Bizeki Kubalaluka v Health Services Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/222/23
HARARE, ……………………….. CASE NO. LC/H/297/23
20 JULY 2023
BIZEKI KUBALALUKA APPLICANT
vs
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==============================

IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/222/23

HARARE, ......................................... CASE NO. LC/H/297/23

20 JULY 2023

BIZEKI KUBALALUKA APPLICANT

VS

HEALTH SERVICES BOARD RESPONDENT

Before the Honourable B.T Chivizhe, Judge;

For the Applicant Mrs R. Murambatsvina (Legal Practitioner)

For the Respondent Mr Matsika (Civil Division)

CHIVIZHE, J

This is an application for condonation for late noting of an application for review of a decision taken by respondent’s Appeals Authority. The determination which was handed down on 28th of September 2022 was to the effect that applicant having been found guilty of gross incompetency was consequently dismissed from employment.

The material background facts to the matter are as follows. The applicant was employed by the respondent as a Procurement Assistant.

The applicant was charged with an act of misconduct under Section 4(f) of the Labour National Employment Code of Conduct, Statutory Instrument 15 of 2006 i.e. gross incompetency or inefficiency in the performance of his work. The allegations were that on the 29th of March 2021 Applicant had processed tender number 343/2021 for the procurement of services for the repair of printers under the Policy Planning Department. He had inflated the quotation for First Pack which had quoted the lowest price and as a result made First pack the most expensive bidder. Whereas First Pack had quoted ZWL$49 000 the comparative schedule prepared by Applicant showed ZWL$126 000.00. First Pack had lost the tender to Tatanga Solutions which had quoted zwl$106 600.00.

The applicant was arraigned before a Disciplinary Authority. After finding him guilty the Disciplinary Authority imposed a penalty of Discharge from service with effect from date of his receipt of the letter. The applicant was aggrieved and noted an appeal to the Health Services Board. That body through a letter dated 28th September, 2022 dismissed his appeal. They upheld the decision made by the Disciplinary Authority. The applicant, being out of time to note the appeal filed the present application for condonation and extension of time within which to note an application for review of the determination of the disciplinary authority.

**Preliminary Point**

The applicant has raised a preliminary point. It is that the respondent has breached the provisions of **Rule 26(3)(a)** of this court Rules by failing to file their Notice of Response and heads of argument at the same time. The applicant submits, that, as he was unrepresented at the time of filing his application, the respondent, ought to have waited for the 10 (ten) days period between the filing of their Notice of Response and applicant heads of argument. The applicant further submits that he took the liberty to file his heads of argument in order to comply with **Rule 26(5)** of the Court Rules. On the date of hearing, applicant being now represented by counsel, persisted with the preliminary point. It was her prayer that in view of the respondent’s clear breach of **Rule 26(5)** the respondent documents as filed were therefore invalid documents and the application had to proceed as an unopposed matter.

Respondent’s counsel, in reply, submitted that the point lacked merit. It was clear that the relevant part of **Rule 26(3)(a)** applied only in circumstances where the applicant was not being represented by a legal practitioner. In this case, however, the applicant was being represented by a legal practitioner, so the respondent had filed both documents separately. The applicant’s counsel in reply insisted that as the applicant was unrepresented at the time of filing of his application the particular provision had indeed been breached by respondent. The fact that he was now legally represented would not alter the position. Applicant counsel persisted with a prayer for the application to be granted as unopposed. **Rule 26(3)(a)** of the **Labour Court Rules, 2017** provides as follows;

“(3) Where a Respondent is to be represented by a legal practitioner or a representative at the hearing of the application, appeal or review the legal practitioner or representative shall-
 (a) lodge with the Registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities, if any, which he or she intends to cite within ten days of receiving a copy of the heads of argument in terms of subrule(1)(b), or at the time when the notice of response is filed with the Registrar in terms of rule 14(2)(b)(ii), 19(2)(b)(ii) or 20(2)(b)(ii), if the applicant or appellant is not represented by a legal practitioner or representative; and...

It is clear that the Rule provides for two scenarios. The first scenario is when the applicant/appellant is being represented. The respondent is required then to file its heads of argument ten days after receiving applicant/appellant heads. The Notice of Response in such a scenario is filed separately to the Heads of Argument. The second scenario is the one as presented after the insertion of the disjunctive, OR, in the rule. This is the scenario where an applicant or appellant is not represented by a legal practitioner or representative. The respondent in this case is required to file a Notice of Response and Heads of Argument at the same time. The mischief behind this provision is clear. It is meant to conflate the submissions of document in view of the non-representation of the applicant or appellant. The assumption there is the unrepresented applicant or appellant is unlikely to file Heads of Argument. It is accepted however in this case the applicant although unrepresented at the time did file Heads of Argument and he says it was in order to comply with **Rule 26(5)** of the Court Rules.

