Zimpapers Logo

Leonard Ncube, Victoria Falls Reporter
AN attempt by former Victoria Falls Municipality housing director Mr Lot Syatimbula to reverse his dismissal by compelling the local authority to set up an internal appeals committee has hit a snag after the High Court dismissed his application with costs.

Mr Syatimbula was fired for misconduct in 2017 after he allocated a housing stand to his nephew without a council resolution.

The municipality used an external disciplinary authority and Advocate James Moyo of Calderwood, Bryce Hendrie and Partners found Mr Siatimbula guilty of misconduct hence the dismissal.

Aggrieved by the outcome, Mr Syatimbula took the matter to an independent arbitrator and retired judge Justice Nicholas Ndou was appointed and upheld the disciplinary ruling.

Mr Syatimbula then approached the Labour Court but the case was struck off on the grounds that the appointment of an independent arbitrator was flawed and rendered the whole process a nullity.

He then made an application for mandamus to the High Court seeking an order to compel the municipality to appoint an appeals officer or set up an appeals committee to enable him to appeal his dismissal.

Mr Syatimbula, who was represented by Advocate Perpetual Dube, is the applicant while the Victoria Falls Municipality represented by Mr Thulani Nkala of Dube, Nkala and Company was the respondent.

The applicant said the decision of the Labour Court returned the case to the internal disciplinary stage hence the need for appointment of an appeals committee.

At some stage Mr Syatimbula wrote to the Ministry of Public Service, Labour and Social Welfare seeking an order for a conciliation meeting but later postponed hoping for appointment of an appeals officer.

His contention is that the authority’s decision to find him guilty of misconduct is clearly wrong and argued that the municipality should set up an appeals committee in terms of Section 8 of S.I 15/16.

“The respondent’s failure to act in terms of the law is tantamount to denying me my constitutional rights as enshrined in Section 68 of the Constitution of Zimbabwe. In the circumstances I have no choice but to approach the honourable court for relief. This application was unnecessary and I should not be put out of pocket because of the respondent’s intransigence. Respondent should be ordered to pay the cost of suit on an attorney and client scale,” said Mr Syatimbula.

The municipality said it had no capacity to set up an appeals committee as outlined in section 8 of the Labour (National Employment Code of Conduct) Regulation 2006 (S.I 15 of 2006).

The respondent stated that it could not have an internal disciplinary authority because both Town Clerk and Chamber Secretary who would have made up the committee, were witnesses in the matter, adding that the applicant was given an opportunity to appeal his dismissal and lost the contest.

In her opposing affidavit, Chamber Secretary Ms Kholwani Mangena-Moyo stated that nothing had changed to justify the local authority to set up an internal appeals committee.

Bulawayo High Court judge Justice Nokuthula Moyo who heard the matter said she could not compel the municipality to do what it cannot do, adding that the applicant pursued a wrong redress.

“I am unable to grant a mandatory interdict in these circumstances where to start with, the provision being sought to be enforced is worded in an elective thrust on the part of the employer. I am unable again to fill the gap that is glaringly missing in the statutory instrument that which provides for the scenario where the size and circumstances of the employer are such that it may not set up an appeals committee. The law itself should provide what should happen in such a case. In this case the law is such that the applicant is hamstrung. I however, cannot create a right for him.

“I accordingly find that the applicant has failed on the basis of the relief sought considering the size and circumstances of the respondent and the elective nature of the provision. In the circumstances I cannot find that a case has been made for the relief sought and accordingly the application is dismissed with costs,” ruled Justice Moyo. — @ncubeleon