MAFUSIRE J: This was an urgent chamber application
for an interdict. I heard it on 14 February 2017 and reserved judgment.
Evidently the application
was prepared without regard to the elementary requirements for an interlocutory
interdict. Even the argument on urgency was tenuous.
The applicants were
husband and wife. They were teachers at Chingoma High School, Mberengwa
District, Midlands Province [“Chingoma”]. Between them they had
clocked twenty six years of continuous service at the school: the first
applicant, the husband, having done ten years, and the second applicant, the
wife, sixteen years. These are appreciable lengths of service by all accounts.
Ordinarily you do not just uproot someone like that from their station against
their will without very good reasons. The applicants were uprooted.
A problem arose between
the applicants and a fellow teacher at the school, a lady. She complained of
prolonged sexual harassment or abuse by the first applicant. All three were in
the same department. The second applicant was the head. She got entangled, undoubtedly
driven by marital interests. The complainant also raised multiple complaints
against the second applicant. She reported, among other things, that the second
applicant had stopped supervising her work. She said the second applicant was
sending her stressful telephone message. She said on one occasion the second
applicant had hit her with an elbow. On another, she had spat in her face.
The school convened a
disciplinary enquiry. The applicants were found guilty. A uniform penalty was
imposed against both. It was threefold: a fine of $200 each, to be recovered
from the salaries; a transfer from Chingoma to any school within the district;
and a reprimand.
The disciplinary
proceedings were concluded in November 2016. The outcome was communicated to
the applicants by letters dated 13 January 2017. However, these were only served
on the applicants on 30 January 2017. The respondents argued that that was when
the clock began to tick if the applicants wished to apply on an urgent basis.
In February 2017 the
respondents set in motion the process to transfer the applicants in execution
of the sentence. Among other things, standard term transfer forms were served
on them. But the reason stated on those forms was patently incorrect, namely
that the transfers were pursuant to some request previously made by the
applicants. In the urgent chamber application, the applicants initially pounced
on this mistake. However, Mr Midzi,
who appeared for them, eventually conceded that the mistake was not material.
The applicants would also
complete assumption of duty forms. The new school, Vubwe Secondary School [“Vubwe”],
was some 100 kilometres away from Chingoma.
The applicants were
aggrieved by both the disciplinary process and the outcome. They decided to
appeal to the Labour Court. Against conviction they would challenge the
propriety of the disciplinary proceedings, which to them was a complete nullity
by reason of the process having been conducted way outside the mandatory
statutory period. As for the sentence, they would argue that it was draconian and
that it induced a sense of shock.
Pending appeal, the
applicants would simultaneously file the urgent chamber application to stop the
transfers.
That manifestly was the
intention. But it seems things did not quite go according to plan. The urgent
chamber application was only filed on 9 February 2017. As for the appeal to the
Labour Court, it was not until Monday, 13 February 2017 that it was finally
filed, i.e. the day before the hearing. The applicants blamed the Registrar of
the Labour Court for the delay.
The delay in filing the
appeal did not cause any immediate problems. However, the apparent delay in
launching the urgent chamber application did. The period between the
applicants' receipt of their sentence on 30 January 2017 and the filing of the
application on 9 February 2017 was not explained. Not unexpectedly, the
respondents pounced on this and took the point in limine. I reserved judgment and opted to hear the merits.
The proceedings had to be
adjourned briefly. It seemed the situation on the ground had shifted somewhat.
Among other things, whilst Mr Midzi
was insisting that the applicants had not yet shifted to Vubwe, Mr Chingwere, for the respondents,
maintained that not only had they in fact shifted, but also that two other new
teachers had since been drafted to replace them at Chingoma. So the purpose of
the brief adjournment was to enable the legal practitioners, as officers of the
court, to ascertain the correct position on the ground. They did.
It transpired that the
applicants had since signed the assumption of duty forms and had assumed duty
at Vubwe the day before the hearing. It was said the fourth respondent, Chingoma's
Headmaster, had actually been pressing the applicants to remove their
belongings from the school house to pave way for the new teachers.
Mr Midzi's strongest argument, both on paper and in oral submissions,
was that the disciplinary proceedings were a complete nullity. The applicants
had challenged them. Until the outcome was known, it was wrong for the
respondents to purport to execute the sentence of transfer. It would be a
breach of the applicants' constitutional rights of access to the courts and to
have their dispute determined fairly. If they succeeded on appeal after they
had already been transferred, any remedy would be a brutum fulmen.
