2 MAY, 2024
CASE NO LC/H/315/23
MUCHINERIPI ZIMBOVAVA
APPLICANT
THE AUDITOR-GENERAL
RESPONDENT
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==============================IN THE LABOUR COURT OF ZIMBABWE

HARARE 7th JUNE, 2023 AND 2ND MAY, 2024

JUDGMENT NO LC/H/203/24

CASE NO LC/H/315/23

MUCHINERIPI ZIMBOVAVA

APPLICANT

THE AUDITOR-GENERAL

RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant    In Person

For Respondent    Mr V. N. Mukumbe (Legal Practitioner)

CHIVIZHE, J:

The Applicant is a former employee of the Respondent. He was employed as a Senior Auditor for the period of June 2008 to October 2018. The Respondent is a Public Office created in terms of the Audit Office Act, [Cap 22:18] and Section 309 of the Constitution. It is charged with the primary oversight/assurance role by ensuring accountability within the three arms of government. The application placed before the court has been styled as an application for an order compelling the Respondent to comply with S 51(1) Public Service Regulations 1 of 2000. The Applicant has not outlined under which provisions of the Labour Act [Cap 28:01] and the regulations the application is premised upon. The point shall be revisited below.

The material background facts to the matter as can be gleaned from the papers filed are as follows: The applicant was dismissed from employment on the 10th of October, 2018 after being found guilty of acts of misconduct in terms of the Public Service Regulations, Statutory Instrument 1 of 2000. He thereafter filed an appeal with this court under reference LC/H/189/19. That appeal was dismissed by this court under judgement reference His dismissal was further confirmed by the Supreme Court under reference SC 390/22. It would appear that the Applicant is still dissatisfied and has sought to bring the present application before this court.
 From his Founding Affidavit the Applicant makes the following critical averments: That in this application he seeks to have this court issue a compelling order to the Respondent to comply with the provisions under Section 51(2) of the Public Service Regulations, S.I. 1 of 2000 by forwarding a request for review by the Public Service Commission of the misconduct determination and penalty issued by the Respondent on 18th October 2018: The application has been filed against the backdrop of purportedly new evidence of forgery, conspiracy and misrepresentation by the Respondent: That after receiving the Respondent’s determination dated 18th October, 2018 he had forwarded an application for review of the determination and penalty to the Respondent for onward transmission to the Public Service Commission: This was in compliance with Section 51(2) of the Public Service Regulations: The Respondent had however disregarded the application for review, she instead directed him to note an appeal to this Court: This however was in clear violation of Section 51(1) which provision gives a litigant an option to do either one of the two options available, that is, either note a review with the Public Service Commission or file an appeal with the Labour Court: The Respondent thus “conspired” to remove the internal review and replaced it instead with the appeal to the labour court: This action on Respondent’s part was based on a misunderstanding of the difference in the two processes i.e. an internal remedy vs an appeal before the Labour Court: The Respondent by suppressing his internal review also violated the transitional provisions in S 35 (3) of the Audit Office Act [Cap 22:18] which provision evoked the operation of the Public Service Regulations, S.I. 1 of 2000 as the Audit Office Act [Cap 22:18] was not yet in force: The Respondent also deliberately omitted in her determination some words from the provision in Statutory Instrument 1 of 2000 of the Public Service Regulations, in order to give the impression that the only option available to Applicant at the time was an appeal to the Labour Court when in fact the provision gives a litigant two options: She thus committed “forgery” which has been defined in his papers and the relevant authorities are referred: The Respondent also committed fraud by omitting the letter of determination the crucial words under S 51(1) of the Public Service Regulations, S.I. 1/2000 that is “EITHER/OR”: The Respondent also exerted undue influence and duress upon him in order to coerce him into noting an appeal with the Labour Court. The undue influence and duress is said to have emanated from a letter by Respondent to Applicant dated 16th November, 2018 in which she stated as follows;
 “There is therefore no internal mechanism for consideration of your application for review. This is advised you that you only have a right of appeal at the labour court. we reiterate the same position please be guided accordingly”

The Applicant also contends the Respondent concealed the existence of his application for review to the Public Service Commission before this court. He has thus urged the court to find that the application for review filed at the same time with the appeal before this court amounted to an irregularity which irregularity can be addressed by nullification of the proceedings before this court under reference LC/H/189/19. The Applicant also alleges that an affidavit placed before Makamure J in an application for condonation filed again before this court was irregular in that it was not properly attested to by the Respondent.

