By Mashudu Netsianda
ZVISHAVANE – The Judicial Service Commission (JSC) has dismissed a senior magistrate who has been working for the past 33 years without basic five O’levels.
The “under-qualified” Joe Kabiti, a senior magistrate at Zvishavane Magistrates’ Court, was dismissed for allegedly failing to academically upgrade himself. Kabiti last week took his case to the Bulawayo High Court seeking an interdict barring JSC from firing him.
He argued that as a war veteran he enjoyed “privilege” to remain employed despite “lacking” the requisite qualifications.
According to a letter from the JSC, which The Chronicle is in possession of, the only qualification that Kabiti holds is a certificate of community court obtained from Domboshava Training Centre soon after independence.
Kabiti, who was appointed into the public service as a presiding officer in 1981, is now fighting for his job through the courts after JSC sent him a dismissal letter last month.
Part of the letter titled: “Retirement before pensionable age: Joe Kabiti EC No. 1363187Z: Senior Magistrate, Zvishavane Magistrate’s Court: JSC, reads:
“(Mr) Joe Kabiti was appointed into the public service as a presiding officer on June 15, 1981, with a certificate in community court.
“In 1997, the post of presiding officer was phased out and all incumbents were given an option to upgrade their qualifications by obtaining five O’Levels before acquiring a magistrate’s admission certificate . . . for those who upgraded their qualifications and passed the magistrate’s admission certificate examinations, they were appointed magistrates. Kabiti has not obtained any of the qualifications to date . . .”
Section 17 (4) (b) of the Judicial Service Commission Regulations, 2014 states that the commission may require a confirmed member to retire if he or she is not suitable for the post he/she occupies or any other post to which he/she could be promoted or transferred without his/her consent.
“In view of the fact that (Mr) Kabiti does not have the qualifications for the post of magistrate he cannot be regarded to this post hence the retirement in terms of Section 17 (4) (b) of the Judiciary Service Commission Regulations, 2014,” read the letter signed by a W Chikwana on behalf of the JSC secretary. The letter was also copied to the Chief Magistrate Mishrod Guvamombe.
Kabiti last week filed an urgent chamber application challenging his employer’s decision to force him into early retirement. The application, citing JSC and the paymaster, the Salary Service Bureau (SSB) as respondents, seeks an order interdicting the respondents from terminating his contract and salary.
“I’m making an application for suspension of an unconstitutional and unlawful intended termination of my salary in terms of the letter dated February 19, 2015 addressed to me by the Judiciary Service Commission in terms of section 17 of the Judicial Service Commission Regulations, Statutory Instrument 104 of 2014,” said Kabiti.
Kabiti through his lawyers, Mutendi and Shumba said his dismissal was not done procedurally, arguing that there was no fair hearing to the matter.
“I verily believe that if this unconstitutional and unlawful summary termination of my salary is enforced without any fair hearing complying with the procedural fairness and also without weighing my administrative, constitutional and labour rights, I will be gravely prejudiced and my rights unlawfully abrogated,” he said.
In his argument, Kabiti claimed that by virtue of being an ex-combatant he had the ‘privilege’ to remain as a magistrate.
“I trained as a presiding officer at Domboshava Training Centre in 1982 and attained the requisite qualifications. I qualify to be employed as a magistrate by JSC not only by virtue of being a holder of a certificate in community court from Domboshava, but also through a government appointment as an ex-combatant.
“JSC is very conversant of this qualification which exonerated me from the 1997 abolition from office as a presiding officer,” he said.
Kabiti further argued that JSC enforced the decision to sack him without taking heed of the basic principles upholding administrative justice and fair dismissal of employees.
“The letter had an effect of a summary dismissal by summarily terminating my salary and further retiring me from the office of senior magistrate behind the façade of section 17 (4) (b) of the Judicial Service Commission Regulations.
“JSC enforced the decision without upholding administrative justice and fair dismissal of employees, which is the audi alteram principle accorded to me to be heard fairly, speedily by an independent and impartial body so that my side is considered before an aggravating decision with adverse consequences against me is made,” he said.
“The decision by JSC to unilaterally dismiss me and terminate my salary through ordering SSB to stop paying my salary will surely render me destitute since I secured a loan which is being garnished on my salary. The fact that JSC decided on my retirement package without hearing my side constitutes a grave miscarriage of justice,” argued Kabiti.
Justice Andrew Mutema referred the matter to the Labour Court for arbitration.
“This matter being purely an employment issue in terms of section 89 (6) of the Labour Act, this court does not have the jurisdiction to entertain this application. Applicant is advised to approach the Labour Court,” the judge ruled. The Chronicle