Public Service Commission v Wilson Muyanga

IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/103/2013
HELD AT HARARE ON 16 NOVEMBER 2012              CASE NO. LC/H/155/08
In the matter between



PUBLIC SERVICE COMMISSION                             -Applicant
And

WILSON MUYANGA                                    –Respondent




Before The Honourable L. Kudya, President
For Applicant      - Mr S. Maphosa (Civil Division)
For Respondent     - In person




KUDYA, L.


      The parties cited above have been locked in protracted proceedings

pertaining to the case in which the Respondent was dismissed by the Appellant

following his conviction on a criminal charge wherein he was sentenced to an

effective period of imprisonment of eighteen months.



      A minimum of three rescission of judgment applications have been

handled by different Presidents of this court. Some of the applications were at

the instance of the now Applicant and some at the now Respondent’s instance.

When the parties appeared in this court it was apparent that the latitude which

the Labour court had allowed these parties to come back and forth to this court

on this one case almost boarders on abuse of the court.
      In view of the number of the cases awaiting determination by the Labour

court it was apparent that allowing this circus to continue would cause untold

prejudice to other litigants wishing to utilize the same facility for the resolution

of their disputes.




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      It is in the wake of the above that this court resolved to put a plug to all

this by asking the parties to consolidate all the issues so that the matter could

be dealt with definitively by this court. The decision in this matter is intended to

see an end to these same parties’ continued appearance at the Labour Court.

The parties submitted their consolidated submissions on all the issues pertinent

to this case. These are the submissions on which the court based this judgment.



      Before delving into the consolidated arguments it is pertinent to give a

background to this whole case. The now Respondent was in the employ of the

Applicant within the Ministry of Justice working at Gweru Magistrates Court at

the time of the alleged misconduct .He was charged with the offence of

defeating the course of justice , was convicted and sentenced          to eighteen

months effective imprisonment. He served part of the sentence before he was

admitted to bail pending appeal.



      When he sought to resume his duties with the Applicant upon his release

from prison he was advised that he had been discharged from the Service in

terms of section 63 (d) of the Public Service Regulations SI 1/2000.Aggrieved by

that fact the Respondent appealed to the Labour court.




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      The basic ground of his appeal was that the Applicant had misdirected

itself by discharging him from the Service without following the procedure

contained in section 47 of the said Regulations. His argument was effectively

that the applicant should have conducted a hearing into his matter and heard

him out before dismissing him from employment.



      On the date set for the appeal hearing the Applicant defaulted. The then

Senior President Mutema upheld the appeal in default of appearance of the

Applicant. The Applicant applied for rescission of the default judgment by

Honorable Mutema .On the date of the hearing of the rescission application,

President Makamure dismissed the rescission of judgment application on the

basis that the
                                              JUDGMENT NO. LC/H/103/2013



applicant had not filed its heads of argument. She also mentioned on the merits,

the fact that the Appellant had discharged the Respondent improperly because

it had not conducted a disciplinary hearing on the matter first.



       The truth of the matter however was that the Applicant’s heads of

argument were indeed in the record and the Court had not seen them.

President Makamure had decided the matter on the erroneous view that the

Applicant had not filed its heads. To rectify the problem, the applicant invoked

section 92 of the Labour Act to have that judgment corrected as it contained a

patent error. The parties this time appeared before President Musariri who

agreed with the fact that President Makamure’s judgment had been made in

error. In this regard President Musariri overturned President Makamure’s

judgment.



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      This brought the parties back to the default judgment by President

Mutema. The parties again appeared before the now Senior President Mhuri

who directed that the matter be set down for a hearing on the default order by

Senior President Mutema.



      The matter was then brought before President Chidziva who instead of

dealing with President Mutema’s default order got convinced by the Respondent

that the application which was before her was a rescission of the order by

President Musariri. The argument which was before President Chidziva was that,

when Respondent had consented to condonation before President Musariri he

only consented to condonation of the late filing of the rescission of judgment

application but not to the setting aside of President Makamure’s decision. In the

result, President Chidziva went on to set aside President Musariri’s decision.