The issue that arises is whether respondent indeed violated the Rule in this case and if it did is this fatal to respondent’s case? It is accepted that applicant was not represented initially when he filed his application for condonation. Under the provisions of **Rule 26(3)(a)** respondent was required to therefore file both its Notice of Response and heads of argument on the same date. The record however shows respondent filed its Notice of Response on 16th May 2023 and the Heads of Argument on 22nd May, 2023. There was clearly a breach of **Rule 26(3)(a)** by the respondent. Is this fatal to the respondent case? I do not believe it is fatal. This is in view of the approach as recommended by the Supreme court in **Mapondera and 55 others vs Freda Rebecca Holding (pvt) (ltd) SC 81 of 2022** that the role of the labour court as a specialised court is to do justice between man and man without delving so much on legal technicalities. It was clear that although there had been a breach in this case the Applicant however had failed to establish what prejudice he had suffered as a result of the technical breach by the respondent. The record also showed the applicant himself had also filed his Heads of Argument after the Notice of Response. The point stands to be dismissed for lack of merit.


Application for Condonation

The requirements for an application for condonation and extension of time have been laid down in many authorities. The applicant has referred the court to **Kodzwa** vs. **Secretary for Health and Another** 1991 (2) ZLR 313 whereas the respondent has referred to a latter decision by the Supreme Court in **Stuttafords Removals (Pvt) Ltd** vs. Nyamazuzu SC 40/20. The common requirements for such an application are outlined as follows;

(a) Reasonableness of the explanation for the delay
(b) the degree of non-compliance with the Rules
(c) prospects of success on the merits
(d) importance of the case
(e) interest in the finalisation of the case
(f) convenience of the court
(g) avoidance of unnecessary delay

Applicant’s case

The applicant submits as his explanation for the delay of six months that he had soon after receiving the determination instructed a *Mr Chigoro*, a legal practitioner, to file an appeal on his behalf. *Mr Chigoro* however had failed to prosecute his appeal, his request to him to provide all the papers pertaining to his matter were not responded to, resulting in him lodging a complaint to the Law Society of Zimbabwe against the said *Mr Chigoro*. The applicant contends that he does not understand why the respondent had referred the determination to Atukwa Attorneys and their involvement in the matter. The applicant has explained that he could not file his appeal in the absence of the documents in *Mr Chigoro’s* possession. Applicant also contends that he also never received the minutes of the disciplinary proceedings. He had even approached the Health Services Board but was advised to obtain there from his employer. He submits that he has thus tendered a reasonable explanation for the delay in noting his application for review. He has referred the court to judgments emanating from this court where condonation was granted even after lengthy delays. He referred to **Aqualing Private Limited** vs **S. Keswa and Others** LC/H/319/12 where there was a delay of four years; **Auxilia Samuriwo** vs **City of Harare** LC/H/52/14 where condonation was granted in a case where the period of delay was six months.

On prospects of success the applicant’s submission is that he has very good prospects of success as the disciplinary proceedings convened by the respondent were marred by procedural irregularities. He has pointed to some of the irregularities as including that he was given insufficient notification of the disciplinary hearing; he submits he was only given one day notice instead of 3 days as provided under the relevant Code. He also submits that the respondent improperly conducted disciplinary proceedings under the **National Code of Conduct, Statutory Instrument 15 of 2006** whereas the disciplinary proceedings ought to have been convened under **Public Service Regulations, Statutory Instrument 1 of 2000**. Applicant also submits that the Minutes of the disciplinary proceedings were not signed by the parties in confirmation of their being a true and correct reflection of the events that transpired. Applicant further submits the minutes were summarised and not quoted verbatim. Applicant has placed reliance on the decision in **Fraser vs Gideon Takavarwisa** SC 14/98 where the Supreme Court found such minutes to be invalid. The Applicant has also referred to other anomalies, such as that the Director Procurement was allowed to give his evidence over the phone and he was not granted an opportunity to cross examine him. The Applicant also states that the record does not indicate witnesses evidence tendered which was later altered in the course of proceedings. Applicant also submits that he was made to lead evidence of mitigation before the verdict was handed down pointing to a clearly pre-determined outcome. The Applicant also disputes that he pleaded guilty to the charges, he states that he was only asked to explain the surrounding circumstances. On these and other grounds he contends his application for condonation ought to be allowed as he clearly has good prospects of success on review.

