Andrew Kunambura
SCHOOL teachers have taken Primary and Secondary Education minister Evelyn Ndlovu to court over her decision to suspend them without salaries for not reporting for duty when schools opened on February 7, describing the move as an infringement of the constitutional rights.
Ndlovu, on Thursday, issued a statement suspending payment of salaries for three months for teachers who did now report for duty since schools opened on Monday.
Teachers, together with headmasters, declared incapacitation when schools opened on Monday and did not report for work, throwing the sector into chaos.
Government tried to dangle a carrot, offering a 20% dalary imncrement and non-monetary incentives to the educators, but the teachers scorned the offer saying it was insignificant, insisting on a US$540 monthly salary.
Ndlovu responded by suspending salaries for three months to all the teachers who “went on strike”, saying their move was illegal.
But teacher union, Rural Teachers Union of Zimbabwe (Artuz) filed at the High Court yesterday challenging the three-month suspension of salaries claiming infringements of constitutional rights to fair labour practices.
Teachers are demanding the pre-October 2018 salary of US$540.
In an urgent chamber application filed at the High Court, Masaraure is seeking a declarator in terms of the pronouncement of the Court on the actions by Ndlovu in suspending all officials within its Ministry from employment without pay for three months on account of failure to present themselves to work for four days since schools opened on 7 February 2022.
Masaraure through his lawyer, Isheanesu Chirisa, Noble Chinhanu and Darlington Marange of the Zimbabwe Human Rights NGO Forum cited the Education Minister as a respondent.
Masaraure said the press statement is unreasonable and unfair.
“Its issuance is a blanket imposition on all officials within the Respondent en masse without justification and reasonable findings of any alleged misconduct on all officials who failed to report for duty since school opened.
“The press statement infringes on the Applicants’ right to administrative conduct that is lawful, reasonable, and both substantively and procedurally fair.”
Masaraure said there is no provision giving Ndlovu such powers as she purports to exercise of suspending all officials within its Ministry unilaterally.
“This is an Application for a Declaratur in terms of which the Applicant seeks the pronouncement of the Court on the action of the Respondent in suspending all officials within its Ministry from employment without pay for three months on account of failure to present them to work for four days since schools opened on 7 February 2022.”
“There is no provision giving the Respondent such powers as she purports to exercise or suspend all officials within its Ministry unilaterally. The provision is clear as to what happens and who should give effect to a suspension notice. For example, senior grade members who are part of the Applicant are prejudiced in having to be suspended by an order of the Minister when in fact; the law provides for them a different disciplinary authority. The press statement of the Respondent is therefore manifestly illegal and ought to be set aside.
“Although section 65 of the Regulations provides for a departure from the provisions above, it is only the Commission which can so authorise such departure or undertake such departure and not the Respondent on her own volition. Further, such departure is put to a test of whether or not it will result in a substantial miscarriage of justice for it to pass as a valid departure,” reads the founding affidavit.
“There is no doubt that there will be a serious miscarriage of justice when tens of thousands of teachers are suspended without following proper procedures with just one blanketed notice on such a wide scale.”
Masaraure said Ndlovu’s actions fall short of section 68 of the Constitution which provides for administrative justice that is lawful and substantively and procedurally fair.
He said the declaration by Ndlovu cannot possibly, under any circumstances, be held to be fair because it presupposes that all failed to return to work for the past four days by all teachers is a willful act of misconduct with no lawful excuse.
“Fairness dictates that there should be ascertainment of reasonable suspicion before any implication of misconduct, especially one which results in a suspension for three months with no pay.”
“It is assertively submitted that this is not the contemplation of fair labour practice as provided for under section 65(1) of the Constitution. Fairness supposes a look at the circumstances and an appropriate and befitting response being made. The decision of the Respondent is arbitrary and has no place in a democratic society.”
Masaraure said the matter is urgent by its very nature because it concerns the livelihood of tens of thousands of teachers in Zimbabwe who have been divested of their salaries forthwith.