       This effectively left the parties with the order by President Makamure and

the order by Senior President Mutema. It is these two orders which this

judgment will




                                              JUDGMENT NO. LC/H/103/2013


address. These are the orders where the parties were asked to file consolidated

heads and related documents so that the matter can be heard to finality.

      This court will address primarily three issues. These are: the judgment by

President Makamure and whether it ought to be rescinded, the Judgment by

President Mutema whether it ought to be rescinded and the merits on the main

case that is whether the Respondent was properly dismissed or not.




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President Makamure’s judgment

       Section 92C (1)(c )states
        “Subject to this section, the Labour court may on application rescind or vary any
       determination or order
       c) in order to correct any patent error “



       It is clear from the facts of this case that President Makamure’s judgment

was premised on the erroneous view that there were no heads of argument

filed by the Applicant as required by the rules of court. It is on that basis that the

President dismissed the Applicant’s application for rescission of judgment. It is

on the basis of this patent error that President Makamure’s judgment should be

set aside .This is the             very reason which President Musariri had used to set

it aside. Had it not been for the dimension that was brought before President

Chidziva that President Musariri had wrongly endorsed that the rescission of

judgment had been by consent when that was not so,              the matter would long

have been put to rest and preoccupation would now have been with President

Mutema’s judgment . In the circumstances the order by President Makamure is

set aside on the basis that it was obtained on the basis of an error. This takes us

to the order by President Mutema.



Senior President Mutema’s judgement

       Section 92 which has been quoted above also indicates that rescission can

be granted in cases where an order is made in the absence of the party against

whom it


                                                    JUDGMENT NO. LC/H/103/2013

is made if the person so applying satisfies the court that he was not in willful

default and that he has prospects of success on the merits.

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      The law pertaining to rescission of judgments is set out in the case of

Chetty vs Law Society Transvaal 1985 (2) SA 756 where MillerJA stated the

following


      ”------it is clear that, in principle and in the long standing practice of our courts two essential
      elements of sufficient cause for rescission of a judgment by default are:
      (i)            that the party seeking relief must present a reasonable and acceptable
                     explanation for his default; and
      (ii)            that on the merits such party has a bona fide defence which prima facie, carries
                     some prospects of success----------“


   Applying this principle to the facts of the instant case, it is the Applicant’s

contention that, it failed to appear before President Mutema on the set down

date because the Counsel who was seized with the matter was on short notice

required to attend a meeting outside the country . As he got busy with the

arrangements he forgot that he had a matter set down for that date. When he

came back from the trip he realized that the court had entered default

judgment against the Applicant.



   The question to be answered is whether the excuse given by the Applicant’s

Counsel in this respect was reasonable. The Respondent contented that the

Applicant’s counsel is not a sole officer in his office and to that extent he should

have made arrangements with his colleagues to stand in for him.



   It is accepted that when one is engrossed in anything that takes ones

attention like the trip which the Applicant’s counsel submits he was busy

preparing for,it is possible to forget to attend to some issues. Unfortunately

some of the issues can be critical like in the instant case where it was imperative

that Applicant’s counsel attends court or at least send a representative.


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                                               JUDGMENT NO. LC/H/103/2013



   The court also took judicial notice of the fact that Applicant’s staffing levels

have over time been sufficient cause for concern. In more than one case which

appear in

the courts there has been great changeover of the personnel representing the

same case. Further to that, the level of representation has left a lot to be desired

with some of the officers demonstrating their ignorance of basic legal issues.

This has made it       difficult for the court which will be dealing with their

submissions.



      It is conceded that Applicant has not been spared the brain drain by

officers in quest for greener pastures but that it should not be an excuse for the

Applicant not to take its cases before the courts seriously. In the instant case,

the applicant had an interest in defending the appeal but its failure to attend on

the hearing dates smacks of lack of seriousness on its part.



