Munyaradzi Simbarashe Kachere v Ministry of Transport and Infrastructural Development and The Civil Service Commission

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/250/20
HELD AT HARARE ON 2ND NOVEMBER, 2020
CASE NO. LC/H/237/19
JUDGMENT NO. LC/H/250/20
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/250/20

HELD AT HARARE ON 2ND NOVEMBER, 2020    CASE NO. LC/H/237/19

AND 6TH NOVEMBER, 2020

In the matter between:-

MUNYARADZI SIMBARASHE KACHERE				Appellant

And

MINISTRY OF TRANSPORT AND

INFRASTRUCTURAL DEVELOPMENT					1st Respondent

And

THE CIVIL SERVICE COMMISSION					2nd Respondent

Before the Honourable Mhuri, J.

For Appellant		    :	Mr. Siyawareva (Legal Practitioner)

For 1st & 2nd Respondents :	Mr. K. Chimuti (Law Officer Civil Division of the Attorney General’s Office)

MHURI J.

This is an appeal against the decision of the 1st respondent’s Disciplinary Authority.

In its notice of response to the appeal, 1st respondent raised and persisted with a preliminary point to the effect that 1st respondent was improperly cited.  The Minister and not the Ministry should have been cited as required under Section 3 of the State Liabilities Act [Chapter 8:14 ].  By citing the Ministry, appellant made a fundamental error which cannot be remedied.  The Ministry is too broad which makes it impossible to be sued, so argued the respondent.

1st Respondent relied on the cases of –

C.T. BOLTS (PRIVATE) LIMITED

vs

WORKERS COMMITTEE SC 6/2012

REUBEN ZIMONDI

vs

THE SECRETARY PUBLIC SERVICE COMMISSION & OTHERS

HMT 2/19

It was 1st Respondent’s submission that the defect is fatal to the extent that it cannot be amended through an application and neither can the Court condone it considering that the requirement to cite the Minister is created by statute.  This, it argued, places the appeal in the situation where it has to be struck off so as to enable appellant to reinstitute it properly citing the parties.

It prayed that the matter be struck off on the basis of the defect of improperly citing the 1st respondent.

Appellant opposed the point in limine arguing that the correct 1st respondent was served and the same 1st respondent actually deposed to an opposing affidavit and pleaded to the matter on the merits.

Appellant however conceded that there was an error in citation.  It argued that this was a common error and one which can be cured without any hardship.

With this concession, I find it unnecessary to proceed to consider appellant’s other submissions.  These submissions, in my view touched more on whether the citation can be amended, what is to be considered in an application for such an amendment, and on the prejudice if any which can be suffered by the other party and how this prejudice can be cured.

I agree with 1st respondent submission that there is no application for the amendment before the Court.  What the Court was hearing were submissions on the point in limine that 1st respondent was improperly cited, the effects and relief thereto.  I also agree with the submission that the Court cannot mero motu  condone the miscitation.  The issue was not the service of the appeal on the respondent but the citation of 1st respondent.  The fact that the Minister deposed to an affidavit and pleaded to the merits of the appeal, will not rescue appellant at all.

There was miscitation of the 1st respondent which is the main respondent in this case and this in my view is fatal.  See the case of:

FLOSSY MACHAYA

VS

MINISTRY OF PRIMARY & SECONDARY EDUCATION   LC/H/551/14

in which I determined the same point.

To that end, I find that the point in limine was properly taken and I uphold it.

The appeal therefore is hereby struck off with costs.

JESSIE MAJOME & COMPANY – Appellant’s legal practitioners

CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICE – Respondents’ legal practitioners