Leonard Karemba v Public Service Commission & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT No: LC/H/386/25
HELD AT HARARE CASE No: LC/H/683/25
In the matter between: -
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

JUDGMENT No:  LC/H/386/25

CASE No:	LC/H/683/25

In the matter between: -

LEONARD KAREMBA	APPLICANT

AND

PUBLIC SERVICE COMMISSION	1st    RESPONDENT AND

MINISTRY OF LANDS, AGRICULTURE,

FISHERIES, WATER AND RURAL DEVELOPMENT	2nd RESPONDENT AND

INTERNATIONAL FUND FOR AGRICULTURAL

DEVELOPMENT	3rd RESPONDENT

AND

THE ATTORNEY-GENERAL OF ZIMBABWE	4th RESPONDENT

JUDGMENT

Before the Honourable Mr Justice Jaravani J Harare, 26 September 2025.

For the Applicant: Mr F. Madondo	(Legal Practitioner) For the Respondents: In default

Unopposed Application for Review and quantification of damages for loss of employment and arrear remuneration.

BACKGROUND

The Applicant made a composite application for review and quantification of arrear remuneration and damages for loss of employment to this Court.

The application was never opposed by any of the Respondents despite service of the Application upon all the Respondents. Neither did any of the Respondents attend the Court hearing.

The Application was heard physically in open Court. The Applicant’s legal practitioner applied for default judgment which could not be granted by the Court despite the matter being unopposed because the Court had legal issues arising from the Applicant’s papers which it needed to be addressed on before judgment. The Court was of the view that it was proper for it to proceed to determine this matter in terms of Rule 29(b) (ii) of the Labour Court Rules, 2017 (hereinafter, ‘the Rules’) despite the Respondents’ default.

The Applicant’s composite application is titled; -

‘ Court Application for Review in terms of Rule 20(1) of the Labour Court Rules, 2017 as read with section 92EE (1) (C ) of the Labour Act (Chapter 28:01) and Court Application for quantification of arrear remuneration and damages for loss of employment in terms of Rule 14 subrule 1 of the Labour Act as read with section 89(2) (c)(iii) of the Labour Act (Chapter 28:01).’- page 4 of the record.

The Court raised the following issues at the hearing which it requested the Applicant’s legal

practitioner to address it on; -

Qualitative Jurisdiction of the Labour Court to preside over reviews from decisions of the Public Service Commission sitting as a review tribunal in terms of the Public Service Regulations.

Computation of the grace period for applying for review under Rule 20(1) of the Court Rules.

Authority of a litigant to institute a composite application for review and quantification of arrear remuneration and damages for loss employment before the Labour Court without a consolidation Order.

Whether section 89 (2) (c) (iii) of the Labour Act authorises the Labour Court to preside over quantification proceedings from decisions of the Public Service Commission?

Whether the Applicant’s Draft Order should be granted as drafted if he satisfactorily explains

away the preceding four issues raised by the Court?

The Applicant’s legal practitioner needed and requested an opportunity to more precisely address the Court on the issues raised by the Court after further research and the Court made a Case Management Order giving the Applicant an opportunity to make written submissions latest by 06 October 2025. The Applicant filed supplementary heads of argument which are now on record pursuant to his request.

The Applicant applied for a review of the 1st Respondent’s decision which confirmed a determination of guilty and penalty of dismissal that was imposed upon him by the 2nd Respondent’s disciplinary authority in terms of the Public Service Regulations, Statutory Instrument 1 of 2000, (hereinafter, SI 1 of 2000). The Applicant’s application for review was based on the following grounds: -

The 1st Respondent having already determined the Applicant’s Request for Review on 09

January 2025, it became functus officio.

The 1st Respondent’s confirmation of the Applicant’s guilty determination and subsequent dismissal by the 2nd Respondent’s Disciplinary Authority on 19 June 2025 is a legal nullity and therefore void ab initio.

The Grounds of Review are at page 10 of the record.

The Application for quantification is for quantification of arrear remuneration for a period of six months from 10 January to 09 July 2025 and quantification of damages for loss of employment for a period of three years. The Applicant never referred to any underlying Court Order, decision or award for the arrear remuneration and damages for loss of employment he sought to be quantified by this Court- (see page 23 of the record, paragraph 5 of the Applicant’s founding affidavit). Upon inquiry by the Court on this aspect during the hearing, the Applicant’s legal practitioner referred the Court to the 1st Respondent’s decision on review dated 09 January 2025 as read with the prayer in his request for review to the 1st Respondent-( pages 159 and 152 of the record, respectively), as the basis of the application for quantification. He submitted that the 1st Respondent’s decision on review dated 09 January 2025 reinstated the Applicant and where an employer is ordered to reinstate an employee, damages in lieu of reinstatement should necessarily be paid if the employer fails to reinstate the employee.

