Lang v Chief Magistrate and Ors (HC 948 of 2003) [2005] ZWBHC 7 (26 January 2005)

Judgment No. HB 7/05 Case No. HC 948/03 FARIDA BEGUM LANG Versus THE CHIEF MAGISTRATE And THE SECRETARY, THE PUBLIC SERVICE COMMISSION And THE SECRETARY, MINISTRY OF JUSTICE, LEGAL & PARLIAMNTARY AFFAIRS And THE MINISTER OF PUBLIC SERVICE , LABOUR AND SOCIAL WELFARE And THE CHAIRMAN, THE PUBLIC SERVICE COMMISSION IN THE HIGH COURT OF ZIMBABWE CHIWESHE J BULAWAYO 7 MAY 2004 & 27 JANUARY 2005 Fitches assisted by S B A Longhurst for applicant Munjanja assisted by Nzarayapenga for respondents Judgment CHIWESHE J: The applicant is a Provincial Magistrate stationed at Bulawayo. She has been so stationed since 1979. In February 2001 she was transferred to Masvingo. She did not take up her post at Masvingo as expected. She objected to the transfer on the grounds that it would disturb her family life and adversely affect her daughter’s education. Soon after the purported posting she fell ill and obtained what was understood by both parties to be “indefinite sick leave”. At the expiry of 90 days of her sick leave she was asked to provide a medical report in HB 7/05 order that a medical board be instituted in terms of section 38(5) of the Public Service Regulations. The respondents allege that she failed to produce a medical report. Instead her doctor responded by way of a brief letter dated 8 February 2002. The respondents argue that from 7 July 2001 when her 90 days sick leave expired without renewal, the applicant was to all intents and purposes absent without leave. She was discharged on 17 September 2002 in terms of section 63(e) of the Public Service Regulations 2000 as amended by Statutory Instrument No. 58 A of 2001. The applicant has filed this application challenging the validity firstly of the transfer to Masvingo and secondly her dismissal from the Public Service on the grounds that both are tainted with irregularity, specifically that in either instance she was not afforded a hearing. It is common cause that the applicant is a long serving magistrate who, since 1979 has been stationed in Bulawayo (save for a nine month period in Gweru). She certainly falls into the category of employees that GUBBAY CJ had in mind when he stated as follows: “In general, one thinks that professional employees of long standing, holding senior posts, would not be transferred without account paid to their stated personal situations and wishes.” (See Taylor v Minister of Higher Education 1996 (2) ZLR 772 (5) and 777H). And at 779D of that judgment the learned Chief Justice (as he then was) held that: “The general rule is that once a decision has been reached in violation of natural justice, even if it has not been implemented, a subsequent hearing will be no meaningful substitute. The prejudicial decision taken will be set aside as procedurally invalid. In this way the human inclination to adhere to the decision is avoided.” HB 7/05 The judgment in Taylor’s case (supra) is instructive on the manner in which civil servants of the applicant’s seniority and expertise ought to be handled in matters such as the present. With regards the purported transfer to Masvingo, the applicant did not receive formal prior notification of the proposed transfer nor was she given the opportunity to make formal representations with regard thereto. In her founding affidavit the applicant states that she first heard of the proposed transfer through rumours. She confirmed these rumours when she sought audience with first and third respondents. She indicated to both verbally and informally her reservations. The first and second respondents should have taken steps to formalise these communications and in particular invite the applicant to make written representations thereto. The applicant had a legitimate expectation to be consulted about the proposed transfer and to be heard. The failure to give effect to this legitimate expectation constitutes an irregularity of such a magnitude as would justify an order setting aside the transfer on the grounds that the rules of natural justice have been abrogated. Further, section 13 of the Public Service Regulations provides that every transfer be planned to minimise discomfort on the part of the member to be transferred and that such member be notified timeously of this event and the necessary information relating to the transfer. The letter and spirit of this provision has not been met in the instant case. I conclude that the respondents have failed to abide by the minimum requirements for a valid transfer and that the application in this regard must succeed. As stated in the Taylor case supra the fact that the Public Service Regulations provide that the applicant’s consent is not necessary to give effect to a transfer is irrelevant to the present case. Whether the applicant consents or objects to the transfer she retains the right to be heard before a decision is taken. HB 7/05 I now turn to the question of the summary dismissal. The applicant avers that the respondents based the dismissal on a provision of the Public Service Regulations which was not applicable to the facts of her case. The respondents purported to have discharged the applicant in terms of section 63(e) of the Public Service Regulations. Section 63 reads as follows- “Discharge of members on the grounds of detention, restriction, deportation, imprisonment and abscondment The Commission or head of Ministry may discharge from the