FORMER prosecutor Patrobs Dube, who was fired by former Prosecutor-General (PG) Johannes Tomana for leading a strike over better working conditions, has approached the High Court querying why the hearing on the rescission of judgment application filed by the National Prosecution Authority (NPA) challenging his reinstatement, has not yet been set down.
BY SILAS NKALA
Dube was fired in November 2011 alongside other prosecutors, Leopold Mudisi, Dereck Charamba, Mehluli Tshuma and Musekiwa Mbanje.
Following their dismissal, Dube filed a Labour Court application against the Civil Service Commission (CSC) challenging his dismissal and the Labour Court upheld his application ordering his reinstatement without loss of salary and benefits.
The Labour Court also ruled that in the event that reinstatement was no longer possible, the CSC was supposed to pay him damages.
However, realising the CSC was reluctant to reinstate or pay him, Dube approached the High Court seeking an order compelling his new bosses the NPA to reinstate him, but both the NPA and CSC did not file responses to his application prompting High Court judge Justice Francis Bere to grant a default judgment ordering his reinstatement.
The judgment prompted NPA to file an application for rescission of Justice Bere’s default judgment citing technical variances as the reasons for not responding to Dube’s application.
But since the rescission of judgment application was filed last year, the matter has not been set-down for hearing, prompting Dube to raise concerns.
On Tuesday, Dube approached the Bulawayo High Court Registrar, Civil Division, to register his displeasure over the delay in set-down of his matter and the Civil Division is said to have agreed on setting a date for the hearing soon.
However, in his founding affidavit National Director of Public Prosecution Nelson Mutsonziwa cited an array of technicalities that had delayed their response to the application.
He said Justice Bere’s ruling should be set aside because papers had to be sent to the head office in Harare for appropriate response and that lack of understanding by his officers on which office to refer the papers had led to the delay.
“Prospects of success in the application on the merits are very bright …The relief the first respondent (Dube) sought was not legally possible as a consequence of the NPA Act which bars persons with pending disciplinary proceedings from being transferred to NPA but remain under the employ of CSC,” he said.
“It is therefore legally impossible to reinstate or consider first respondent as eligible to be considered an employee of the applicant when the self-same piece of legislation he relies upon prohibits such action,” Mutsonziwa added urging the court to set aside the reinstatement order.
But in his response to the application, Dube said the reasons given for the delay were flimsy at law as the papers arrived in Harare on time. He said it was apparent that the NPA wilfully failed to act when the papers were received.