ISSUES FOR DETERMINATION

The issues for determination are the five issues raised by the Court as outlined in this judgment since this was an unopposed application. Issues 1 and 4 call for a consideration of this Court’s jurisdiction to preside over an application for review and quantification from a decision of the Public Service Commission sitting as a review tribunal under section 51 of SI 1 of 2000. Issues 2, 3 and 5 will only be considered if the Court finds that it has jurisdiction to preside over the application because a finding of absence of jurisdiction terminates the Court’s mandate to further relate to the case.

Jurisdiction of the Court to preside over an application for review and quantification from decisions of the Public Service Commission sitting as a review tribunal under section 51 of SI 1 of 2000.

The facts of this case are common cause. The Applicant was employed by the 2nd Respondent as a Procurement Specialist although he was seconded to the 3rd Respondent on a fixed term contract which expired on 30 November 2023. The Applicant was disciplined by the 2nd Respondent under SI 1 of 2000. The outcome of the disciplinary proceedings was adverse to the Applicant. A determination of guilty and a penalty of dismissal were made by the Disciplinary Authority. The Applicant contested the outcome of the disciplinary proceedings through a request for review to the 1st Respondent through the 2nd Respondent’s Disciplinary Authority in terms of SI 1 of 2000. Thereafter, the 1st and 2nd Respondents in their response to the Applicant’s request for review disowned the Applicant by alleging that he was employed by the 3rd Respondent so he was not a civil servant and his request for review could not be considered by the 1st Respondent- (page 154- 155 of the record).

The Applicant then approached this Court on appeal against the 1st Respondent’s decision disowning him and refusing  to consider his request for review. This Court confirmed the Applicant’s status as a civil servant under the purview of the 1st Respondent and ordered the 1st Respondent to consider the Applicant’s request for review in Case No LCH 882-23 of this Court- (page 156-157 of the record). The 1st Respondent ultimately, considered the Applicant’s request for review and made an order granting the Applicant’s request for review- (page 159 of the record). The applicant applied for quantification of the Review decision in this Court which was granted by this Court in Case No LCH 205-25 of this Court-( page 161-162 of the record). The 1st

Respondent then made a second decision on the Applicant’s request for review confirming the determination of guilty and the penalty of dismissal that was meted upon the Applicant by the disciplinary authority. It is that second decision which the Applicant sought to impugn by way of review to this Court.

The Applicant’s application for review cited Rule 20(1) of the Court Rules as read with section 92EE(1)(c) of the Labour Act as the legal basis of the application for review of the 1st Respondent’s determination. Rule 20(1) of the Court Rules provides that; -

20.(1) A person wishing to seek review of proceedings referred to in terms of the Act

,(Court’s emphasis), shall, within twenty-one days from the date when the proceedings are concluded, do the following: - [….].

Section 92EE (1) (c) of the Labour Act provides that; -

Subject to this Act and any other law, the grounds on which any proceedings or decision  conducted or made in connection with this Act may be brought on review before the Labour Court shall be-

[….]

gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.

The Court’s query against the Applicant for bringing proceedings conducted under Public Service legislation on review before the Court emanated from section 3 of the Labour Act which provides for the Application of the Labour Act. Section 3(2)(a) of the Labour Act provides that: -

‘For the avoidance of any doubt, the conditions of employment of members of the –

Public Service shall be governed by the Public Service Act [Chapter 16:04].’ Section 3(2)(a) of the Labour Act clearly removes members of the Public Service from the scope of the Labour Act unless there is a provision in the Public Service Act or any other legislation which specifically refers a certain procedure to the Labour Court - see City of Gweru v Masinire SC56/2018, Chingombe and Anor v City of Harare and Ors 2020(2) ZLR 1203(S). Some examples of such provisions in Public Service legislation are 26 of the Public Service Act, sections 51 and 52 of SI 1 of 2000 and sections 39(10) and 51 of the Public Service Commission (Commission Secretariat) Regulations, 2007 (SI 162 of 2007).

