Court name
Harare High Court
Case number
673 of 2022

Gigatron Engineering Services (Pvt) Ltd v National Social Security Authority (673 of 2022) [2022] ZWHHC 673 (05 October 2022);

Media neutral citation
[2022] ZWHHC 673
Coram
Mafusire J

1

HH 673-22

HC 5495-20

GIGATRON ENGINEERING SERVICES (PVT) LTD      

versus

NATIONAL SOCIAL SECURITY AUTHORITY

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 16 March 2022

Date of judgment: 5 October 2022                                                     

Opposed application

I. Gonese, for the applicant

C. Tsikira, for the respondent

MAFUSIRE J

[1]        This is a court application. The applicant is a private company. The heading to its application cites s 6 of the Administrative Justice Act [Chapter 10:28]. But nowhere in the entire body of the application is any further reference made to this statutory provision. Apart from costs, the draft order seeks two unrelated remedies. The first prayer is meaningless. In terms of it, an order is sought to order the respondent to furnish the applicant with a result of its application within seven days. At the very least, which application? Within seven days of what? Lawyers should not be perfunctory in drafting court documents. Outside of the pleadings, such an inelegant draft order cannot be transformed into a credible order of court should the application succeed. The second prayer is no better. It seeks an order directing the respondent to investigate the allegations of corruption and misconduct of the Chief Factories Inspector Mr P Chipunza. But he has not been cited. He is not a party to the proceedings. At any rate, Chief Factories Inspector, where? In Kangai v Sakarombe & Anor HH 580-22 this court said a court order must be complete in itself. The nature and extent of the relief granted must be self-evident on the face of it. It should not require an interpretive process or a reference to the pleadings.

[2]        The relief above is sought against the respondent, the National Social Security Authority. It is a parastatal or statutory corporation set up in terms of s 4 of the National Social Security Authority Act [Chapter 17:04], among other things, to administer the various social security schemes established under that Act. Its remit includes the power, among other things, and in terms of s 3(b) of the Factories and Works (Pressure-vessels) Regulations, 1976, R.G.N. 303 of 1976, to approve, through its chief inspector, the design and construction of pressure-vessels used by companies in the industry. Ordinarily, a pressure-vessel is a tank for holding gas or liquid under pressure. Under R.G.N 303 of 1976 aforesaid, it is any closed vessel other than a boiler, or the cylinder or chamber of a steam or internal-combustion engine, which is subjected to an internal pressure higher or lower than that to the atmosphere.

[3]        Distilled from its founding papers, the background to the applicant’s case is this.  It is an engineering company. It has been conducting pressure tests and non-destructive tests on behalf of its clients since 2017. Such tests were being conducted under the purview of the respondent’s former chief inspector of factories. He used to approve all its reports. However, the respondent changed its chief inspector of factories in 2019. From June 2020 the respondent started communicating with the applicant’s customers to inform them that the applicant was not on its list of authorised independent inspection bodies. In July 2020 meetings were held between the applicant and the respondent. The respondent advised the applicant to apply to be included on the list of authorised independent inspection bodies. It did that on 9 July 2020. The respondent replied on 15 July 2020. In that reply, and among other things, it advised the applicant that the processing of its application would be delayed because the respondent was investigating a possible case of conflict of interest involving the applicant and one of the respondent’s own employees, Agushito Kamba (“Kamba”).

[4]        There was further correspondence between the parties and some further developments on that issue and others as well. These included a labour dispute between the respondent and Kamba and a criminal case against him.  But it seems there was no conclusion to the applicant’s application aforesaid until it instituted these proceedings on 29 September 2020. There have been allegations and counter allegations of corruption, extortion, loss of business and downright criminality. Among other things, the applicant alleges that the respondent’s chief inspector, variously referred to as Mrs P. Marunza, Mr P Marunza and Mr S. P Marunza, has been making extortionist demands that she (or he) be granted shareholding in the applicant. It alleges that because it would not oblige, the respondent has sat on its application aforesaid. It is on that basis that it requires the respondent to investigate this chief factories inspector.

