Muchineripi Zimbovora v Office of the Auditor-General

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/136/20
HELD AT HARARE ON 17TH MARCH, 2020
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/136/20

HELD AT HARARE ON 17TH MARCH, 2020	       CASE NO. LC/H/189/19

AND 19TH JUNE, 2020

In the matter between:-

MUCHINERIPI ZIMBOVORA						Appellant

And

OFFICE OF THE AUDITOR-GENERAL					Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Ms. N. Kangara (Legal Practitioner)

For Respondent	:	Mr. B. Magogo (Legal Practitioner)

MHURI J.

Appellant was in respondent’s employ and on the 10th October, 2018 was dismissed after having been found guilty of acts of misconduct in terms of the Public Service Regulations Statutory Instrument 1 of 2000.

He appealed to this Court on the 26th September, 2019 after having been condoned for the late noting of his appeal.  On the 8th October, 2019, respondent filed its response to the appeal and in turn appellant filed his heads of argument on the 30th October, 2019 and respondent on the 13th November, 2019.  It is in its Heads of Argument that respondent raised the issue of the bar operating against appellant for his failure to file his Heads of Argument timeously in compliance with Rule 26(1) of this Court’s Rules Statutory Instrument 150 of 2017.

On the date of hearing of this appeal (17th March, 2020) respondent persisted with this issue raising a point in limine that appellant is barred as he filed his heads of argument out of time by 6 days.

In response to the respondent’s submission, appellant conceded that indeed he filed his heads of argument out of time.  That notwithstanding, he was making an oral application for the upliftment of the bar in terms of Rule 26(2)(b) of the Rules.

In her submissions Ms. Kangara stated that the appeal was being handled by Ms K. Mukanhairi who had miscounted the dates for the filing of Heads of Argument.  She (Ms. Kangara) had only been given the file the day before the hearing.  It was only then that she realised that the Heads of Argument were filed out time.

As regards prospects of success, it was her submission that the appeal enjoyed high prospects in that –

The Disciplinary Committee erred in convicting appellant in terms of paragraph 4 of the Public Service Regulations when nothing at all was proved to the effect that he was disrespectful to his superiors by failing to answer calls made to him.

The Disciplinary Committee erred in finding that Appellant offered disrespectful responses and persistently coming late to work.

Nothing was produced that proved that his actions were inconsistent and prejudicial to the discharge of his duties.

The Disciplinary Committee failed to give reasons for choosing a maximum sentence and that on its own is a misdirection that vitiates the whole sentence.

She prayed that the application for the upliftment of the bar be granted.

Respondent is opposed to the granting of the application.  It argued that there is no explanation by appellant either in the supporting affidavit by Mukanhairi or in the oral submissions why a chamber application was not made as soon as appellant was put on notice through respondent’s Heads of argument that his Heads of argument were out of time.  It argued further that being given a file a day before should not be taken as a reasonable explanation as, once a firm is instructed, it becomes seized with the matter.

As regards prospects of success in the appeal, respondent submitted that appellant did not enjoy any prospects at all.  Respondent attacked the grounds of appeal as follows:-

Ad ground 1 –

That appellant wants to trivialise the proceedings as the Public Service Regulations were used as a transitional measure pending promulgation of Regulations for the Audit Office.  Appellant was insubordinate and disrespectful to his superiors and not to a member of the Public.

He accepts that he was disrespectful but not to a member of the public.

Ad ground 2 –

Respondent’s submission was that by serially coming late and acting in a disrespectful manner to his superiors, this conduct was clearly inconsistent with the proper discharge of his duties.

Ad ground 3 –

It was submitted that this ground was based on an untruth as appellant was accorded a chance to mitigate.  Even assuming it’s a good ground, the failure to accord an employee an opportunity to mitigate is not an appeal but review ground.

Ad ground 4 –

Respondent’s submission was that appellant is misconstruing the charge he was facing.  He focuses on late coming when in fact the Designated Agent found him guilty of insubordination and discourteous behaviour arising from his response when he was questioned about his late coming.