Section 26 of the Public Service Act and sections 51 and 52 of SI 1 of 2000 confer this Court with Appellate jurisdiction from decisions of both disciplinary authorities and the Commission in its capacity as both a disciplinary authority and a review authority- City of Gweru case supra. These provisions do not authorise a member aggrieved by a decision of the Public Service Commission in its capacity as a review forum to apply for review to this Court in the manner the Applicant has done. The oral submission by the Applicant’s legal practitioner that section 51, 52 or 56 of SI 1 of 2000 authorises this Court to preside over an application for review from a decision of the Public Service Commission in its capacity as a review forum was therefore not correct. Even the supplementary heads of argument that were filed by the Applicant’s legal practitioner did not further clarify the issue raised by the Court. In his supplementary heads of argument, the Applicant’s legal practitioner never conceded that SI 1 of 2000 does not confer this Court with review powers over decisions of the Public Service Commission in its capacity as a review forum. After citing the provisions of SI 1 of 2000 which confer this Court with Appellate jurisdiction only from decisions under Public Service legislation the legal practitioner went on to submit that: -

‘What is categorically clear from the above is that any complaint against the Public Service Commission’s decision is directed to the Labour Court. When a party reaches the Labour Court it is guided by the Rules of the Labour Court.’

The submission that any complaint against the Public Service Commission decision is directed to the Labour Court is not correct in the context of the provisions of SI 1 of 2000 because there is a difference between an appeal and a review although their ultimate objective is to have the decision sought to be impugned set aside. SI 1 of 2000 only confers this Court with appellate jurisdiction from public service decisions not review jurisdiction so it is not correct to say that any complaint against Public Service Commission decisions is directed to this Court. In further addressing this issue the Applicant’s legal practitioner further misconstrued the facts when he submitted that the Applicant is dissatisfied with the decision of the Public Service Commission as a disciplinary authority. There is nothing from the record which indicates that the Applicant ever appeared before the Public Service Commission as a disciplinary authority. All the Public Service Commission decisions on record were review decisions.

Rule 20(1) and section 92EE (1) (c) of the Labour Act which were cited in the Applicant’s application refer to ‘proceedings referred to in terms of the Act’ and ‘proceedings or decision made

in connection with the Act’; respectively. Such references to the Act in these provisions were clearly meant to exclude employees who are specifically excluded from the scope of the Labour Act under section 3 of the Labour Act. It would also be absurd to construe section 89(1) (d1) as conferring unlimited review jurisdiction on this Court over all disputes including those specifically excluded from the scope of the Act under section 3 of the Act.

Statutory provisions should be interpreted in a manner which permits their mutual co-existence in a situation where there is potential conflict between or among them. The applicant’s submission that section 89(1)(d1) of the Labour Act confers unlimited review jurisdiction over this Court to preside over all disputes which arise at any workplace because they are labour matters is therefore not correct.

The Applicant further submitted in his supplementary heads of argument that his application is in terms of section 89(1)(b) of the Labour Act. This could have been an error on his part since that provision refers to the jurisdiction of this Court to hear and determine matters referred to it by the Minister in terms of the Labour Act. This Court could not perceive the relevance of that provision to the Applicant’s application.

Section 39(10) cannot be applied to the present case since it confers this Court with review jurisdiction over Public Service Commission decisions arising from the grievance procedure for members in the Secretariat. Section 51 of SI 162 of 2007 which confers both review and Appellate jurisdiction on this Court over determinations or penalties made by the Public Service Commission could have been applicable had the Applicant been applying for review of a determination or penalty that was made by the Commission and further if he had managed to plead, prove and submit that he was a member of the Public Service Commission Secretariat. The Applicant cannot claim membership of the Public Service Commission Secretariat in a situation where he was employed by the 2nd Respondent which is clearly distinct from the 1st Respondent and he was disciplined under SI 1 of 2000 without any objection.

In the premises, in view of the exclusion of the conditions of service of members of the Public Service from the scope of the Labour Act and in the absence of a specific statutory provision in the Public Service Act or SI 1 of 2000 authorising this Court to preside over applications for review

from the decisions of the Public Service Commission in its capacity as a review forum this Court

finds that it has no qualitative jurisdiction to preside over the Applicant’s application for review.

The Applicant cited Rule 14 Subrule 1 of the Court Rules as read with section 89(2)(c) (iii) as the legal basis of his application for quantification of arrear remuneration and damages for loss of employment. Rule 14(1) of the Court Rules provides that: -

‘A court application shall be in Form LC 1 and shall be supported by one or more affidavits

setting out the facts upon which the applicant relies together with the draft order.’

