By Fidelis Munyoro
Magistrates’ Association of Zimbabwe (MAZ) chairperson Ignatio Mhene and secretary-general Ndumo Masuku were properly found guilty of misconduct by their disciplinary authority, the Supreme Court has ruled, for issuing a Press statement without clearance from the Judicial Service Commission (JSC).
They were suspended for a year and that period was treated as unpaid leave, but they appealed successfully to the Labour Court, which set aside the decision by the JSC.
The commission then appealed in turn to the Supreme Court and has now won the final round as now further appeals are possible.
The pair issued a Press statement in The Sunday Mail in September 2017 without the requisite authority from the JSC, thereby breaching its policy for employees to refrain from talking to the Press.
They were hauled before a disciplinary authority which found them guilty of misconduct. The JSC reprimanded the two and treated the one-year period the duo was on suspension as leave without pay.
On the first appeal, the Labour Court ruled in their favour finding nothing wrong with the Magistrates Association issuing press statements saying it was not bound by the circulars issued by the chief magistrates’ office that employees required clearance from the authorities to communicate with the Press.
On appeal, the Supreme Court upheld the JSC’s argument it had issued two circulars that distinctly informed all its employees that no communication with the press were allowed without clearance of the Secretary of the JSC.
Writing the judgment for the court, Deputy Chief Justice Elizabeth Gwaunza found merit in the appeal and quashed the Labour Court’s decision.
She ruled that the circulars by the chief magistrate were binding upon all of its staff and had to be followed by all of the JSC employees.
“Despite the fact that the association had legal personality, the respondents (Mhene and Masuku) could not do anything which was not part of their condition of service under the cover of the association,” said Dep Chief Justice Gwaunza.
She said the lower court fell into error when it failed to realise that Mhene and Masuku owed a duty to the JSC to follow the circulars which barred them from communicating with the press without authority.
The Deputy Chief Justice said the two clearly defied a lawful order given by the JSC adding that they should have first sought clearance from their employer before issuing the press statement.
“The court a quo erred in finding that the acts of MAZ could not be attributed to Mhene and Masuku in their individual capacities,” she said allowing the appeal to succeed.
Mhene and Masuku were in February 2018 found guilty of issuing a press statement on behalf of their association without permission from the then JSC secretary Justice Rita Makarau.
For the offence, the two got away with a reprimand coupled with a stern warning that a sterner disciplinary action would be taken against them if they were involved in similar acts of misconduct in the future.
But a little over 18 months later, the two issued a press statement on September 3 2019 dismissing allegations by top lawyer Mr Wilson Manase during public interviews for the post of prosecutor general, that the lower courts were infested with corruption.
JSC said the two magistrates violated the employer’s code of conduct which prohibited them from speaking to the press without clearance from the secretary.
Advocate Thabani Mpofu represented the JSC while Mr Mzokuthula Mbuyisa acted for Mhene and Masuku. The Herald