**Respondent’s case**

The Respondent contends that the period of delay as calculated from 30th September 2022 is 7 months. It is an inordinate delay. The Respondent further contends that the explanation tendered is not reasonable. The Applicant has not explained why he had to only obtain the record from Mr Chigoro in order to process his application for review. He could have easily approached his former employer to obtain the documents. The letter of determination had actually been referred to Atukwa Attorneys who were his attorneys then. It was not clear his relationship to Mr Chigoro and how he became involved in the matter. The Respondent disputes that a wrong Code was utilised in the disciplinary process. In oral submissions, Respondent Counsel explained that there had actually been an amendment to the **Health Services Act** on 4th January,2023 which had the effect of amending **Section 3** of the **Labour Act (Cap 28;01)**. The Act had come into operation on the 4th January, 2023. The amendment however would not alter the position that Applicant had in this case been properly disciplined under the provision of S.I. 15 of 2006.

The court was also urged to note that the Applicant had in any event pleaded guilty to the charge; there was no need therefore for Respondent to have called for any further evidence in view of the guilty plea. The Minutes of the disciplinary proceedings also clearly showed Applicant had tendered evidence in mitigation. Respondent’s counsel urged the court to dismiss the application on the basis that Applicant had poor to nil prospects of success. He had been convicted of a very serious charge, which had resulted in the employer being prejudiced of a large amount of money after the tender was awarded to an expensive supplier.

**Evaluation**

The determination of the Respondent’s Appeal Authority which Applicant intends to appeal against was handed down on 28th of September, 2022. In terms of **Rule 20** of this court rules, the **Labour Court Rules, 2017** an appeal/application for review should be filed within twenty-one days from the date when proceedings are concluded. The intended application for review is therefore 7 months out of time. It is indeed an inordinate delay.

The explanation tendered by the Applicant for the delay is also not convincing. It certainly could not have taken the Applicant seven months to locate the said Mr Chigoro in Harare. The Applicant as submitted by the Respondent could have approached his erstwhile employers in order to obtain the documents in order to enable him to file his intended application for review or appeal. It is not clear why he believed he only needed the documents that were in Mr Chigoro’s custody. As it turned out he eventually had to file his application for condonation without those documents anyway.

On the issue of prospects of success it would appear however that the proceedings may have been marred with minor irregularities. The Applicant submits that he was given insufficient notice for the hearing, he was only given a day’s notice contrary to the 3 days as provided under Statutory Instrument 15 of 2006. In oral submissions he explained that he received notification on the 5th July, 2022 to appear for the hearing on the 8th July, 2022. The Respondent’s Counsel when advised of the actual dates involved had nothing to say in counter. The Applicant has however not pointed to the prejudice suffered as a result of this irregularity. On the issue of the wrong Code having been utilised a perusal of the **Health Amendment Act, 2022** which came into operation on 4th January, 2023 that Act amended **Section 3** of the **Labour Act (28;01). Section 3(3)** of the
 Labour Act prior to this amendment excluded the application of the act to certain members of the public service for example, defence. The Labour Act (Cap 28:01) applied to all other public servants including Ministry of Health employees where Applicant was formerly employed. The effect of the amendment was to now exclude employees under Health Service whose conditions of employment are now governed under Health Services Act (Cap 15:16). The Applicant’s intended ground for review clearly has no merit as he was properly disciplined under the law which was applicable at the time. Applicant had also submitted that he was denied an opportunity to mitigate the record however clearly shows that he gave mitigation before the determination was handed down. On the allegation of the record not being a correct reflection of the proceedings as submitted there is no requirement under the Code for the minutes to be countersigned by the parties as a correct reflection of the proceedings. The Applicant also did not take the court into his confidence to show which issues were missing from the minutes. In the absence of such his submissions remain unsubstantiated. On the issue of Respondent convening two inquiries not provided by the Code the court accepts that there is nothing under the Code prohibiting Respondent from conducting an investigation prior to convening formal disciplinary proceedings as what happened in this case. The Applicant has also failed to indicate if he was prejudiced by this irregularity if at all he was prejudiced.

What has really destroyed the Applicant’s prospects is that he did plead guilty to the charge of capturing figures which resulted in a company with expensive prices winning the tender. The record shows that in response to the charges “Mr Kubalalika said he accepted that he made the error and apologised to the Ministry and colleagues whom he said erroneously signed the quoted tender”.

Having made that unequivocal admission there was really no need for the employer to have proceeded to call for any further evidence. The Applicant was properly found guilty on the charge of inefficiency and incompetency in the performance of his work. In view of the seriousness of the charge he was properly discharged from service. The application stands to be dismissed.

It is accordingly ordered as follows;

The application for condonation of late noting of an application for review is hereby dismissed with no order as to costs.
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