Samuel Manyaza v The Director Department of Veterinary Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/712/2016
HARARE, 24 OCTOBER 2016 &
4 NOVEMBER 2016
CASE NO LC/H/1063/2014
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/712/2016

HARARE, 24 OCTOBER 2016 &	                                         CASE NO LC/H/1063/2014

4 NOVEMBER 2016

In the matter between:

SAMUEL MANYAZA		 				               APPELLANT

Versus

THE DIRECTOR DEPARTMENT OF				               RESPONDENT

VETERINARY SERVICES

Before The Honourable Manyangadze J

(IN CHAMBERS)

MANYANGADZE J:

This appeal was dealt with on the record in terms of section 89 (2) (a)(i) of the Labour Act [Chapter 28:01].

The appeal emanates from a decision of the respondent’s Disciplinary Authority, which found the appellant guilty of misconduct and imposed a penalty of dismissal.

The appellant was employed by the respondent as a Veterinary Extension Worker. He was charged with misconduct in terms of the Public Service Regulations, Statutory Instrument 1 of 2000, section 44 (2) (a) as read with section 13 (d) of the First Schedule to the Regulations:

“Falsifying or attempting to falsify any document with fraudulent intent or uttering a forged document.”

Particulars of the misconduct were that on 4 August 2012, he under-receipted dipping fees and converted the difference to his own use, prejudicing the respondent of an amount of US$8-00.

On 9 October, a Disciplinary Committee convened by the respondent found him guilty as charged, and recommend a penalty of dismissal. On 5 November, the respondent’s Disciplinary Authority upheld the conviction and penalty of dismissal. This led to the appeal to this court.

The respondent raised a point in limine, to the effect that the appeal was defective in that it cited the wrong respondent. It cited the Director Department of Veterinary Services as the respondent. The respondent averred that the appellant should have cited the Minister of Agriculture, Mechanisation and Irrigation Development and the Public Service Commission as the respondent.

The record shows that the parties appeared before CHIVIZHE J on 14 March 2016. The hearing did not proceed to the merits, when the issue of the wrong citation of the respondent was brought to the appellant’s attention. The appellant conceded there was a defect in the citation of the respondent, and sought a postponement sine die to attend to the issue. Submissions made at this hearing show that the appellant indicated that he was going to take the necessary steps to rectify the procedural anomaly. On this basis, a postponement sine die was granted by consent.

There has been no movement since the postponement. The papers on record still reflect the wrongly cited respondent. No application has been filed to amend the Notice of Appeal.

In C T Bolts (Pvt) Ltd v Workers Committee SC 16-12, the Supreme Court struck off the proceedings on the basis that the respondent cited had no legal persona and was therefore not properly before the court. GARWE JA stated, at page 4 of the cyclostyled judgment:

“The respondent, not being a legal persona, is not properly before this Court. The proceedings before the Labour Court and prior to that, the arbitrator, were similarly void.”

Similarly, in casu, there is no proper respondent before the court. The appeal must therefore be struck off the roll.

It is accordingly ordered that:

The appeal be and is hereby struck off the roll.

Each party bears its own costs.

Kamusasa & Musendo, appellant’s legal practitioners

Civil Division of the Attorney’s Office, respondent’s legal practitioners