Charles Mudimu v Health Service Commission & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 25 JANUARY 2024 & 21
JUDGMENT NO LC/H/127/2024
CASE NO LC/H/899/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 25 JANUARY 2024 & 21

MARCH 2024

In the matter between:-

CHARLES MUDIMU

HEALTH SERVICE COMMISSION MINISTRY OF HEALTH AND CHILDCARE

JUDGMENT NO LC/H/127/2024 CASE NO LC/H/899/23

APPELLANT

1st RESPONDENT

2nd RESPONDENT

Before the Honourable Kudya J

For the Appellant	Cathrene Chitopera and Timothy Chinyanganya	(Legal

Practitioner)

For the Respondent	Alice Zikiti - (Civil Division)

KUDYA, J:

Appellant employee filed an appeal against his dismissal from employment by the respondent employer following allegations of misconduct. The employer is opposed to the grant of appellate relief as it is its view that appellant does not have a good case on appeal. When parties appeared before the court the employer took the point that the appeal grounds 1 to 6 were review grounds as they sought to interrogate the process leading to the guilty verdict and dismissal penalty so these should have been brought up in an application for review as opposed to an appeal. In reaction to the validity of grounds 1 to 6 the appellant maintained that those grounds were appeal grounds as they sought to interrogate what was determined in the hearing. After hearing these submissions the court ruled that it would determine the validity of grounds 1 to 6 when it would be determining the merits of the appeal.

Before the merits of the appeal could be determined the appellant raised another point that there was no opposition to the appeal since the opposition had been made by a Commission which was not yet in place at the time of the disciplinary hearing. He reasoned further that his suspension and charging by the Acting Secretary were a nullity if regard is had to the fact as at the time of the disciplinary process there was no Health Commission in place to the extent that the acting Secretary could not argue that he derived his mandate from a non existent Commission. He stated further that the resolution which the acting secretary sought to rely on was a fraud since it was authored under the hand of a non existent Commission. The appellant therefore prayed that the opposition on file be disregarded by the court as being of no force or effect as it is a nullity at law.

In response to the attack on the notice of opposition the respondent was adamant that the opposition was regular and had to be entertained by the court. It reasoned that it was granted that at the time of the disciplinary process there was no Commission in place and that the board which had been operating before the law setting up the Commission had ceased to function on 4 January 2023 yet the appellant was disciplined in August 2023. It reasoned that even though there was no Commission in place until 5 January 2024 it can not be accepted that hospital functions would have been in limbo when there was no Commission. It reasoned therefore that it could only have been intended that the defunct board continue to act to the extent that the acting Secretary could deal with disciplinary issues albeit in the absence of the Commission. It reasoned further that even if it were accepted that the disciplinary proceedings were conducted at a time when the Commission was not yet in place the Commission reserved the right to ratify acts conducted in its place before it had become functional.

Faced with this critical issue for determination the court resolved that it was imperative that this issue of the Commission be resolved first before any attempt to assess the cogency of the point in limine vis validity of the appeal grounds 1 and 6 and the merits of the appeal. It

became apparent that a resolution of this point would render academic any attempt to engage with the validity of the appeal grounds and merits thereafter. A reading of the papers filed of record speak clearly to the fact that the resolution authorising the acting Secretary to deal with appellant’s disciplinary issue was birthed by a non existent Commission as record is clear that the Commission only came into place on 5 January 2024. It is therefore clear that the resolution relied on is a nullity and the law is clear that a nullity begets a nullity. See McFoy v United Africa Company 1961 (3) AllER 1169.

It is further evident from the record and the oral submissions made that the Health Service Board became defunct on 4 January 2023 when the law came into effect that the Commission had to take over from the board. It was also made clear that no saving provisions were put into place to allow the defunct board to continue operations beyond the expiry of its tenure till the Commission was put in place. It is clear that such was a lacuna in the operations of the respondent. By failing to put in place the saving provision it was clear that respondent’s operations thus progressed in an auto pilot set up where there was no legally recognisable structure to dealt with the disciplinary affairs. To that extent all that was done without the requisite legal mandate became a nullity See Jansen v Acavalos 1993 (1) ZLR 216(S). See also Mpofu vs ZIMDEF SC 33/24

The court is alive to the fact that the Commission could ratify acts done before it came into place. The assumption stemming from the ratification provision is that there would have been a legally recognisable body to deal with the actions that would then be ratified. In the case at hand it is clear that there was no body legally empowered to deal with respondent’s affairs taking into account that the board’s mandate had not been legally extended to cover the period awaiting the appointment of the Commission. It thus would be problematic for the Commission to ratify a nullity See Mcfoy Supra.

In the ultimate it is clear that all that was done vis the disciplinary process was a nullity on account of the absence of the powers of the acting Secretary to deal with the disciplinary issues. The court is therefore satisfied that the point in limine vis the inappropriate of the opposition is well founded and should succeed. This thus makes it academic for the court to try and decide the merits of the appeal where it is clear that proceedings giving rise to it were nullity. The court is therefore satisfied that the matter should be treated as unopposed to the extent that the appeal should succeed with costs.

IT IS ORDERED THAT

The point in limine vis validity of the opposition to the appeal being well founded it be and hereby succeeds. The appeal to that extent being unopposed it be and is hereby allowed with costs.

Mupindu Legal Practitioners. Appellant’s Legal Practitioners