Throughout the hearing I
had to implore the parties repeatedly, Mr Midzi
in particular, to systematically address the requirements for an interlocutory
interdict as they applied to this case.
For what it is worth, the
requisites for an interlocutory interdict are:
1
a prima
facie right, even if it be open to some doubt;
2
a well-grounded apprehension of
irreparable harm if the relief is not granted;
3
that the balance of convenience favours
the granting of an interim interdict;
4
that there is no other satisfactory
remedy;
5
that there are reasonable prospects of success
in the merits of the main case.
see Setlogelo v Setlogelo; Tribac [Pvt] Ltd v Tobacco
Marketing Board;
Hix Networking Technologies v System
Publishers [Pty] Ltd & Anor; Flame Lily Investment Company [Pvt] Ltd v Zimbabwe Salvage [Pvt] Ltd and Anor and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent &
Anor.
After full argument on
the merits I reserved judgment. Here now is my judgment on both the point in limine and on the merits.
[a] Urgency
The respondents charged
that the applicants had slept on their rights. Quoting from Kuvarega v Registrar – General & Anor and Econet Wireless [Pvt] Ltd v Trustco Mobile [Pty] & Anor, the respondents argued
that what constitutes urgency is not only the imminent arrival of the day of
reckoning. A matter is also urgent if, at the time the need to act arises, it
cannot wait. Urgency which stems from a deliberate or careless abstention from
action until the deadline draws near is not the type of urgency contemplated by
the Rules.
The respondents argued
that the need to act had arisen on 30 January 2017. The delay to 9 February
2017 had not been explained. Therefore, the matter ought not be treated as
urgent and must therefore be dismissed on that basis.
Mr Midzi argued that there was no real delay. The dates bandied about
by the respondents had to be viewed in context. Applicants were rural teachers.
There were great distances between their school and the lawyers' offices in
Zvishavane, a town about 100 kilometres away. There were also great distances between
their school or the lawyers' offices and the Labour Court Registry in Gweru;
and between their school and the High Court Registry at Masvingo. Given that
several documents had to be procured from various places and from various
offices, and given that affidavits had to be drafted and signed by people far
away, and given that it was processes for two different courts that were being
prepared at the same time, the delay was neither fatal nor inordinate. Mr Midzi stressed that the delay was a mere
seven working days.
In Econet Wireless [Pvt] Ltd v Trustco Mobile [Pty], supra, the delay
was three weeks. The applicants [respondents on appeal] had been based in
Namibia. Their Counsel of choice was based in South Africa. The matter was
proceeding in the Zimbabwean High Court. The applicants had to brief lawyers on
highly technical matters. Both this court, on first instance, and the Supreme
Court, on appeal, accepted that the explanation for the delay had been
reasonable. The matter was treated as one of urgency.
The applicants' situation
herein is not quite comparable. However, nothing is ever cast in stone. Every
case depends on its own set of facts. Given that applicants were teachers at a rural
school; that they had to cover appreciable distances to go and brief their
lawyers; that it had been necessary for the lawyers to prepare draft affidavits
and run them past the applicants before having them commissioned; and given the
distances to be covered in filing documents at two different courts the
Registries of which were in two different towns, almost 200 kilometres apart, I
considered it exceedingly harsh to non-suit the applicants by reason of a mere seven
day delay. I did accept Mr Midzi's submissions
“from the Bar”.
Therefore, I conclude
that the matter was indeed urgent.
[b] Prima facie right
This was probably a
border line case. A teacher gets employed by the Public Service knowing full
well that he or she may be transferred at any time. No member of the Public
Service, or any other employee for that matter, may have the right to be
permanently stationed at one place, unless their contracts of employment expressly
said so.
Mr Midzi said in the case of Taylor
v Minister of Higher Education & Anor it was held that
professional employees of long standing, holding senior posts, should not be
transferred without account being taken of their personal situation and wishes.
In casu, he pointed to the
applicants' combined twenty six years of service at Chingoma, and to the fact
that the second applicant was a head of department.
However, Taylor's case is manifestly an
inapposite precedent. Therein, the court was concerned with a transfer that was
being executed without observance of the audi
alteram partem rule of natural justice. Members of the Public Service, like
Mr Taylor had been, could be transferred even without their consent. But the
Supreme Court held that “without their consent” did not mean the same as “without
a hearing”.
