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Mashudu Netsianda, Senior Court Reporter
A TSHOLOTSHO-based agricultural extension worker who was fired after she was convicted of stealing fertiliser from her employer, has taken Lands, Agriculture, Water, Climate and Rural Resettlement Minister Perrance Shiri to court, challenging her dismissal.
Ms Melody Nkomo was last year in October discharged by her employer pending a disciplinary hearing for misconduct on the grounds of a conviction of theft by a Tsholotsho magistrate, Mr Victor Mpofu.
She was sentenced to two years in jail.
Ms Nkomo, through her lawyer Mr Prince Butshe-Dube of Mathonsi Ncube Law Chambers, filed an application for a declaratur at the Bulawayo High Court seeking the nullification of her dismissal.
She wants an order directing her employer to reinstate her without loss of salary and benefits.
In papers before the court, Minister Shiri, Permanent Secretary in the Ministry of Lands, Agriculture, Water, Climate and Rural Resettlement Mr Ringson Chitsiko, Secretary of the Public Service Commission, Ambassador Jonathan Wutawunashe and the Paymaster of the Salary Services Bureau, were cited as respondents.
In her founding affidavit, Ms Nkomo said her dismissal through a letter signed by Mr Chitsiko was unlawful, arguing that it is a violation of her constitutional right to administrative justice.
“In the constitution of Zimbabwe the right to administrative justice is enshrined in the Bill of Rights and every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and substantially fair,” she said.
Ms Nkomo said her employers unfairly and unreasonably failed to afford her an opportunity to be heard before unilaterally ceasing her salary and subsequently discharging her from the civil service.
“This is in violation of the rules of natural justice. The relationship between an employer and an employee is governed by the constitution and any action ultra vires the constitution in so far as it relates to the employment relationship is null and void. The Labour Act and the Constitution outlaw summary dismissal without affording an employee a hearing,” she said.
“The failure to comply with the provisions of the law in discharging me from service and ceasing my salary unilaterally is an absurd and untenable decision since if I were to be successful in my appeal I would have suffered irreparable harm.” Ms Nkomo is out on bail pending appeal against her conviction and sentence.
In her grounds of appeal, she argued that the magistrate erred and grossly misdirected himself by finding that the State had proved its case beyond any reasonable doubt.
“The court a quo erred in trying to shift the burden of proof to the appellant yet what was only needed was for the appellant to give a probable explanation,” she argued.
Ms Nkomo said the lower court erred by imposing a harsh prison term which induces a sense of shock to her as a first time female offender. According to the letter, Mr Chitsiko said Ms Nkomo’s dismissal is provided for in terms of section 63 (d) of the Public Service Regulations, 2000.
“I have ruled that you be discharged from the service with effect from July 31, 2018, the day you were convicted. Sections 63(d) of the Public Service Regulations states that the Commission or a 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 has been imprisoned in pursuance of a conviction of an offence and sentence of imprisonment for an effective term of three months or more,” read the letter.—@mashnets
Online Reporter