Bright Rondozai v Minister Primary and Secondary Education N.O.

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/173/23
HELD AT HARARE 18TH MAY 2023 AND
23RD JUNE 2023
CASE NO LC/H/102/23
In the Matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 18TH MAY 2023 AND
23RD JUNE 2023

In the Matter between
BRIGHT RONDOZAI

And
MINISTER PRIMARY AND SECONDARY
EDUCATION N.O.

BEFORE THE HONOURABLE MAKAMURE JUDGE

For the Appellant : Mr Mandikate (Legal Practitioner)
For the Respondent : Mr C Chitekuteku (Civil Division)

MAKAMURE J:

This is an appeal against the dismissal of the appellant from the employ of the respondent.

Before the appeal could be heard, a preliminary issue was raised on behalf of the respondent. The preliminary issue was to the effect that the employer of the appellant was not cited. Mr Chitekuteku who appeared on behalf of the respondent submitted that the appellant ought to have cited the Minister of Primary and Secondary Education (the Minister) together with the Public Service Commission (PSC). The PSC, the submission continued, is the employer and not the Minister. Mr Chitekuteku argued that without the PSC being party to the proceedings, any order against the respondent would be difficult to enforce. Mr Chitekuteku argued that for example in the event of reinstatement, it is the PSC which reinstates. It was argued that the non- citation of the PSC was fatal to the proceedings making the appeal fatally defective. For that reason, it was submitted on behalf of the respondent that the appeal should be struck off the roll.

In response Mr Mandikate who appeared on behalf of the appellant referred to the Public Service Regulations, 2000. He argued that the appointing authority in relation to the PSC
 was the Head of Ministry or the PSC. He argued that the appellant was appointed by the Ministry, the determination letter came from the Ministry and the PSC was only copied the correspondence. This is why, Mr Mandikate argued, they cited only the Minister. The Court was referred to the case of Masamba & Anor v ZIMSEC HH 969/2015. Mr Mandikate argued that the non-joinder of a party is not fatal as long as the dispute between the parties remained intact. Reference was also made to Rule 33(2) of the rules of this Court which provides for joinder of a party or parties to proceedings. It was also argued that the PSC can delegate and further that the PSC is an umbrella body and that the employer is the Minister. Mr Mandikate submitted that any order will be enforceable and the preliminary point is not fatal. For that reason it was submitted on behalf of the appellant that there is no need to strike the matter off the roll because the appeal is properly before the Court.

In response Mr Chitekuteku insisted that the Minister and the PSC should be sued together.

According to the respondent if the PSC is not jointly cited with the Minister, in the event that the Court finds in favour of the appellant, the order will not be enforceable. To this, the appellant raised the point that in fact it is no longer the PSC but the Civil Service Commission (CSC). This appears to me as if there is more attention being paid to technicalities than to the real issues. However, it also appears as if the appellant is well aware of the need to sue the Minister together with the appropriate umbrella body. Focusing on technicalities, for example the knowledge of the existence or non- existence of either the PSC or the CSC without correcting what needs to be corrected is undesirable. Technicalities delay finality to litigation. However technicalities should not be ignored, they must be put right. Dalny Mine v Banda 1999 (2) ZLR 220; Edmore Mapondera and 55Others v Freda Rebecca Gold Mine Holdings Limited SC81/22; Ndebele v Ncube 1992(1)ZLR 288. I am not sure why the appellant decided to sue one party and leave the other out. If the appellant is aware that there is no longer a body known as the PSC then surely, they should have made an effort to identify the appropriate respondent. The appellant is the prosecutor of this matter. They should therefore identify the appropriate respondent. If at the conclusion of the matter the Court order cannot be enforced, then obviously time will have been wasted and the appellant will have no relief. This can be avoided by taking heed of the issue being raised on behalf of the respondent. The case of Masamba and Another HH969/2015 which Mr Mandikate referred the Court to, was interpreting the High Court Rules and not the Rules of this Court. However, the body / individual sued in that matter was found not to be liable. In the present matter the point being made on behalf of the respondent is that even if a finding is made in favour of the appellant, the Minister will not be able to enforce the order. It is the CSC or the PSC as the case maybe, which is the responsible authority. The appellant on the other hand, seems to be of the view that it is up to the respondent to identify the responsible authority. Even if there is delegation of duties the appellant is better off ensuring that the correct parties are cited instead of adopting an attitude that they will wait until the matter has been finalized for the other party to then be joined to the proceedings. The principle in Gariya Safaris v Van Wyk 1996(ZLR) 246 is that the appropriate party should be sued instead of waiting until judgment is obtained. It may not be that easy to amend a judgment.

My considered view is that the appellant should identify the correct respondent. It is a trite position of the law that he who alleges must prove. See Kudzayi Mwatukuya Mubaiwa (nee Chikumba) v Gainmore Mubaiwa SC 19/22. If the respondent is already denying the ability to enforce a judgment of the Court then the appellant must ensure that the appropriate party is joined to the proceedings. As already noted, it is up to the appellant to prove the appropriate respondent or respondents.

Thus, having said the above, the point in limine raised has merit. It is accordingly upheld. The matter is not properly before the Court.

In the result it is ordered that the matter be and is hereby stuck off the roll.

MUGADZA CHINZAMBA&PARTNERS, APPELLANT’S LEGAL PRACTITIONERS

CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICE,

RESPONDENT’S LEGAL PRACTITIONERS.
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