[5]        The respondent’s case, in summary, is that the applicant is Kamba’s alter ego. Abusing his vantage position as factories inspector, Kamba has corruptly channelled inspection business to the applicant which is fronted by his own wife as managing director. Both the applicant and Kamba had gone to great lengths to conceal Kamba’s conflicted and fraudulent relationship with the applicant until this was unmasked through investigations by the respondent. This had led to Kamba being suspended. But because Kamba was challenging his suspension, the respondent could not finalise the applicant’s application for listing as an authorised independent inspection body.

[6]        The application is so sloppy and confused as to lack seriousness. Apart from there being no conclusive pointer in the entire application as to which gender the said P Marunza is, given the seriousness of the remedy sought against him/her, his/her non-joinder is fatal. At the hearing, Mr Gonese, for the applicant, practically abandoned the second remedy. He conceded the absence of any statutory authority or law as would oblige the respondent to carry out the investigation on the allegations of corruption levelled against this P Marunza. He suggested that this particular remedy be severed from the rest of the prayer. That puts paid to the second order sought by the applicant in the draft order.

[7]        The first prayer cannot succeed either. In the body of the founding affidavit there is not a single reference to the law, rule or legislation upon which the application is hedged except a fleeting reference to s 68 of the Constitution. It is alleged that the decision to suspend the applicant pending the application for listing is not only unlawful but grossly unreasonable and that it flies in the face of the applicant’s right to administrative justice as provided for in s 68 of the Constitution. The respects in which this is so have not been specified. Much of the stuff in the papers filed by both parties, from their affidavits to the heads of argument, is largely irrelevant. The application lacks precision on the exact cause of action and the exact nature of the relief sought. It is common cause that the applicant is not, and has never been, on the respondent’s list of authorised independent inspection bodies. It might have been carrying out such inspections for its own customers, but that does not mean it was on the list. But the respondents strenuously denies the allegations anyway.

[8]        Further confusion on the applicant’s position arises from the fact that despite wanting a formal answer on its application for listing, it veers somewhere in midstream to allege that there is no requirement in law for such listing, allegedly because the aforesaid R.G.N. 303 of 1976 does not require such listing. So then, why apply to list? The issue is not whether or not the respondent is entitled or empowered to make a list of approved inspectors. The issue is whether the applicant’s right to administrative justice has been breached. The applicant has only made a passing reference to s 68 of the Constitution and s 6 of the Administrative Justice Act without relating his cause of action to these provisions. Section 68 of the Constitution governs the right to administrative justice. It then leaves the modalities of administrative justice to an Act of Parliament. Section 6 of the Administrative Justice Act, which is referred to in the heading of the application, provides, in paraphrase, that any person whose rights, interests or legitimate expectations are materially and adversely affected by any administrative action, and who is aggrieved by the failure of an administrative authority to supply written reasons for its action within the period specified in the relevant enactment, or within a reasonable period, may apply to the High Court for an order compelling the supply of such written reasons.

[9]        Section 6 of the Administrative Justice Act is widely cast. But the crisp mandate given this court is to order the administrative authority to supply reasons. The applicant wants the respondent compelled to furnish the applicant with a result of its application. It has not identified which provision it is relying on. At any rate, on 15 July 2020, that is, six days after the applicant had submitted its application, the respondent duly responded. Among other things, the respondent explained why the fate of its application would only become known after the investigations. Why or how such a response would be a breach of the applicant’s constitutional or statutory rights has not been specified. The applicant may not have liked the content of the response. But all the same, it was a response. The applicant wants to be furnished with a result of its application. One fails to see how s 6 of the Administrative Justice Act comes into it.     

[10]      In the circumstances, the application is hereby dismissed with costs for lack of merit.   

5 October 2022

 

Lawman Law Chambers, applicant’s legal practitioners

Muvirimi Law Chambers, respondent’s legal practitioners

Similar Judgments

No Similar Judgment found.