Lioyd Machacha v Doctor C. Dhege N.O. & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/350/2024
HARARE, 23 MAY 2024 29 AUGUST 2024
CASE NO LC/H/1067/23
LIOYD MACHACHA
APPLICANT
DOCTOR C. DHEGE N.O.
1st RESPONDENT
HEALTH SERVICE COMMISSION
2nd RESPONDENT
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LIOYD MACHACHA

DOCTOR C. DHEGE N.O.

HEALTH SERVICE COMMISSION

Before the Honourable G. Musariri Judge:

For Applicant - Mr L. Machacha, Applicant
For Respondents - Mr C. Gutu Advisor and Ms A. Magunde Officer

MUSARIRI, J:

On the 29th December 2023, applicant filed an application in this Court for the review of his dismissal by respondents. The 2nd respondent opposed the application. On the 12th January 2024 the Court dismissed applicant’s points in limine. Whilst the review is still pending, on 9th May 2024 applicant applied for the referral of the matter to the Constitutional Court. Again 1st respondent opposed the application. This judgement deals with the application for referral to the Concourt. The pertinent portion of the application reads as follows,

“Take further Notice that the application for referral to the Constitutional Court seeks to have the following questions answered;
1. Whether or not the tenure of the Health Service Board continued beyond 4 January 2023?
2. Whether or not there was a Health Service Commission sworn in terms of s 320(5) of the Constitution that resolved to give the Acting Secretary power to act as a Commission between

3. When did the Chairman of the Health Service Commission legally assumed office?
4. Whether or not the Commission can ratify decisions of the Secretary in terms of paragraph 10 of the Second Schedule to the Health Service Act (Chapter 15:16) in the absence of a lawfully constituted Commission?


5. In the absence of a properly constituted Commission, can the Secretary litigate in the name of the Commission without being authorised to do so?
The accompanying affidavits and documents are tendered in support of this application.”

In its opposing affidavit, 1st respondent dealt with each and every one of the five (5) questions. The following is an excerpt of the relevant portions of the opposing affidavit,

“Whether or not the tenure of the Health Service Board continued beyond 4 January 2023
9.1 No constitutional issues arise from this point. This is a factual inquiry that has no bearing on the Constitution. The tenure of the then Health Service Board does not have any implications on the Constitution …
Whether or not there was a Health Service Commission sworn in terms of section 320 of the Constitution that resolved to give the acting Secretary power to act as a Commission between 4 January 2023 to 4 January 2024.
10.1 Again no constitutional issue arises from this point. The existence of the Health Service Commission is provided for in section 3 of the Health Service Act Ch 15:06.
10.3 In the present case the decision and actions of the Acting Secretary were ratified out of caution by constitutionally compliant Commissioners.
When did the Chairperson of the Health Service Commission legally assume office
11.1 The question does not raise any constitutional issues. The point is further frivolous and vexatious. …
11.3 Reference to section 344 of the Constitution by the Applicant is misplaced. Section 344 does not apply to the Respondent as the Respondent is not a Constitutional body. The Respondent is a creature of the Health Service Act and not the Constitution.
Whether or not the Commission can ratify decisions of the Acting Secretary in terms of paragraph 10 of the second schedule to the Health Service Act Cha 15:16 in the absence of a lawfully Constituted Commission.
12.1 Again no Constitutional issue arises from this point. This point raises a point of law that should be discussed on appeal as opposed to the Constitutional Court. The point is also frivolous, vexatious and does not have any prospects of success even as a ground of appeal. … In the absence of a properly constituted commission can the secretary litigate in the name of the Commission without being authorised to do so.
13.1 No constitutional issue arises from this question, …
13.3 There is even evidence of authorisation in the form of a resolution ratifying the decisions and actions of the Secretary. The point is therefore frivolous and vexatious.”

The application for referral was made in terms of section 175(4) of the Constitution of Zimbabwe which provides that

“If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request as merely frivolous or vexatious.”


The provision has been elucidated in case law such as,

Makoto v Mahwe

Per Malaba CJ at P 31 c-e - 2020(1) ZLR 26 (CC)

“The purpose of the exercise of the jurisdiction of a subordinate court under s 175(4) of the Constitution is to protect the process of the Court against frivolous or vexatious litigation. The standard by which the facts on which the raising of a question is based must be measured is put so high so as to enable the person presiding in the lower court to stop legal proceedings that should not have been launched at all.

In S.V. Nyathi cc -16-19, the Court also explained the importance of the procedure under S 175 (4) of the Constitution at p. 10 of the judgement:

“The importance of guarding the Court against the abuse of its process through the adjudication of matters that ought not to have passed the frivolity or vexatiousness test cannot be overemphasised. The Court must protect its integrity and ensure that it only adjudicates that which it is constitutionally mandated to hear and determine. Consequently, where the procedures of the Court are used to achieve purposes for which they are not intended that would amount to an abuse of process. It is in this context that presiding persons ought to exercise their minds when seized with a request for referral to the Court.”

It is clear from the foregoing that the question/s sought to be referred to the Concourt must be both constitutional and serious or substantial. The Court is persuaded by $1^{st}$ respondent’s argument that each of the questions raised does not amount to a constitutional matter. The questions do not involve the interpretation, protection or enforcement of constitutional right/s. The questions raise matters within the purview of the Health Service Act, company law or the common law. Only the $2^{nd}$ question mentions the Constitution. It references s 320(5) which reads

“Before entering office, members of Commissions must take oath before the President, or a person authorised by the President, the oaths of loyalty and office in the forms set out in the Third Schedule.”

Whether or not the Commission in casu was sworn per s 320(5) does not arise in this matter. The $1^{st}$ respondent is not covered by that provision because of s 318 of the same Constitution which provides that


“This Part applies to the Commissions established by this Constitution, and to the members of every such Commission.”

The Commission was established by the provisions of the Health Service Act. That sets it apart from the Constitutional Commissions which are subject to the provisions of s 320(5). It is therefore concluded that the questions applicant wishes referred do not raise relevant constitutional questions for determination by the Constitutional Court. By implication the frivolity and vexatiousness test does not arise. The questions fall at the first hurdle i.e. the Constitutional muster.

Wherefore it is ordered that

1. The application for referral of matter to the Constitutional Court be and is hereby dismissed;

2. The Registrar of this Court is directed to re-set the review application for hearing on the earliest available date; and

3. Costs shall be costs in the cause.

G MUSARIRI
J-U-D-G-E


LC/H/1067/2024
LC/H/
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