Chinhoro v Civil Service Commission Chairman & Ors (HC 7968 of 2014) [2015] ZWHHC 319 (26 March 2015)

1 HH 319-15 HC 7968/14 PATRICK COSMAS CHINHORO versus THE CHAIRMAN-CIVIL SERVICE COMMISSION and THE MINISTER OF HIGHER AND TERTIARY EDUCATION, SCIENCE AND TECHNOLOGY DEVELOPMENT and THE PERMANENT SECRETARY FOR HIGHER AND TERTIARY EDUCATION, SCIENCE AND TECHNOLOGY HIGH COURT OF ZIMBABWE UCHENA J HARARE, 11 September 2014 and 27 March 2015 Urgent Application B Maruva, for the applicant Miss K Warinda, for the respondent’s. UCHENA J: The parties in this matter appeared before me on 14 September 2014. The dispute was about the transfer of the applicant from the position of Acting Principal Belvedere Teacher’s College to the position of Chief Science and Technology Officer. The first respondent is the Chairman of the Civil Service Commission. The second respondent is the Minister responsible for Higher and Tertiary Education, Science and Technology Development. The third respondent is the Permanent Secretary of that Ministry. When the parties entered my Chambers, they indicated that they had agreed on para 1 of the draft provisional order which reads. “It is ordered that the letter dated 5th of September 2014 written by the Third respondent be and is hereby declared null and void and of no legal effect”. Miss Warinda for the respondents indicated that they were disputing paras 2 and 3 of the provisional draft order. HH 319-15 HC 7968/14 Counsel for both parties made submissions which resulted in Miss Warinda for the respondents saying, “We can agree on the final order as it is.” Mr Maruva for the applicant accepted that offer of a settlement on the final order as it is. They then argued on costs, after which I in an extempore judgment ruled that the respondents must pay the applicant’s costs on the legal practitioner and client scale. I have at the instance of the respondents who are now appellants, been asked through the registrar’s letter dated 12 March 2015, to give reasons for judgment. There is no legal basis on which a party who consented to an order can request for reasons for judgment. An order by consent does not by its nature require a judge to give reasons for judgment. A judge, cannot, at the time of granting a consent order or thereafter address his mind to reasons for judgment other than that the parties consented to the order. I therefore, find it strange that I am being asked to give reasons for an order which was granted by consent. The only reason for granting such an order is that the parties consented to its being granted. Section 43 (2) (c) (i) of the High Court Act (Chapter 7:06), bars a litigant from appealing against a consent order. Section 43 (2) ( c) (ii) bars a litigant from appealing against an order of costs without the leave of the court. Section 43 (2) ( c) (i) and (ii) reads; “No appeal shall lie— (a) ----; (b) -----, (c) from— (i) an order of the High Court or any judge thereof made with the consent of the parties;” (ii) an order as to costs only which by law is left to the discretion of the court, without the leave of the High Court or of the judge who made the order or, if that has been refused, without the leave of a judge of the Supreme Court;” The respondents who are legally represented by the Attorney General’s Civil Division should be aware of the provisions of section 43. They however seem to be deliberately abusing court process by appealing against a consent order and an order of costs without the leave of court. The respondents clearly seem to be aware of this as demonstrated by their having also applied for the correction of the order in terms of Order 49 rule 449 of The High Court Rules 1971. They seem to be uncertain of the procedure they should follow because of a clear realisation that they consented to the order but may have thereafter realised they did not properly consider the effect of what they were consenting to. This is demonstrated by the order they seek on appeal, being just slightly different from the order they consented to. HH 319-15 HC 7968/14 In respect of costs the parties were entitled to reasons for judgment, as they were not agreed on that aspect. The respondent’s legal practitioner correctly states that I gave an extempore judgment in which I gave reasons for ordering that the respondents should pay costs on a legal practitioner and client scale. The following are the reasons I gave. The respondents, conceded that they had un- procedurally transferred the applicant. They agreed to para 1 of the interim order being granted. It states that the transfer letter is a nullity. They then opposed para 2 of the interim draft order which sought to allow the applicant to remain the Acting Principal of Belvedere Teachers College. This was after the respondents had conceded that their letter dated 5 September 2014 was a nullity. This means the respondents’ resistance to the status quo being maintained was unreasonable. It was unreasonable because once they had admitted having un-procedurally transferred the applicant they had to go back to the drawing board to properly transfer or reorganise the applicant’s status according to the law and regulations. The respondents’ in-spite of conceding the nullity of the transfer still wanted to go ahead with the applicant’s unlawful transfer. They had, sent a team of officers from Head office and other Teacher’s Colleges, to forcefully, eject the applicant, from Belvedere Teachers College. They involved the police in their attempts to unlawfully remove the applicant from the College. The team which was send had broken into the applicant’s office. This is not expected of Government officials who should be exemplary in upholding the law. Their unlawful conduct justified costs on a legal practitioner and client scale. The respondents thereafter consented to the granting of the final order as it is. This demonstrated an unreasonable approach to litigation. The respondents on conceding the impropriety of their letter dated 5 September 2014, should have simply gone back to the drawing board to start the process from where they had erred. The respondents caused the applicant to incur unnecessary costs when they knew, that they were acting unlawfully. They wanted to reap the results of a process they conceded was flowed and had withdrawn. The respondents displayed insensitivity and a bullying attitude towards the applicant. It is for these reasons that I ordered the respondents to pay the applicants costs on the legal practitioner and client scale. Messers Mugwadi & Associates, Applicant’s Legal Practitioners. Civil Division of the Attorney General’s Office, Respondent’s Legal Practitioners.