Wilson Muyanga v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/245//2016
HARARE, 8 MARCH 2016 &
CASE NO LC/H/APP/1175/2015
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/245//2016

HARARE, 8 MARCH 2016 &			         CASE NO LC/H/APP/1175/2015

13 MAY 2016

In the matter between

WILSON MUYANGA							  APPLICANT

Versus

PUBLIC SERVICE COMMISSION					RESPONDENT

Before the Honourable E T Muchawa J

The Applicant in Person

For the Respondent     Ms O Zvedi  (Legal Officer)

MUCHAWA J:

This is an application for leave to lodge further submissions.

The applicant was employed as an accounting assistant at Gweru Magistrates Court when he was charged and convicted of defeating the course of justice on allegations of causing the disappearance of a court record. He was sentenced to imprisonment for an effective eighteen months. He served a term of three months and four days from 1 June 2007 to 4 September 2007 when he was granted bail pending appeal.

In terms of disciplinary procedures, the applicant was discharged from the Public Service in terms of section 63 (d) of the Public Service Regulations on the basis that he had been imprisoned in pursuance of a conviction of an offence for an effective term of three months or more.

The applicant applied to the Public Service Commission for a review of the penalty but they confirmed the discharge from service.

The applicant then filed an appeal in this court alleging he had not been given an opportunity to make representations before the decision to discharge him was made.

This matter has become convoluted with a total of seven records before this court and the matter having gone through no less than six judges since 2008 and the following orders being issued:

The appeal granted by default by the late MUTEMA J on 5 October 2009.

Application for rescission of judgment dismissed by MAKAMURE J on 14 May 2010.

By consent, the order of 14 May 2010 set aside before MUSARIRI J.

On 21 July 2011, the appeal removed from the roll and the Registrar directed to set down the application for rescission of judgment, by MHURI J.

CHIDZIVA J on 7 September 2012 rescinded the order of MUSARIRI J of 27 May 2011 and ordered set down to allow the hearing of the application for rescission.

On 2 November 2012, KUDYA J ordered a postponement to 15 November 2012 to allow the parties to file their submissions to enable the court to deal with the orders by Honourables MUTEMA and MAKAMURE so that the matter could be brought to finality.

The judgment from KUDYA J after the hearing, set aside MAKAMURE J,’s order on the basis that it had been premised on a patent error and allowed the application for rescission of the default judgment by the late MUTEMA J.

The applicant followed this up with an application for an interdict seeking to bar the respondents from approaching the court and seeking his reinstatement. The application was dismissed in a judgment by MURASI J of 26 June 2015.

The applicant proceeded to lodge an application for leave to appeal to the Supreme Court against the judgment of MURASI J. That application was dismissed by CHIDZIVA J on 16 October 2015.

CHIDZIVA J heard the application for leave to appeal on 18 September 2015 and reserved her judgment. Both parties were in attendance and made oral submissions.

Meanwhile on 28 September 2015, the applicant filed this application which is before me. The application is headed:

“Application for leave to lodge further submissions in terms of Rule 36 as read with Rule 19 and 33 of the Labour Court Rules.”

These submissions are said to be made in terms of Rule 36 to the reserved judgment for an unopposed application for leave to appeal to the Supreme Court.

The further submissions sought to be filed by the applicant go to the history of his matter as outlined above starting from 5 October 2009 order by MUTEMA J. He chronicles his complaints against the Registrar’s office, the MURASI J and KUDYA J judgments and how on the date of the hearing the court record before CHIDZIVA J did not contain the correct judgment he wished to appeal against and he had to hand it in to the court.

The applicant then argues that he has prospects of success on appeal. This he bases on the fact that he was convicted of the same charges he was initially acquitted of and that he was maliciously discharged from the Public Service. He alleges too that rescissions of judgment were improperly done by the Labour Court and he prays for the granting of the application for leave to appeal.

The respondent argues that the applicant is abusing court process and none of the cited rules of the Labour Court allow him to act in the matter proposed.

It is further argued that the applicant was given an opportunity to present his case in court on 18 September 2015 and there is no need to grant him a further opportunity to make submissions.

In the case of Zimasco (Pvt) Ltd v Marikano SC 6-14 it was held that in general, once judgment has been reserved, the parties have no right to file further heads of argument. However a party has the right to apply to file such heads of argument. When that happens, it is incumbent for the judicial officer to hear both sides and thereafter to make a decision whether or not to allow such filing particularly if a point of law is raised.

It was further stated in Zimasco (Pvt) Ltd v Marikano supra that the rationale for allowing issues of law to be raised at any time is to enable a court to have all the information, even at a very late stage so that it is enabled to make a proper decision.

In casu the issue before the honourable CHIDZIVA J was whether or not to allow leave to appeal against a dismissal of an application for an interdict.

The issues raised by the applicant do not raise any valid point of law relating to the issue at hand of whether or not this court has jurisdiction to entertain an application for an interdict.

The purported further submissions do no more than regurgitate what is contained in the applicant’s founding affidavit. The issues contained therein were already before the court throughout the tens of supplementary submissions filed. For instance, Justice CHIDZIVA delivered her judgment on 16 October 2015 and the applicant went on to file what he called final submissions in terms of Rule 36 as read with Rules 19 and 33 and section 92 F (1) of the labour Act on 26 October 2015. This is essentially a commentary on the judgment of CHIDZIVA J. That is not an acceptable procedure and it borders on abuse of court process.

The Rules cited by the applicant do not support the filing of further submissions. Rule 36 deals with the leave to appeal against a decision of the Labour Court. Rule 33 states the period within which an application for rescission or alteration of judgment should be made whilst Rule 19 deals with the filing of heads of argument before the date of set down.

I find therefore that there is no legal basis for allowing the filing of supplementary submissions as applied for and I accordingly dismiss this application with costs.

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