In
casu,
there was a hearing. It was not just a hearing to seek the members' reaction to
the intended transfer. It was a disciplinary hearing on charges of misconduct.
The applicants were found guilty. The transfers were part of the sentence.
However, despite all
that, I am prepared to accept that the applicants had a prima facie right not to be transferred from their station of
twenty six years on the basis of a disciplinary process that could turn out to
have been a complete nullity. It could be a nebulous right. But the right
sought to be protected by an urgent chamber application needs not be a clear
one. It may be open to some doubt. I consider that the applicants' situation
herein fitted the bill.
Therefore, on prima facie right, as the first
requirement for an interlocutory interdict, the decision is in favour of the
applicants.
[c] A
well-grounded apprehension of an irreparable harm
Under this head there
ought to be [1] a fear or an apprehension of harm that is [2] well- grounded,
judged objectively, that is to say, what a reasonable man, in Latin, a diligens paterfamilias, would consider
harmful or perilous or prejudicial, and [3] that the fear or the apprehension
must be of a peril or a harm or prejudice that will be irreversible if the
court does not intervene. Of this the head-note on Document Support Centre [Pvt] Ltd v Mapuvire, summarising the judgment
of MAKARAU J, as she then was, says:
“Urgent applications are those
where, if the courts fail to act, applicants may well be within their rights to
suggest dismissively to the court that it should not bother to act
subsequently, as the position would have become irreversible to the prejudice
of the applicant. The issue of urgency is not tested subjectively. It is an
objective one, where the court has to be satisfied that the relief sought is
such that it cannot wait without irreparably prejudicing the legal interest
concerned.”
On the same point,
GILLESPIE J, in General Transport &
Engineering [Pvt] Ltd & Ors v Zimbabwe Banking Corporation Ltd and Dilwin Investments [Pvt] Ltd v Jopa Enterprises Co Ltd said:
“A party who brings proceedings
urgently gains considerable advantage over persons whose disputes are being
dealt with in the normal course of events. This preferential treatment is only
extended where good cause can be shown for treating one litigant differently
from most litigants. For instance where, if it is not afforded, the eventual
relief will be hollow because of the delay in obtaining it.”
Beyond the need to
protect their perceived constitutional rights, the applicants did not explain
what harm exactly they stood to suffer, and most importantly, how any such harm
could be said to be irreversible, if the transfers were not stopped. For
example, apart from their lengths of service, there was not a word about what
else there was at Chingoma that was not there at Vubwe. The nearest Mr Midzi said on this was that the
applicants had never been to Vubwe and that therefore they did not know what
lay in store for them there! But you do not found a cause of action on
something that you do not even know whether or not it exists. You cannot really
say I stand to suffer an irreversible peril when you cannot even spell out what
that peril is.
Other than the fine of
$200 which could be restored if successful on appeal, the applicants were not
going to suffer a reduction in salaries. They were not being demoted. Admittedly,
the second applicant could well lose being head of department. But this was a
mere in-house administrative arrangement at Chingoma, perhaps through its Head,
the fourth respondent herein. It had nothing to do with the second respondent,
the actual employer.
Asked by myself what
exactly those constitutional rights were the breach of which would be
irreversible were the applicants to succeed on appeal, Mr Midzi could only vaguely refer to the right to a fair hearing and rights
to administrative justice. That was tenuous. Except in some exceptional
circumstances which do not concern this case, there is no question that a
breach of a constitutional right, or any right for that matter, is justiciable.
But the applicants had been tried before a disciplinary committee. They had
been unhappy with the outcome. They had appealed. The appeal was pending. They
appreciated that the appeal did not suspend the judgment of the disciplinary
committee. So they brought this urgent chamber application. But before they did,
there was nothing stopping the respondents from executing the sentence of the
disciplinary committee. And if the appellants succeeded before me, execution
would be stopped. If they succeeded on appeal after the transfers, they could
always be reversed. It might be inconvenient. But it could not be said to be impossible.
So I did not see what
constitutional rights of the applicants that were being flouted and what
irreversible harm they would suffer. Therefore, this point is decided in favour
of the respondents. And that really should be the end of the matter. But I also
consider the remaining requirements for an interdict.
[d] Balance
of convenience
Not being chattels it
would be wrong for the applicants to be shunted from one school to another, and
back again, as the judicial process was underway. What would be ideal would be
to allow the judicial process to run its full course whilst the applicants
stayed put until their fate was finally determined.
