Collins Mutsonziwa v Minister of Public Works and National Housing

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/44/16
HELD AT HARARE ON 22nd JANUARY, 2016
CASE NO LC/H/APP/995/15
AND 5TH FEBRUARY, 2016
X REF: LC/H/181/15
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/44/16

HELD AT HARARE ON 22nd JANUARY, 2016 CASE NO LC/H/APP/995/15

AND 5TH FEBRUARY, 2016			   X REF: LC/H/181/15

In the matter between:-

COLLINS MUTSONZIWA						Applicant

And

MINISTER OF PUBLIC WORKS AND

NATIONAL HOUSING							Respondent

Before the Honourable Mhuri, J.

For Applicant	: Mr. T. Maanda (Legal Practitioner)

For Respondent: Mrs. O. Zvedi (Civil Division of the Attorney General’s Office)

MHURI J.

This is an application for leave to file medical documents and amend grounds of appeal to include three more grounds.

On the 2nd March, 2015 Applicant filed an appeal (LC/H/181/15) in this Court against the Disciplinary Authority‘s determination of the 10th April, 2014 in which he was dismissed from employment for:-

Not reporting for duty on time since 3 June, 2012 to 28 March, 2013.

Disregarding official instruction directing members to sign in and out in the attendance register.

Absenting himself from duty during office hours for the period mentioned above.

On the 10th March, 2015 Respondent filed its notice of response to the appeal.  On the 31st March, 2015 Appellant filed his Heads of Argument and in turn Respondent filed its Heads of Argument on the 14th April, 2015.

In terms of Rule 19(6) of this Court’s Rules Statutory Instrument 59 of 2006 after the filing of Heads of Argument, no further papers may be filed without leave of the court.

Pursuant to the above sub-rule, Applicant intends to file medical documents hence this application.

If leave is granted, Applicant seeks leave to amend his notice of appeal by the addition of three more grounds to the two initial grounds to make the grounds five.  The three new grounds as per the amendment are based on the medical documents he seeks to produce.

A cursory look at the medical documents shows that: -	they bear dates in 2015(some however are tampered

with),

he got sick in April 2014 and was treated at Parirentyatwa Hospital as an outpatient and had defaulted,

his wife left him when he got sick in 2014 April.

on 23rd February, 2015 he was being managed for schizophrenia.

This brief analysis of the medical documents will assist the court in establishing whether on the amended grounds of appeal, they will serve any useful purpose in his appeal if the documents are admitted.

Firstly, Applicant submitted that the reason for the failure to avail these documents earlier was that they were obtained after the appeal had been filed.

Secondly, that he filed his appeal to beat the deadlines in terms of the Rules.

Thirdly, that the reason for filing these documents is to show the mental state of Applicant which could not have allowed him to file the documents.

At the time of filing the appeal, Applicant was legally represented.  At the time of filing the appeal Applicant was already under treatment being managed for schizophrenia, having been treated in 2014 at Parirenyatwa Annex Hospital and defaulted.  On the 23rd February, 2015 he was attended to by Dr. Jim/Hove who noted on the card that he was being managed for schizophrenia.

It is therefore clear from the above that at the time he gave instructions to his erstwhile legal practitioner he was aware of his health condition.  He ought to have brought this to the attention of his legal practitioner so that this medical issue was included in his grounds.

The initial grounds of appeal are that:

The disciplinary authority grossly erred at law by finding the Appellant guilty when the working environment was not conducive for Appellant to perform his duties smoothly.

The disciplinary authority erred at law by imposing a penalty of discharge from the Public Service Commission being a harsh one and causing a sense of shock to the Appellant when there were other available penalties in terms of section 50(1) of the Public Service Regulations, Statutory Instrument 1 of 2000.

The proposed grounds of appeal Applicant intends to add to the above grounds are:-

The Respondent erred in dismissing the Appellant on grounds of misconduct when he lacked the mental capacity to commit the offences for which he was charged.

The Respondent failed to appreciate the mental condition of the Appellant which, if it carried out a proper investigation, it would have appreciated and as a result it acted on the bases of a mistaken belief in dismissing the Appellant instead of terminating the employment of the Appellant on medical grounds and the dismissal is accordingly void.

The Respondent accordingly erred in conducting a hearing against the Appellant when the Appellant lacked the mental capacity to attend and conduct his defence.

Clearly the above grounds are an attack on Respondent, on issues which were never placed before it for consideration.  This is improper and as such should not be allowed.

See: (1)	S.T. CHIKANDA VS UNITED TOURING COMPANY LIMITED SC 7/99

(2)	FUNGAI GWANGWARA KHUMALO VS ZIBAGWE RURAL DISTRICT COUNCIL SC 21/05

(3)	C. KAMBUZUMA AND 22 OTHERS VS THE ATHOL EVANS HOSPITAL HOME COMPLEX SC 118/04.

I agree with Respondent’s submissions that since the issue of his mental capacity was not brought to the attention of Respondent, Respondent could not have conducted an investigation in that regard.  Respondent cannot therefore be attacked for not conducting an investigation on an issue it was not aware of.

I am further persuaded by Respondent’s submission that the medical documents will not serve any purpose.  This Court will be sitting as an Appellate Court and not as a court of first instance hearing a matter afresh on issues which ought to have been heard and determined by the tribunals aquo.  His dismissal, as correctly submitted by Respondent was based on the factual evidence that was placed before the Disciplinary Authority.

The medical documents do not in any way show that during the period he committed the Acts of misconduct he was mentally incapacited. They show that he was treated well after this period (8 August, 2014) at Parirenyatwa Annex after having fallen sick in April, 2014. In view of this, Section 14 of the Labour Act which Applicant would like to rely on in his appeal (discharge on medical grounds) will not assist him at all.

It is therefore my conclusion that leave to file the medical documents and new grounds of appeal cannot be granted.

To that end, the application is hereby dismissed with costs.

The Registrar is directed to re-set the appeal LC/H/182/15 for hearing.

Maunga Maanda & Associates – Appellant’s legal practitioners

Civil Division – Respondent’s legal practitioners