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Daniel Nemukuyu Senior Court Reporter
Former Zvishavane magistrate Mr Joe Kabiti, who was early this year forced to retire after working for 33 years without basic five Ordinary Levels, has taken the Judicial Service Commission to the Constitutional Court contesting the decision.
Mr Kabiti was forced to retire on February 19 this year by the JSC after it emerged that he was not a qualified magistrate.
He argued that he was employed as a presiding officer on the basis of a Community Court certificate he obtained from Domboshawa Training Centre in 1981 and his status as a war veteran.
Mr Kabiti was given a chance to upgrade himself and acquire five O- Levels when the presiding officer’s post was phased out in 2006, but he refused insisting that he should simply be elevated to be a magistrate by virtue of him being an ex-combatant.
Part of his response reads:
“Pursuant to that, I was appointed to the office by virtue of some qualifications, that is being an ex-combatant . . . “The war was fought and it is over. I am an ex-combatant. I was retained for the post by virtue of such qualifications.
“With all due respect, I seem to wonder as to what you mean by upgrading myself. Are you saying the war should be started over again and I improve on my war veteran status: obviously no,” he said.
The JSC retired him with full package and benefits but he is contesting the retirement arguing that he has not reached the retirement age.
The Labour Court threw out the review application on the basis that Mr Kabiti had not exhausted the available remedies before approaching the court.
It was the Labour Court’s finding that Mr Kabiti had not been fired but he was retired.
Justice Custom Kachambwa said the local forum of approaching a labour officer must first be exhausted before approaching the Labour Court.
The decision did not go down with Mr Kabiti who then filed a review application at the Constitutional Court.
In his constitutional application filed at the Constitutional Court this month, Mr Kabiti argued that the JSC did not follow the proper procedure in retiring him.
“The first respondent (JSC) enforced its decision to retire me without taking heed of the basic tenets of justice, in particular, the audi alterum rule.
“I was not given an opportunity to be heard fairly and my side of the story was never heard, before effecting an aggravating decision on me,” he said.
Mr Kabiti argued that the JSC did not follow the procedural requirements laid down under Section 17(5) of the Judicial Service Regulations in summarily retiring him.
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