Section 89(2)(c)(iii) provides that: -

(2) ‘In the exercise of its functions, the Labour Court may- [….]

in the case of an application made in terms of subparagraph (ii) of subsection 7 of section ninety-three, make an order for any of the following or any other appropriate order-

(iii) reinstatement or employment in a job: Provided that-

any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment;

in deciding whether to award damages or reinstatement or employment, onus is on the employer to prove that the employment relationship is no longer tenable, taking into account the size of the employer, the preferences of the employee, the situation in

the labour market and any other relevant factors;

should damages be awarded instead of reinstatement or employment as a result of an untenable working relationship arising from unlawful or wrongful dismissal by the

employer, punitive damages may be imposed;

Rule 14(1) of the Court Rules is a mere procedural guide on the form of applications which are made before the Labour Court in terms of the Labour Act or any other relevant and applicable law. Section 89(2)(c)(iii) of the Labour Act provides for the exercise of functions by this Court in the case of an application made in terms of section 93(7)(ii). Section 89(2)(c)(iii) of the Labour Act empowers this Court to make orders for reinstatement or any other appropriate order in the exercise of its functions in presiding over applications made in terms of section 93(7)(ii) of the Labour Act.

Section 89(2)(c)(iii) has a proviso that an Order of reinstatement shall specify an amount of damages in lieu of reinstatement and the onus is on the employer to prove that further employment or reinstatement is no longer tenable and an order for punitive damages may be made by this Court as an alternative to reinstatement. Section 89(2)(c )(iii) is among the provisions which need to be amended to realign it with the Labour Amendment Act No 11 of 2023 because the Amendment repealed the former section 93(7)(ii) and replaced it with a new section 93(7) which does not provide for applications to this Court.

The Court raised the issue that the Applicant’s application for quantification of arrear remuneration and damages for loss of employment is not based on any substantive award or order and the legal provisions cited by the Applicant as the basis of the application do not provide for such applications. The Applicant submitted that he was applying for quantification of the decision that was granted by the 1st Respondent on review. He referred the Court to pages 159 and 152 of the record to support the argument that he was reinstated by the 1st Respondent so his reinstatement by the 1st Respondent was the award on which the application for quantification was based. The Applicant sought quantification of arrear remuneration for a period of six months from 10 January to 09 July 2025 and quantification of damages for loss of employment for three years. In his prayer for relief on review to the 1st Respondent the Applicant in paragraph 4 of his prayer for relief sought reinstatement to his job as a Procurement Specialist and payment for unlawful suspension for three months from 12 April 2021 to 11July 2023(sic). The Applicant submitted that the relief he sought on review before the 1st Respondent was granted by the 1st Respondent in its first decision on page 159 of the record so his application for quantification was premised on the 1st Respondent’s decision. That submission is not correct because the 1st Respondent’s decision does not cover the period for which the Applicant sought quantification. Furthermore, there is nothing on record to show that the Applicant ever obtained any substantive relief for damages for loss of employment which could be used to sustain his application for quantification. In any event, even assuming the Applicant’s submissions in support of his application to be correct, this Court is of the view that it has no jurisdiction to quantify awards or decisions made under Public Service legislation without any specific provision authorising it to do so. The reasoning of this Court in its consideration of its jurisdiction to preside over the applicant’s application for review in this judgment equally applies to the application for quantification.

Section 89(2)(c) (iii) of the Labour Act which was cited by the Applicant in his application for quantification does not confer this Court with quantification jurisdiction over Public Service Commission decisions on review.

In the premises, the Court finds that it does not have jurisdiction to hear and determine the

applicant’s application for quantification.

Costs

The Applicant prayed for costs against the Respondents. He submitted that his disciplinary case was determined on 08 May 2023 and since then he has been struggling with life and getting in and out of Court because the Respondents have never complied with decisions and awards in his favour. He referred the Court to other Cases decided by this Court between the parties. The Court is not inclined to make an order of costs in favour of the Applicant in this case because he was not successful in all his applications. Costs should generally follow the result. The history of the dispute between the Applicant and the Respondents does not overshadow the result of the present applications. Since the Respondents never participated in the present proceedings the Court will not make any Order as to costs.

Disposition

It shall not be necessary for the Court to consider the other issues since it found that it has no jurisdiction to preside over the Applicant’s application for review and quantification of arrear remuneration and damages for loss of employment. In the premises, the application for review and quantification of arrear remuneration and damages for loss of employment is hereby dismissed for want of jurisdiction and there shall be no Order as to costs.

JARAVANI J

For the Applicant: Rufu-Makoni Legal Practitioners.

Respondents: In default