Zimbovora Muchineripi V THE Auditor General

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/818/2014
HARARE, 4 SEPTEMBER 2014
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/818/2014

HARARE, 4 SEPTEMBER 2014 &			  CASE NO LC/H/328/2014

19 DECEMBER 2014

In the matter between

ZIMBOVORA MUCHINERIPI					          APPELLANT

Versus

THE AUDITOR GENERAL						RESPONDENT

Before The Honourable D L Hove   :  Judge

The Appellant in Person

For the Respondent    B Magogo  (Legal practitioner)

with Mr M Munodawafa  (Director of Finance, Admin

& HR)

HOVE J:

The appellant in this case is employed by the respondent. The background facts of this dispute are that the appellant was given a laptop to use in the course of his duties.

On 6 November 2012 the appellant reported that the service laptop had been stolen from his residence on 21 October 2012.

Proceedings in terms of section 12 of the Public Finance Management Act [Cap 22:19] were instituted. Investigations were carried out to establish the circumstances surrounding the loss of the laptop.

During a board of inquiry which was set up, the appellant is alleged to have contradicted his earlier story that the theft had been in October by stating that it was in July. As a result of inconsistences noted during the inquiry, the appellant was found to be liable for the loss of the laptop. A recommendation was made that an order for reimbursement of an amount equivalent to the value of the laptop be raised against him.

The order was raised and the appellant appealed to the Comptroller and Auditor General. The appeal was unsuccessful. He proceeded to appeal to this court.

The appeal was opposed on several grounds, two of which were that:

This court has no jurisdiction to hear and entertain the appeal and

The appellant has failed to exhaust his domestic remedies.

The court will therefore consider first whether or not it has jurisdiction to hear this appeal.

It has been argued that the matter was dealt with in terms of the provisions of section 12 of the Public Finance Management Act (“PFMA”).

Section 12 (7) thereof provides that:

“Any person who is aggrieved by an order made against him or her in terms of subsection (3) may, within 30 days after he or she has been notified thereof or such further period as the appropriate Minister in special circumstances may allow, appeal in writing to the Minister against such an order, giving reasons why he or she feels that the order should be revoked.”

The right of appeal therefore lies to the Minister and not to this court in terms of the cited provision.

The Labour Act [Cap 28:01] (the Act) has no provisions providing for appeals against orders made in terms of the PFMA.

The Labour Court, being a creature of statute, can only do those things that it is authorised to do in terms of the Act. In casu, there is no provision authorising an appeal to this court under the present circumstances.

Several cases have stated that in such circumstances, this court must decline jurisdiction.

See the cases of DHL International v Clive Madzikanda 2010 (1) ZLR 204 and Zimtrade v Makaya 2005 (1) ZLR 427 (H).

Whether or not the appellant has exhausted the domestic remedies?

The provisions of section 12 (7) of the PFMA quoted above clearly state that the appeal ought to have been directed to the Minister and not to this court. I have found that this court has no jurisdiction but even if I was wrong in so finding, the appeal is also premature. The appellant ought to have appealed to the Minister first. He has not and again has failed to show why he has failed to exhaust the domestic remedies open to him.

In the case of Girjac Services v Mudzingwa 1999 (1) ZLR 243 it was stated that a litigant must exhaust domestic remedies available to it before approaching the court unless there are good reasons for failing to do so.

No good reasons, in fact no reasons have been given for by passing the domestic tribunal i.e. the minister. See the case of Munyira v Secretary for Education of Public Service Commission SC-214-98.

The appellant’s argument that he approached this court in terms of section 52 of SI 1 of 2000 which governs civil servants cannot assist him. The permission to fall back as it were on the Public Service Regulations is only in circumstances were there are no employment rules. In casu there are rules governing the proceedings and these ought to have been followed.

The provisions of the Constitution which permit a litigant to seek redress in any relevant court do not mean that litigants should by pass domestic tribunals without good reasons. Litigants should first exhaust domestic remedies available to them.

See Chikonye & Anor v Peterhouse 1999 (2) ZLR 329.

In the result, the appeal must fail on the two grounds that the court has no jurisdiction and further that the appellant has failed to exhaust his domestic remedies.

Makuwaza & Associates, respondent’s legal practitioners