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Mariyawanda Nzuwah

Mashudu Netsianda, Senior Court Reporter
THE Civil Service Commission (CSC) has taken a Labour Court judge, Justice Evangelista Kabasa, to court challenging her ruling to reinstate a top Bulawayo prosecutor who was fired for engaging in an alleged unlawful strike.

The CSC, through its chairperson, Mariyawanda Nzuwah, filed an application for review at the Bulawayo High Court citing Justice Kabasa and the prosecutor, Patrobs Dube, as respondents.

Dube was among five prosecutors, who were leaders of the Zimbabwe Law Officers’ Association (ZILOA), that were fired in November 2011 for demanding salaries equivalent to those of magistrates arguing that they possessed the same professional qualifications as magistrates.

The former prosecutor, through his lawyers, Calderwood, Bryce Hendrie & Partners, challenged his dismissal by noting an appeal at the Labour Court.

Justice Kabasa delivered a default judgment in his favour after the CSC failed to file its heads of argument within the stipulated period.In its grounds of review, the CSC, through the Attorney-General’s (AG) Civil Division, accused Justice Kabasa of bias in her July 2014 judgment saying it was fraught with procedural irregularities.

“The first respondent (Justice Kabasa) exhibited open bias in the manner she handled the matter in which she described the proceedings as a judicial circus. Her decision was not influenced by the considerations of the matter that had been brought before her, but by other extraneous considerations which had nothing to do with the matter at hand,” argued Nzuwah in his founding affidavit.

He further argued that the fact that the judge allegedly made it clear in her judgment that she was not happy with the way the AG’s Civil Division conducted its business basing on previous matters, had a bearing in her determination.

Nzuwah said Dube’s appeal was not decided on merit and Justice Kabasa’s ruling amounted to throwing spanners into the CSC’s work.

“Both the rules of the Labour Court and the Labour Court Act provide that the Labour Court shall not arrive at a decision based on technicalities and procedural irregularities before a decision based on the merits of the case can be arrived at,” said Nzuwah.

He said Justice Kabasa’s interpretation of the rules of the court breached the audi alteram partem rules- the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.

“Justice Kabasa decided to shut the doors of justice on it in her quest to give a judgment in favour of Dube,” said Nzuwah.

CSC is seeking an order setting aside Justice Kabasa’s default judgment.It also wants the matter referred back to the Labour Court for a fresh hearing.“Clearly the proceedings of the first respondent are reviewable and ought to be set aside and the respondents to pay the costs of suit,” said Nzuwah.

Dube, in his opposing affidavit, said the applicants defaulted in filing heads of argument despite having been notified.

“There is nothing that suggests that this application should succeed as it suffers from various incurable defects. The applicant has not complied with that judgment and has taken what is clearly a contemptuous position that it will not comply with the order as it is based on a technicality,” said Dube.

He urged the court to dismiss the CSC application because his former employer had failed to comply with the Labour Court judgment.

Dube argued that the High Court had no jurisdiction to handle an application for review of a Labour Court decision.