Public Service with effect from the date of detention, restriction or conviction, as the case may be, a member who- (a) has been subject for a period of three months or more to an order made in terms of any enactment providing for the detention of persons in time of emergency or for the preventive detention of persons; or has been subject, for a period of three months or more to an order made in terms of any enactment whereby he is required to remain within, or is prohibited from entering a specific area in Zimbabwe; or is deported or extradited from Zimbabwe; or has been imprisoned in pursuance of a conviction of an offence for an effective term of three months or more; or has been absent from duty for a continuous period in excess of thirty days without having been granted leave of absence.” (b) (c) (d) (e) The provisions of sub paragraph (e) are out of place. The circumstances envisaged under sub paragraph (e) are not captured in the preambular portion of section 63 which restricts applicability of the section only to members under detention, restriction or conviction. Construed this way sub paragraph (e) does not make sense. Although the heading to section 63 includes members who have absconded the text of the section does not. It is a common cannon of construction that the text takes precedence over the heading. In that context sub paragraph (e) is misplaced and out of context with the preambular portion of section 63. The defect HB 7/05 arises out of poor draftsmanship. The respondents relied on a defective provision. For that reason the decision to discharge the applicant was a nullity. Even if it were shown that the provision was valid, the circumstances of this case do not support a reasonable conclusion that the applicant had absconded. To all intents and purposes the applicant was on indefinite sick leave subject to the appointment of a medical board. She had submitted written communications from her medical practitioners although she might have failed (through her medical practitioners) to provide a detailed medical report in the form required by the respondents. She kept lines of communication open through her husband and her legal practitioners. As far as she was concerned her case was being handled with a view that she be retired on medical grounds. These facts coupled with her level of seniority and experience as a judicial officer casts a grave doubt on the bona fides of the respondents in coming to the conclusion that she had absconded. It would not be far fetched to conclude that the respondents failed to properly apply their minds to the circumstances of the case they were dealing with or alternatively that they acted vindictively. For these reasons I am inclined to set aside the order discharging the applicant from the Public Service. The applicant seeks costs on the higher scale. Such an order would be justified given the facts of this case. Firstly the respondents were well advised by the applicant’s legal practitioner by letter addressed to them dated 31 January 2003 of the consequences of their actions. They took no heed. Secondly, the respondents are amongst themselves well placed to have appreciated (in light of the specialised nature of the structures within the employer Ministry) the import of the various judicial pronouncement pertaining transfer and discharge of members of the Public Service. HB 7/05 The Taylor case supra must have been known to them and in any event the ruling therein was specifically brought to their attention by the applicant’s legal practitioners. The misplaced reliance on section 63(e) of the Public Service Regulations was also highlighted by the applicant’s legal practitioners. The respondents should have taken heed or sought legal advice at that stage. They spurned an offer for an out of court settlement in which a medical board would have been convened in terms of the Public Service Regulations. It is clear that the respondents’ case was weak from the outset. Owing to intransigence on the part of the respondents the applicant has been left with no option but to seek relief in this court. In the process she has been needlessly placed out of pocket by way of legal fees. Reliance has been properly placed on the case of Nel v Waterberg Landbouwers Ko-op 1946 AD 597 in which it was held that apart from the mere punishment of the losing party, costs on an attorney – client scale serve to ensure that “the successful party will not be out of pocket in respect of the expenses caused to him by the litigation.” Accordingly, I would and hereby grant the application in the following terms:- 1. The dismissal of the applicant from the Public service be and is hereby set aside. 2. The applicant be and is hereby reinstated in her post and grade of Provincial Magistrate with full benefits, backdated to June 2001 inclusive of interest temporae morae. 3. The second respondent be and is hereby ordered to convene a medical board in terms of section 38(4) of the Public Service Regulations, 2000 (Statutory Instrument 1 of 2000) within thirty days from the date of this order. HB 7/05 4. The decision to transfer the applicant from Bulawayo to Masvingo be and is hereby set aside. 5. The third respondent shall pay the costs of this application on the legal practitioner/client scale. Ben Baron & Partners applicant’s legal practitioners Civil Division of the Attorney General’s Office c/o Messrs Coghlan and Welsh, respondents’ legal practitioners