Meisie Makeletso Namasasu v Civil Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/239/16
HELD AT HARARE 1 JULY 2015
CASE NO
JUDGMENT NO LC/H/239/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/239/16

HELD AT HARARE 1 JULY 2015				CASE NO LC/REV/H/122/14

& 13 MAY 2016

In the matter between:

MEISIE MAKELETSO NAMASASU				Applicant

And

CIVIL SERVICE COMMISSION					Respondent

Before The Honourable L Hove, Judge

For Applicant			Mr T W Nyamakura (Legal Practitioner)

For Respondent		Ms K Warinda (Civil Division)

HOVE, J:

This is an application for review.

The applicant was employed by the respondent as a director in the Ministry of Finance.

She was arraigned before a disciplinary committee facing three counts of alleged acts of misconduct.

At the hearing, applicant through her legal representatives raised a preliminary issue wherein it was alleged that there had been some inconsistency between S.I. 1/2000 and the constitution.

The applicant in her application for review alleges that she raised several preliminary points which included the fact that she was not in agreement with the proposed manner of conducting the hearing and also that there had been some application for documents which were considered material.

A perusal of the record however only shows that the issue that was recorded in the minutes was just the constitutional issue. For all her other submissions, the minutes made a reference to an Annexure A.

The proceedings were then adjourned to enable the committee to consider the issues that had been raised in the preliminary.

The hearing committee had requested that the preliminary points be put in writing and that it would rule on the issues raised.

When the ruling of the committee was delivered, it did not only decide the preliminary issues but it was a decision on the preliminary issue plus a decision on the merits of the matter.

The applicant was aggrieved.  He was of the view that he was yet to be heard on the merits of the matter before a decision on the merits could be made.  He argues that the right to be heard was not attended.

The respondent does not argue with the facts that at the initial hearing, preliminary issues were raised and the request was made that the preliminary points be put in writing before the committee could respond.  The matter was adjourned. When the matter next resumed, the committee had made a decision which also decided the merits of the matter.  It was submitted that the reason why the committee proceeded in this matter was because in outlining the preliminary points in writing, the applicant had also made submissions on the merits of the matter.

Even though the applicant had touched on the merits of the matter.  The committee ought to have accorded the applicant the right to be heard on the merits before making a decision.  If it was felt that the applicant had made his submissions on the merit, it was proper to reconvene, deliver the decision on the preliminary issue and then make the observation that the submissions dealt extensively with the merits, then ask if the applicant had any more submissions before the committee could decide the merits of the matter.

The court finds favour with the applicant’s submissions that there was a gross irregularity in the proceeding a quo and that the irregularity was so gross it vitiated the entire proceedings in that the tribunal a quo failed to hear applicant in her defence on the merits of the charge once if was found that the preliminary points were without merit.

The regulations under which the applicant was charged require that a hearing be conducted and the member concerned be afforded the opportunity to respond to every allegation of misconduct and that substantial justice be done.

See section 45 (1) and 45 (2) of the Public Service Regulations, 2000.

The right to be heard is entrenched in our law see in this regard the case of Kanda v Government of Malaya (1962) AC 322 PC where the learned judge stated that the right to be heard must carry with it a right to know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them.

In casu this right was not afforded the applicant.

See also the case of Marumahoko v Chairman of the Public Service Commission & Another 1991 (1) ZLR 27 (HC).

The court therefore finds that the right to a fair hearing was not accorded.  The applicant ought to have been heard on merits of the matter not just on the preliminary issue.  The proceedings can thus not be allowed to stand with so gross an irregularity.  The entire proceedings must be set aside.  The applicant suffered prejudice in that a decision was made before he could present his case before the disciplinary authority.

In the case of Nyahuma v Barclays Bank of Zimbabwe (Pvt) Ltd SC 67/05 the learned late Judge of Appeal, SANDURA JA quoting from the South African case of Rajah v Ventersdorp 1961 (A) SA 402 AD made the following remarks

“Now I think it is clear that the court will not interfere on review with the decision of a Quasi-judicial tribunal where there has been an irregularity if satisfied that the complaining party has suffered no prejudice.”

I am satisfied in casu that the irregularity cause the applicant serious prejudice as a decision was made against him before he was heard.

The respondent has referred this court to the case of Smith Chataira v Zesa SC 83/01 and argued that quasi-judicial tribunals are entitled to follow their own procedures and are not bound by the ordinary rules of evidence.

This is true where the ‘own procedures’ followed do not conflict with the rules of natural justice the learned Judge of Appeal in the said Chataira case (supra) made the position clear.   He stated as follows;

“However the requirement of a fair hearing does not mean that employees must handle disciplinary proceedings according to the rigorous standards of a court of law.  The rules of natural justice require no more than that a domestic tribunal acts according to common sense precepts of fairness… there must be a hearing before disciplinary action is taken to ensure that the employee has an opportunity to  lead evidence in rebuttal of the charge, and to challenge the assertion of his accusers before an adverse decision is taken against him…”

It is this court’s considered view that the hearing committee in casu fell far too short of the less rigorous standard set by the court in the Chataira case (supra) when it decided the merits of the case after adjourning to decide preliminary points.

Having found thus on the first ground of review it becomes clear that the application for review must be upheld in relation to this ground alone and it makes it unnecessary for the court to decide the other grounds of review raised.

Accordingly, I make the following order;

The application for review succeeds.

The matter is remitted to the respondent for the matter to be heard de novo before a different disciplinary committee.

The decision of the initial disciplinary authority is set aside.

Each party will bear its own costs.

Mutetwa & Nyambirai, appellant legal practitioners

Civil Division  of the Attorney General’s Office, respondent’s legal practitioners