In relief the Applicant prays for this court to order the Respondent to comply with section 51 (1) of the Public Service Regulations, Statutory Instrument 1 of 2000 by forwarding his request for review of the determination/penalty handed down by Respondent on 18th October 2018 before the Public Service Commission. He has also prayed for his reinstatement to his former job without loss of salary, and benefits and a fresh disciplinary process to be instituted before a different Disciplinary Committee. The Applicant has also prayed for compensation of the legal costs he has incurred in pursuing the appeal and review in the labour court, which processes were both at the instance of the Respondent. The costs are to be paid with interest at the prevailing rate on the date of payment.

RESPONDENT’S CASE

The Respondent opposes the application. The Respondent has in opposing the application taken a point in limine that the present matter is Res judicata. The Respondent contends that the Appellant has already exercised his right to challenge the misconduct determination and penalty rendered by the Respondent in 2018. It is common cause the Applicant was dismissed from employment after having been found guilty of acts of misconduct in terms of the Public Service Regulations, Statutory Instrument 1 of 2000. The Applicant had thereafter noted an appeal with this court under reference LC/H/189/19. That appeal was dismissed with costs. The Respondent further contends that the Appellant never appealed against the judgement of this court order under reference LC/H/ORD/577/20. That order remains extant and is attached as Annexure “A’ to Respondent. The Respondent further submits that the Applicant was dissatisfied and again approached this court with an application for condonation for late filing of his application for review and extension of time within which to file the application for review under reference LC/H/APP/394/20. That application was again dismissed with costs under judgement reference LC/H/48/22 (also attached as Annexure ‘B’ to Respondent’s papers). The Applicant was still dissatisfied. He thereafter noted his appeal to the Supreme Court after being granted leave under reference SC 390/22. The appeal suffered the same fate of dismissal.

The Respondent contends that the Applicant through the present application is seeking to have the misconduct determination and penalty imposed on him reconsidered by another authority i.e. the Public Service Commission. The Respondent position is Applicant can no longer exercise the right to be heard in any other forum regarding the review of the misconduct determination and penalty imposed. This matter is simply *res judicata*.

The Respondent further contends that the Applicant has also in this application changed the label of the application and spiced it with unfounded allegations against his former employer. This however he cannot do. The Respondent is inviting the court to dismiss the application and impose an order of costs on a higher scale against the Applicant for wasting the court’s time and unnecessarily putting Respondent’s office out of pocket with useless litigation.

**PARTIES SUBMISSION**

On the date of hearing both parties were represented. They made submissions on the point *in limine* as taken. Mr Mukumba, for the Respondent submitted that the point is clearly merited. It was apparent that the Applicant was still seeking the review of the misconduct, determination and penalty rendered in October 2015. This issue had already been determined by the Labour and Supreme Court. Mr Mukamba also noted that the Applicant was in any event seeking an incompetent relief. He is seeking for this court to compel yet another forum to hear the same matter as already determined in this forum. The Applicant was also seeking reinstatement without loss of salary and benefits and for the court to direct fresh disciplinary proceedings. This however was legally incompetent in view of the final order issued by the Supreme Court. Under reference SC 380/22 his appeal based on his application for condonation for late noting of an application for review before this court was dismissed. On this basis it was Respondent’s prayer that the court uphold the point in limine and dismiss the application.
 In his response, Mr Zimbovara submitted that he was persisting with the application as it was properly placed before the court. He noted that both appeal hearings before the Labour Court (per Mhuri J) and the Supreme Court were default hearings. In both cases the court did not proceed to the merits. On that basis therefore the principle of *res judicata* would not apply. Mr Zimbovara prayed for the dismissal of the point in *limine* as taken.

**EVALUATION**

The Respondent has submitted that the present matter is *res judicata* as the issues being raised by the Appellant were litigated to finality. The Applicant does not agree.

