News / Local
High Court judge dismisses minor's case
05 Oct 2021 at 06:34hrs | Views
BULAWAYO High Court Judge Justice Nokuthula Moyo has dismissed with costs the application by a nine-year-old pupil from Gwanda, who was suing teachers' unions and Government.
Amuhelang Ulukile Dube, a pupil at Mafuko Primary School in Gwanda district, Matabeleland South, had sought an order barring teachers in public schools from striking over poor salaries and working conditions.
The minor, who is being represented by her grandmother, Ms Senzeni Nyathi, through her lawyers Ndove and Associates, had filed an urgent chamber application at the Bulawayo High Court.
In papers before the court, the Zimbabwe Teachers' Association (Zimta), Zimbabwe Confederation of Public Sector Trade Unions,
Progressive Teachers' Union of Zimbabwe (PTUZ), Amalgamated Rural Teachers' Union of Zimbabwe (ARTUZ), the chairperson of the Public Service Commission, Dr Vincent Hungwe, (former) Primary and Secondary Education Minister Cain Mathema, Minister of Public Service, Labour and Social Welfare Professor Paul Mavima and Minister of Finance and Economic Development Professor Mthuli Ncube, were cited as respondents.
The application followed recent threats by teachers not to resume work until their demands for better salaries are met.
Teachers are demanding to be paid US$550 or its equivalent in local currency a month.
In her founding affidavit, Ms Nyathi said actions of the cited teachers' unions and their members to refuse to take up classes over salary grievances and improved working conditions coupled with the non-intervention of the Government constitutes a violation of the children's right to education as enshrined in sections 75 and 81 of the country's Constitution.
She wanted the teachers' unions together with their members interdicted from boycotting classes with all teachers being directed to report for duty within 48 hours of the granting of the order.
"I further seek ancillary relief to the effect that the Government be ordered and mandated to provide teaching staff to ensure that there would be no interruption of teaching services or classes at all public primary and secondary schools in Zimbabwe so that the rights of the children are not violated," said Ms Nyathi.
The applicant said in the event that the teachers refuse to comply, Government should be directed to take all measures to ensure that there is no interruption of classes.
In dismissing the application, Justice Moyo ruled that Ms Nyathi failed to establish a locus standi in the matter by suing in her capacity despite the fact that she was not the minor's guardian.
"The applicant has not established locus standi in this matter and should have used the legal guardian, who is the father of this child, to sue in this matter," she said.
Justice Moyo said the applicant's relief sought was also incompetent because it wanted the suspension of one right for the performance of another right on an interim basis.
"Of course, the relief sought in the interim is clearly incompetent as the court cannot suspend one right in favour of another on an interim basis where clear rights have not been proven," she said.
"In any event, how does one right get favoured against another in the interim?"
Justice Moyo said the application was not well thought out, badly crafted and rushed through.
"Applicant should have withdrawn it, tendered wastes costs and be set on a properly founded and well-drawn application," she said.
"It is in such matters that respondents are unfairly and unnecessarily put out of pocket. It is for these reasons that I will award costs on a higher scale. I accordingly dismiss the application with costs at a higher scale."
In their responses, the respondents through their lawyers, the Civil Division in the Attorney-General's Office, Matsikidze Attorneys and the Zimbabwe Human Rights NGO Forum, submitted that the application was fatally defective and hurried through without much thought being applied to many issues, including the proper citation of respondents.
The respondents also argued that a constitutional application can only be brought as a court application in terms of Rule 107 of the High Court Rules 2021.
Amuhelang Ulukile Dube, a pupil at Mafuko Primary School in Gwanda district, Matabeleland South, had sought an order barring teachers in public schools from striking over poor salaries and working conditions.
The minor, who is being represented by her grandmother, Ms Senzeni Nyathi, through her lawyers Ndove and Associates, had filed an urgent chamber application at the Bulawayo High Court.
In papers before the court, the Zimbabwe Teachers' Association (Zimta), Zimbabwe Confederation of Public Sector Trade Unions,
Progressive Teachers' Union of Zimbabwe (PTUZ), Amalgamated Rural Teachers' Union of Zimbabwe (ARTUZ), the chairperson of the Public Service Commission, Dr Vincent Hungwe, (former) Primary and Secondary Education Minister Cain Mathema, Minister of Public Service, Labour and Social Welfare Professor Paul Mavima and Minister of Finance and Economic Development Professor Mthuli Ncube, were cited as respondents.
The application followed recent threats by teachers not to resume work until their demands for better salaries are met.
Teachers are demanding to be paid US$550 or its equivalent in local currency a month.
In her founding affidavit, Ms Nyathi said actions of the cited teachers' unions and their members to refuse to take up classes over salary grievances and improved working conditions coupled with the non-intervention of the Government constitutes a violation of the children's right to education as enshrined in sections 75 and 81 of the country's Constitution.
She wanted the teachers' unions together with their members interdicted from boycotting classes with all teachers being directed to report for duty within 48 hours of the granting of the order.
"I further seek ancillary relief to the effect that the Government be ordered and mandated to provide teaching staff to ensure that there would be no interruption of teaching services or classes at all public primary and secondary schools in Zimbabwe so that the rights of the children are not violated," said Ms Nyathi.
The applicant said in the event that the teachers refuse to comply, Government should be directed to take all measures to ensure that there is no interruption of classes.
In dismissing the application, Justice Moyo ruled that Ms Nyathi failed to establish a locus standi in the matter by suing in her capacity despite the fact that she was not the minor's guardian.
"The applicant has not established locus standi in this matter and should have used the legal guardian, who is the father of this child, to sue in this matter," she said.
Justice Moyo said the applicant's relief sought was also incompetent because it wanted the suspension of one right for the performance of another right on an interim basis.
"Of course, the relief sought in the interim is clearly incompetent as the court cannot suspend one right in favour of another on an interim basis where clear rights have not been proven," she said.
"In any event, how does one right get favoured against another in the interim?"
Justice Moyo said the application was not well thought out, badly crafted and rushed through.
"Applicant should have withdrawn it, tendered wastes costs and be set on a properly founded and well-drawn application," she said.
"It is in such matters that respondents are unfairly and unnecessarily put out of pocket. It is for these reasons that I will award costs on a higher scale. I accordingly dismiss the application with costs at a higher scale."
In their responses, the respondents through their lawyers, the Civil Division in the Attorney-General's Office, Matsikidze Attorneys and the Zimbabwe Human Rights NGO Forum, submitted that the application was fatally defective and hurried through without much thought being applied to many issues, including the proper citation of respondents.
The respondents also argued that a constitutional application can only be brought as a court application in terms of Rule 107 of the High Court Rules 2021.
Source - The Chronicle