      As pointed out by the respondent the Applicant’s counsel should have

made effort to get somebody to stand in for him on the matter. However

assessing that conduct in the light of the definition of willful default the court is

satisfied that conduct by the Applicant’s in the wake of the facts of the instant

case does not come anywhere closer to deliberately refraining from attending

to court proceedings. It therefore was more negligent than deliberate in the

court’s view.



      On the merits Applicant submitted that it had a good case. It

distinguished the provisions of section 63 of the Regulations where the

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employer is allowed by law to summarily dismiss an employee on the basis of

the employee’s serving of an effective imprisonment term.



      It draws parallels with situations where section 47 applies .It was its

submission that section 47 applies to a case where the employee has merely

been convicted and not necessarily sentenced to imprisonment exceeding three

months as is the case with section 63 of the Regulations.


                                             JUDGMENT NO. LC/H/103/2013



      The argument advanced by the Respondent that he lodged an appeal

against his criminal conviction and sentence is neither here nor there. This is so

because his admission to bail does not in any way mean that he is innocent.



      The law is clear that an appeal in a criminal matter does not suspend the

conviction and the sentence until a competent court of law sets that aside. It

would therefore be irregular for the Respondent to argue that he should have

been subjected to a disciplinary hearing before he was dismissed from the job

on the basis of his serving an imprisonment term in excess of three months.



      The question to be answered is: what would the employer be disciplining

him over, what act of misconduct would that be to be brought for a hearing

within the ambit of section 47 of the Regulations?



      It is important to note that the mischief which section 63       sought to

address in the court view is that the section was intended to deal with cases

where by the very nature of the penalty of effective imprisonment imposed on



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the employee such an employee could not be able to avail self to give service to

the employer. In this case the disciplinary hearing would not serve any purpose.

This is in contrast to section 47 where if one is for example one is convicted of

theft and is made to made to pay a fine etc, one could still be available to give

service to his employer pending the employer’s determination on whether the

act complained of can on a balance of probabilities entitle the employee to his

discharge or any other related penalty.



       In the instant case the facts are almost on all fours with the fact s of the

cases cited by the Applicant. The cited authorities spell out instances where the

employer is empowered to summarily dismiss an employee without conducting

a formal hearing.


                                               JUDGMENT NO. LC/H/103/2013

       In any event the other practical question to ask is: if in terms of section of

the Regulations 63 the employee is already serving the term of imprisonment

how is the employer expected to conduct any hearing in his case.



      This court is persuaded by the case of Runesu vs Muchokori HH 21/97

which was cited by the Applicant. In that case the point was made clear that one

can summarily be dismissed on the mere production of the certified extract

from the court record book confirming the sentence imposed on the employee.



If however like in the case of Anatos Mpofu v Commissioner of Police and the

Police Service Commission SC15/08 the conviction and sentence are set aside

on appeal in that case the employee can ask to be reinstated as the basis for

his dismissal would have fallen away.



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       With reference to the facts of the instant case, it is clear that given the

above interpretation of the law Applicant has good prospects of success. The

court did not deem it necessary to comment at length on the ancillary issues

raised by the parties like issues of the request for further review placed before

the Applicant by the respondent earlier on as they do not add anything or

detract from this court’s finding that the instant case has merits on the basis of

the above interpretation of the law.

At the end of it all the court is satisfied that the Applicant made a good case for

Rescission of the default judgment by Senior President Mutema. The application

should therefore succeed.

It is therefore ordered as follows:

      1. The judgment by President Makamure dated 14 May 2010 having been

      made based on a patent error be and is hereby set aside.

      2. The application for rescission of the default judgment by Senior

      President Mutema on 5 October 2009 being with merit be and is hereby

      upheld.

      3. No order as to costs

L.KUDYA PRESIDENT

LABOUR COURT




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