Unfortunately for the
applicants, the status quo had
changed materially. Whether due to pressure or fear, by the time of the hearing
they had assumed duty at the new school. Children at Vubwe looked forward to
being taught by them. The authorities there looked forward to confer
responsibilities on them. Not only that, but other teachers had already
replaced them and assumed duty at Chingoma. They had assumed responsibilities. Thus,
the ground on which the application had been based had shifted appreciably.
Of course, that is not to
say this court cannot order a reversal. But it would be a whole lot inconvenient
for too many people, some of them unconnected to the dispute. A reversal might
well spark further litigation, thereby causing more inconvenience even to the
courts. The applicants were largely to blame. That initial delay from 30
January 2017 to 9 February 2017, even though condoned, came back to haunt them.
Accordingly, this point
is decided in favour of the respondents.
[e] No
other satisfactory remedy
Mr Midzi's argument was that once the breach of the applicants'
constitutional rights was allowed to subsist for any time longer, nothing done
afterwards could ever restore them back to their original position. But as I
have demonstrated above, the alleged breach of constitutional rights is really
an illusion. All that had happened to the applicants, or would happen, could be
reversed if their appeals succeed. That is a remedy. Among other things, their
transfers could be reversed. The fines could be refunded. The reprimands could
be expunged from their disciplinary records. Perhaps, only the days they would
lose being away from Chingoma would not be restored. But this, to me, is not
the kind of prejudice contemplated by the law. It is fanciful. It does not
constitute a legal interest.
Therefore, this point is
also decided in favour of the respondents.
[f] Prospects
of success on appeal
In my recent judgment in Tetrad Holdings Limited v Master of the High
Court & Anor I said, at p 9:
“Weighing the prospects of success
in any given case always poses problems. The court has to leap forward and temporarily
sit in judgment over the pending review application. But that is unavoidable.”
I still hold the same
view. I have to temporarily peek into the merits of the case before the Labour
Court and express my view on the prospects of success. That view can only be a prima facie one. The matter might completely
turn on its head after full argument. But to express a view is an avoidable
duty.
In my view, the
applicants' appeal in the Labour Court has bright prospects of success. Among
other things, the disciplinary committee convicted on very shaky evidence. It
is true that in spite of the use of criminal law terms like “charged”, “convicted”,
“guilty”, “sentence”, and the like, disciplinary proceedings are civil in
nature. The standard of proof required to grant or refuse relief is “balance of
probabilities” rather than “beyond a reasonable doubt”.
However, after having
gone through the two records of proceedings of the disciplinary committee that
were produced by consent, I am not satisfied that the complainant's allegations
were proved. Even if they were proved, I am not satisfied that they were so cogent
as to found, let alone sustain, the offences with which the applicants were
charged. Furthermore, it seems most probable that the disciplinary proceedings
were conducted well outside the prescribed mandatory period and that, as such,
they are liable to be set aside. Finally, to transfer a head of department and
her husband, both of whom had rendered uninterrupted service for such lengths
of time over such nebulous charges, seemed manifestly unjust. In my view,
unless there was more that was not borne out by the record, this was a matter
crying out for nothing more than mere counselling of the parties involved.
However, these remain my
cursory views of the matter. The Labour Court may not share them. But I would
decide this particular point in favour of the applicants.
[g] Conclusion
This application fails
largely on account of the failure by the applicants to show the harm they stood
to suffer and in what way it would be irreversible, if indeed it existed. It
also fails in that as a matter of fact, what they sought to prevent had already
happened by the time of the hearing. In other words, the horse had already
bolted. It was too late to close the stable door.
[h] Costs
The general rule is that
costs follow the event. The loser bears the winner's costs. However, it is also
the rule that costs are entirely in the court's discretion. The discretion is
exercised judiciously and not whimsically.
In this case, despite
this setback, the applicants may have been more sinned against than sinning.
Apart from anything else, the sentence meted out on them, and the fact that it
was being executed, were such that it was reasonable for them to approach the
court to stop it. Therefore, no one should blame them for having come to court.
It would be exceedingly harsh to saddle them with the costs of the application.
In the final analysis,
the application is dismissed with no order as to costs.
17 February 2017
H. Tafa &
Associates, legal
practitioners for the applicants
Civil Division of the Attorney-General's Office,
legal practitioners for
respondents