The principle of *res judicata* was defined in the case of *Custom Credit Corporation (Pty) Limited v Shembe SA 462 (A)* at 472 (A)-B to which the court was aptly referred by the Respondent. In that case, the South Africa Appellate Di vision stated as follows;

> *“If a cause action has been finally litigated between the parties, then a subsequent attempt by one to proceed against the other on the same cause of action for the same result can be met by an excepti rei judicatae vel litis finitae”.*

The principle has also been relied upon in this jurisdiction in *Daniel Sibanda v High Court & Others HB 22/22* at page 6; *Tian Ze Tobacco Company (Pvt) Limited v Anxious Jongwe Masuku HH 650-22 at p. 4*

The issue before the court is whether or not the cause of action has been finally litigated between the parties. It is clear from a perusal of the present application that although the Appellant has styled the application as being one for a compelling order directed at the Respondent, the Appellant clearly intends to have reconsidered by the Public Service Commission the determination and penalty imposed upon him in October 2014. There are several reasons for the court arriving at this finding.

Firstly, it is worth noting that although in the application the Appellant states that his application has been compelled by his discovery of new evidence of forgery, conspiracy, undue influence and duress brought to bear upon him by the Respondent, in the body of the application there has been no such evidence placed before the court to prove those allegations. The so called evidence only goes to confirm the position that the Appellant is aggrieved with the misconduct determination and the penalty imposed on him.

The Appellant has for example referred to the fact that Respondent influenced him to note an appeal to the Labour Court and not a review application before the Public Service Commission. The papers however show clearly that the Appellant’s internal reviews
 application could not be dealt with internally as there was no Audit Office Board in existence at the meeting. This is the information that was communicated to Appellant by the Respondent through the letter dated 16th November, 2018. He was then advised to approach this court to seek redress. Clearly the Appellant was not prevented from exercising his right to an internal review. The circumstances simply did not allow him to.

The second point is that the Appellant ought to have placed before this court a new and different cause of action. He also needed to establish/prove he was seeking a new relief. The relief he is seeking however is that for this court to grant an order for the dismissal penalty to be set aside, that he is then reinstated and the Respondent exercises the option to conduct fresh disciplinary proceedings.

The record however clearly shows that the Appellant has already exercised his right of review and appeal against the misconduct determination and penalty in case numbers **LC/H/APP/394/20** and **LC/H/189/19**. It is pertinent to note Appellant never appealed to the Supreme Court against the judgement rendered by this court under LC/H/189/19. He also filed an application for condonation of late filing of a review under LC/H349/21. He appealed against this court’s judgement in the condonation case under reference **SC 390/22**. He again lost as the appeal was dismissed with no order as to costs. Needless to point out the relief he was seeking in both processes i.e. in the intended review and appeal are the same as the relief he is seeking before this court. This court is clearly precluded from hearing the present application by the principle of *res judicata*.

In the case of **Anjin Investements (Pvt) Limited v The Minister of Mines and Mining Development and 3 others CCZ 6/2018** the Constitutional Court held that the principle of *res judicata* precludes a court from reopening a case that has been heard to finality. The court must find that this is the case *in casu*.

It is also a principle of law that there must be finality to litigation. The Respondent has referred the court to the authority in **Daniel Shumba v Sheriff of the High Court** referred to supra. There is no doubt that the Applicant has already had his day not just in this court but also in the Supreme Court without any success. He cannot be allowed to persist with bringing spurious applications no matter how differently he has labelled the application. There must be finality to litigation. The point *in limine of res judicata* simply must be upheld. The Respondent had prayed that if the point found favour with the court, the application must be dismissed with costs on higher scale.


This would be a proper case for the court to express its displeasure at the conduct of Applicant for continuously bombarding the court with endless applications when he has already had his day in court and the outcome cannot be salvaged by him no matter which court he approaches or however he chooses to style the application. The court however has taken the option, in the interests of fairness/justice, to give the Appellant the final warning that should he approach this court again with any process there will be sufficient reason for the Court to mulct him with costs on a higher scale. Accordingly, it is ordered as follows;

(1) The point in limine of *res judicata* being clearly with merit, is hereby upheld.

(2) The application is accordingly dismissed with costs on the ordinary scale.
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