Simbarashe Madzinga v Secretary for the Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/702/14
HELD AT HARARE 10TH OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/702/14

HELD AT HARARE 10TH OCTOBER 2014	       CASE NO LC/H/APP/378/14 &

& 24TH OCTOBER 2014				       LC/H/179/12

In the matter between:-

SIMBARASHE MADZINGA						Applicant

And

SECRETARY FOR THE PUBLIC SERVICE COMMISSION		Respondent

Before The Honourable F.C. Maxwell, Judge

(IN CHAMBERS)

MAXWELL, J:

This is an application for leave to appeal to the Supreme Court.  This court dismissed an appeal by the applicant against dismissal on the basis that it had been done in terms of section 63 (e) of the Public Service Regulations, 2000, as amended.  Applicant had failed to resume duty after the expiry of his suspension on 29 June 2011 and was absent from duty for a continuous period in excess of thirty days.

For such an application to succeed applicant must demonstrate that there are prospects of success on appeal.  See Fiona Chikurunhe & 234 Others v Zimbabwe Financial Holdings SC-10-08.  Considering the proposed grounds of appeal I am not convinced there are any prospects of success on appeal.  The Public Service Regulations 2000 allow the discharge of a member who has been absent from duty for a continuous period in excess of thirty days without having been granted leave.  Applicant further seeks to rely on the allegation that there was no evidence to support respondent’s claims that he had indeed absented himself.  Whether or not applicant had absented himself is a factual issue.  The finding thereon cannot be challenged on appeal unless it is irrational.  In this case there is no basis for holding that the factual finding is irrational.  Applicant further challenges the discretion of this court in accepting the evidence of respondent whilst rejecting his.  It is trite that an appeal court will not interfere with the exercise of discretion unless there has been a misdirection.  I am not convinced there is any misdirection in this case.  Consequently the application fails.

The application for leave to appeal to the Supreme Court is accordingly dismissed for lack of merit.