Respondent prayed that the application be dismissed with costs.

In her reply appellant abandoned ground 3 of his notice of appeal.

Sub-rule (1) of Rule 26 provides for the filing of Heads of argument by an applicant or appellant who is represented, be it by a Union representative or legal practitioner.

Sub-rule (2) of the same Rule provides that,

“No legal practitioner or representative shall be allowed to make submissions in a matter without having filed heads of argument:-

Provided that a party who has been barred may –

make a chamber application to remove the bar, and the Judge or Court may allow the application on such terms as to costs and otherwise as he or she thinks fit; or

make an oral application to remove the bar at the hearing of the application or appeal.”

It is my view that even though the Rules provide for an oral application of the removal of the bar on the date of hearing, it is only proper and courteous to both the other party and the Court for a party who has been put on notice well before, to file a chamber application for the upliftment of the bar instead of waiting until the date of hearing to make an oral application.  The other party may, by the same reasoning also wait until the hearing date to raise the issue of the bar.

In applications such as this one where Rules of the Court have not been complied with, it is imperative upon the defaulting party to give a credible explanation as to why it did not act as required by the Rules.  The party is also obliged to convince the Court that it has good prospects of success in the matter.

In casu, appellant was put on notice by respondent in its Heads of argument filed on the 13th November, 2019.  Appellant did not do anything about the issue of the bar raised therein, but waited until the date of hearing 17th March, 2020 to make an oral application on the ground that the Rules permit this.  These are not the actions of a serious litigant.

If appellant was sorry for not complying with the Rules, it was only prudent for him to have mitigated his degree of non-compliance by approaching the Court sooner, seeking the Court’s indulgence.  I agree with the respondent’s submission that the non-compliance is grave in this matter.

Coming now to the prospects of success, it is my finding, having considered the grounds of appeal and the parties submissions, that the appeal does not have any prospects of success at all.

Appellant sought to amend the 1st ground after realising that the way he worded the ground to refer to a member of the Public or Public Service was wrong as the facts revealed that he was disrespectful to his superior.  There was no denial that he was disrespectful to his superior.  I denied the amendment.  This ground was therefore defective as it incorrectly referred to any member of the Public Service.

As for the 2nd ground, it is common cause that appellant refused to sign a memorandum given to him by his superior.  In his response, to the memorandum, appellant offered disrespectful responses.  This conduct clearly is inconsistent with the proper discharge of one’s duties and goes to the root of the contract of employment.  It is to be noted that, applicant was not only charged with habitual late coming to work as he is trying to portray in his submissions.

When the principle as enunciated in the case of –

MATEREKE VS C.T. BOWRING (PRIVATE) LIMITED 1987 (1) ZLR 206 @ 211

was brought to the attention of appellant’s legal practitioner, she conceded and stated that she stood guided by the Court.

On the 4th ground, when the Court pointed to the reason given in paragraph 3 of the Misconduct Determination and Penalty letter dated 18th October, 2018, all the legal practitioner could say was “I stand guided.” The same answer was given when the Court brought to his attention the legal principle that the imposition of a penalty is the sole discretion of an employer and that if the misconduct goes to the root of the contract, the employer is entitled to impose a dismissal penalty.

Appellant abandoned ground 3, so I will not address it.

I am in agreement with respondent’s submission that the appeal does not enjoy any prospects of success at all.

Resultantly, I will dismiss the application for the upliftment of the bar and order that the matter proceeds in terms of the proviso to Rule 34(5)(b) which obliges the Court to deal with the matter as if it was abandoned.

It is therefore ordered that:-

Appellant’s application for the upliftment of the bar operating against him for failure to file his Heads of Argument timeously in terms of Rule 26(1) be and is hereby dismissed .

Appellant therefore remains barred.

The matter proceeds in terms of the proviso to Rule 34(5)(b).

The Registrar to reset and call the parties for continuation of the matter.

MUKANHAIRI-MAKODZA ATTORNEYS- Appellant’s legal practitioners

MAKUWAZA & MAGOGO ATTORNEYS – Respondent’s legal practitioners