Judgment
No. S.C. 6/02
Civil
Appeal No. 139/01
MAXWELL
MWANYISA v
(1) THE
MINISTER OF FINANCE
(2)
THE CONTROLLER, DEPARTMENT OF PRINTING AND STATIONERY
(3) THE
PUBLIC SERVICE COMMISSION
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, EBRAHIM JA & SANDURA JA
HARARE,
JANUARY 28, 2002
J
Musimbe,
for the appellant
S
Gurure,
for the respondents
EBRAHIM JA:
The appellant was employed in the Public Service in the Department
of Printing and Stationery. He absented himself
from duty on 1 July
1999 without notifying his superiors or being granted leave. On
31 December 1999 he was discharged
from the Public Service on
the grounds of absence from duty without being granted leave. On
31 May 2000 he
filed two applications in the High Court. In the first matter he
applied for condonation of the late noting of
his application for the
review of the decision of the respondents to discharge him. In the
second, he applied for the review and
setting aside of the decision
to discharge him.
His
case is that some time in February 1999 he experienced a mild but
persistent headache and he was constantly feeling dizzy.
He took
medication and reported for work but his headaches became more acute
and unbearable. He also developed a mental condition
which
caused him not to remember or appreciate what he was doing. He also
became violent for no reason. From July the mental
illness became
worse and he could not go to work or look after his family. He went
for treatment to a herbalist. He was also
having problems with his
wife whom he alleged was not co-operative and did not report his
condition to his employer as she had agreed
to do. In October 1999,
when he was recovering and preparing to return to work, his mental
illness struck again. Whilst wandering
around Mufakose one night he
was set upon by some people and severely assaulted. He sustained a
fracture of the tibia and fibula
of his left leg and was kept in
hospital for four days. His leg was kept in plaster until 1 March
2000. Even after the removal
of the plaster his leg was badly
swollen and he had difficulty in walking.
The second respondent, in a
letter dated 31 December 1999, advised the appellant that he had
been discharged in terms of s 25(b)
of the Public Service
(Disciplinary) Regulations, 1992, for absenting himself from duty for
a continuous period in excess of thirty
days without having been
granted leave of absence. It noted that the appellant had a very
bad record of absenting himself
from duty without authority and
that he had failed to improve his attitude towards his work despite
several warnings.
As
regards the application for condonation of the late filing of the
application for review, the appellants counsel submitted
that the
delay was only three months and therefore it was not inordinate and
that the reasons the appellant gave for the delay in
filing his
application were reasonable. He had broken his leg and was not able
to walk. Also, that he had not received his salary
from October
1999 and so he had no money to brief a lawyer to handle his case.
He also submitted that the prospects of success
of his application on
review were good.
The learned judge a quo
was not impressed and observed:
In
my view, Maxwells explanations for his failure to file his
application for review within the prescribed period of eight
weeks
are not convincing. The court cannot accept that because of his
broken leg Maxwell was unable to file his application for
review by
the end of February 2000. Then when one looks at the merits of the
application, it is clear that the prospects of success
are minimal.
Maxwell did not appear for work on 1 July 1999. For the next seven
months he did not contact the second or the third
respondent(s) and
advise that he was not able to come to work. After his absence from
work for three months his salary was stopped
and that evoked no
response from him. When he was discharged on 29 December 1999
Maxwell had been absent from work for six
months without advising the
second respondent of the reasons why he had not reported for duty.
It is difficult to accept that the
injuries he sustained caused him
so much pain and suffering that he was unable to visit his workplace
and advise his employer of
his mental and physical ailments. Even
if one accepted that he could not personally visit his workplace, it
is impossible to believe
that he could not send a message to his
workplace.
In
my view, this reasoning is difficult to fault.
The appellants counsel also
submitted that the discharge was wrongful and irregular because he
had not been given an opportunity
to respond to the charges of
misconduct. He submitted that the audi
alteram partem
principle was not observed. The appellant had been ill and
therefore there were good and substantial reasons why he did not turn
up for work.
The
learned judge dealt with this submission thus:
I accept that ordinarily,
where an employee is charged with misconduct, he must be afforded an
opportunity to respond to the charge
against him. It is different,
however, where the employee had deliberately absented himself from
his workplace for an unreasonably
lengthy period. In Girjac
Services (Pvt) Ltd v Mudzingwa
SC-41-99 the Court considered the case where an employee had failed
to present himself at his workplace. At p 4 of the cyclostyled
judgment GUBBAY CJ said:
A
distinction must be drawn between absenteeism due to illness or some
other form of incapacity, and wilful abscondment. In the
former
situation the employer cannot ex
eo
cancel the contract. Incapacity is not a breach of contract.
Nonetheless, the fact that the employee is incapacitated by a cause
beyond his control - by an act of God, if you like - does not
deprive the employer of the right to terminate the contract where
the
absence was unreasonable. Non-performance by the employee of his
duties for an unreasonable time justifies the employer in
refusing to
perform his part of the contract and in considering his obligations
at an end. The crucial question of what is reasonable
in such cases
depends on the surrounding circumstances. What has to be considered
is the nature of the business and whether the
employees absence
may cause irreparable damage to the employer.
In
that case it was held that by staying away from work for seventeen
days the employee had repudiated his contract of employment.
In
this case, the respondents followed the requirements of the Public
Service (Disciplinary) Regulations, 1992, but allowed Maxwell
much
greater latitude than could have been expected. Instead of
exercising the power of discharge after Maxwell had been absent
from
duty without leave for a period of thirty days, the respondent(s)
only acted after he had been absent for six months.
For the foregoing reasons, it
appears that Maxwells prospects of success are very bleak.
The
learned trial judge declined to condone the late noting of the
application and held that the application for review fell away.
In
doing this he exercised his discretion.
It cannot be said that he
exercised his discretion injudiciously see Cargo
Carriers (Private) Limited v Zambezi & Ors
1996 (1) ZLR 613 (S); Barros
& Ano v Chimponda
1999 (1) ZLR 58 (S); ZFC
Ltd v Geza 1998 (1)
ZLR 137 at 139; Cluff
Minerals Exploration (Zimbabwe) Ltd v Union Carbide Management
Services (Pvt) Ltd & Ors
1989 (3) ZLR 338 (S) at 344-5; and Robinson
v Minister of Lands, Agriculture and Rural Resettlement & Anor
1994 (2) ZLR 171 (S).
It is trite that we therefore
cannot interfere.
It
is for these reasons that at the conclusion of the hearing of this
appeal we dismissed the appeal with costs.
CHIDYAUSIKU
CJ: I agree.
SANDURA JA:
I agree.
J Musimbe & Associates,
appellant's legal practitioners
Civil
Division of the Attorney-Generals Office,
respondents' legal practitioners