MUZENDA
J:
On
the 4th
July 2018 the applicant (Ruben Zimondi) filed an application seeking
the following relief:
“IT
IS ORDERED THAT:
1.
It is declared that the discharge of the applicant herein, wherein he
held the rank of Superintendent, be and is hereby declared unlawful.
2.
The 1st
respondent be and is hereby ordered to entertain the applicant's
appeal lodged on 12 February 2015 within twenty one (21) days of this
order being granted.
3.
The respondents to pay costs of suit jointly and severally, the one
paying the other to be absolved.”
Facts
On
or about December 2014, the applicant was charged with contravening
section 3(46) of the Prisons (Staff) (Discipline) Regulations 1984.
It was alleged that at Mutare Farm senior officers Mess, the
applicant being a member of the service, did wrongfully and
unlawfully uttered despicable words against the first lady Dr Grace
Mugabe saying “Ma
problems ese arikuitika mumusangano anokonzereswa nembwa inonzi Dr
Grace Mugabe asi isu musangano tinouda.”
This
was against the discipline especially of a commissioned officer.
The
disciplinary hearing was conducted in January 2015 in terms of
section 10(1) and (11) of the aforesaid regulations.
Applicant
was found guilty and discharged from service.
He
filed an application for review to the Commissioner in terms of
section 22(1) of the Regulations. The Commissioner confirmed the
board's decision and dismissed the application for review.
The
applicant did not rest, he appealed to the Public Service Commission
in terms of section 22(4). The Public Service Commission refused to
entertain the appeal citing lack of jurisdiction and the relevant
portion of the letter of 17 March 2015 addressed to applicant's
legal practitioners reads as follows:
“It
has been noted that you were engaged as a Commissioned officer at the
rank of Superintendent in the Zimbabwe Prisons and Correctional
Services. In terms of section 9(1)(e) of the Prisons Act (Chapter
7:11) the President may reprimand, suspend, reduce rank or discharge
any Commissioned officer. The Prisons and Correctional Service does
not have the jurisdiction to preside over cases involving
Commissioned officers.
This
rests your case with us. Please be guided accordingly.”
The
applicant genuinely believes that the Public Service Commission has
the jurisdiction to entertain the appeal made in terms of section
22(4) of the 1984 Prison regulations. However up to now the 1st
respondent has failed to hear the appeal hence this application.
The
application is opposed.
In
the opposing papers the 1st
respondent raises a preliminary point premised upon the citation of
1st
respondent.
According
to the respondents, the 1st
respondent does not and has no jurisdiction to determine the
applicant's appeal in her capacity as Secretary of the Public
Service Commission. The Public Service Commission, she argues, is a
separate legal entity to the Prisons and Correctional Services
Commission. The Secretary: Public Service Commission acts as the
Secretary to the Prisons and Correctional Services is incorrectly
cited as she does not represent the Commission, the applicant ought
to have cited the Chairperson to the Prisons and Correctional
Services Commission.
Further
the 1st
respondent does not deal with appeals in her official capacity and as
such she is incorrectly cited.
On
the date of hearing the applicant argued that the point
in
limine
was only raised in the opposing affidavit and was not pursued further
in 1st
respondent's heads. The 1st
respondent admitted that but submitted that a point in
limine
as a question of law can be raised at any time during the hearing of
the application.
The
applicant had urged the Court to regard the point
in limine
as having been abandoned which argument was opposed by the 1st
respondent.
I
am with the 1st
respondent on this aspect and I ruled that the point in
limine
was indeed a legal point which can be raised at any stage during the
application. I allowed the 1st
respondent to address the court on the preliminary point.
My
view was that if the point in
limine
was upheld, it will definitely be capable of disposing of the
application.
Mr
Mutomba
for the 1st
respondent submitted that the improper citation of a party renders
the application void. Mr Mutomba
cited the matter of Matida
v Chairman, PSC and Anor
1998 (1) ZLR 507 (H) ADAM J at p509 G-F had this to say relating to
the citation:
“Now
that court application, firstly, cites the Chairman of the Public
Service Commission as the first respondent. Yet, the annexure to the
founding affidavit gives the Public Service Commission as the
decision maker. The wrong party has been cited. Rule 256 surely is
concerned with the decision or proceedings of the legal persona, be
that an inferior court, tribunal, board or officer. This means it is
that legal persona whose decision or proceeding has to be reviewed
that must be cited and the application must be directed and
delivered, in the case of the tribunal or board, to the Chairman of
that body. See in this regard Maxwebo
v Chairman, Public Service Commission
HH125-97 at p6-7 where
SMITH J
said:
'Before
concluding, I wish to make an observation on the party cited as
respondent. The Chairman of the Public Service Commission was so
cited. Although exception was not taken there, I considered that it
was improper to cite him as respondent. Section 74 of the
Constitution establishes the Public Service Commission which consists
of the Chairman and not less than two and not more than seven other
members. Any findings, rulings or decisions of the Public Service
Commission are those of the body and not of the Chairman.
Accordingly, the Chairman of the Public Service Commission cannot do
anything in the name of the Commission if the majority of members do
not agree with him. The distinction is illustrated by the order
sought by the applicant. The draft order states that the respondent's
decision to find the applicant guilty of misconduct should be set
aside. However, the findings of guilty was not a decision of the
respondent. It was a decision of the Public Service Commission. I
therefore consider that it was improper to cite the Chairman as
respondent. The Public Service Commission should have been cited as
the respondent.'”
In
the case of City
Bolts (Pvt) Ltd v Workers Committee
SC16/2012, GARWE JA
on
p1 of the cyclostyled judgment ruled as follows:
“At
the hearing of this matter, it appeared to this court that the
respondent, simply cited as 'Workers Committee' was not a legal
persona,
capable of being sued. Accordingly both counsel were asked to address
the court on the matter. Both counsel accepted that the respondent
which is a Workers Committee appointed by workers of the appellant
company is not a legal persona and cannot therefore be sued.”
The
applicant improperly cited the Secretary as the 1st
respondent instead of citing the Public Service Commission. That was
a fundamental error and the preliminary point finds favour with this
court and accordingly the point in
limine
is upheld and the application is dismissed with costs.
It
is so ordered.
Mutungura
& Partners,
applicant's legal practitioners
Civil
Division of the Attorney General's Office,
respondents legal practitioners
