Andrew Bakasa v National Railways of Zimbabwe

The applicant, employed by the respondent (National Railways of Zimbabwe) since 2005 as a workshop engineer, was served on 3 February 2021 with a notification to attend a disciplinary hearing scheduled for 10 February 2021. Due to the Covid-19 national lockdown, the applicant experienced difficulties securing legal representation as lawyer's offices were closed. The applicant only managed to contact his lawyers on 9 February 2021. On 10 February 2021, the applicant sought postponement of the disciplinary hearing on grounds that in-person attendance posed a real risk of contracting SARS-COV-2 (Covid-19) and that he had not been served with all relevant documents. The disciplinary authority refused to postpone on Covid-related grounds but granted a 2-day extension to 12 February 2021. The applicant then approached the High Court on an urgent basis on 11 February 2021 to halt the disciplinary proceedings during the lockdown period.

• Whether conducting a disciplinary hearing during the national Covid-19 lockdown constituted an essential service under SI 83/2020 as amended by SI 10/2021
• Whether proceeding with the disciplinary hearing during lockdown violated the applicant's constitutional right to health under section 76(1) of the Constitution
• Whether the applicant's right to a fair hearing would be compromised by conducting the disciplinary proceedings during lockdown without adequate preparation
• Whether the matter was urgent and whether interim relief should be granted
• Whether the court should intervene to protect the applicant's constitutional rights to health and fair hearing

The application was granted. The court ordered that pending the return date, the respondent be and is hereby ordered to stay disciplinary hearing proceedings against the applicant.

A disciplinary hearing does not constitute an essential service under the Public Health (Covid-19 Prevention, Containment and Treatment/National Lockdown Order) SI 83/2020 as amended by SI 10/2021. Conducting a disciplinary hearing during a national lockdown imposed to contain the Covid-19 pandemic violates the lockdown regulations and poses an unacceptable risk to the health and safety of participants. The constitutional right to health under section 76(1) of the Constitution must be protected by courts, and employers cannot compel employees to attend non-essential in-person proceedings during a national lockdown when such attendance poses a real risk of contracting a deadly virus. Courts have a constitutional duty under section 165(1)(c) to safeguard human rights and freedoms and the rule of law, which includes protecting the right to health and the right to a fair hearing. When the balance of convenience is assessed, temporary postponement of disciplinary proceedings causes no prejudice to an employer, whereas proceeding during a dangerous pandemic environment causes real and irreparable harm to the employee.

The court observed that the respondent's insistence on proceeding with the disciplinary hearing showed "misguided zeal" and that the disciplinary authority "paid lip service to the safety and protection of the applicant and his legal counsel" and "frowned and defied government directive and law." The court noted with approval that regular courts had, in conformity with lockdown laws and regulations, suspended one-on-one hearings and were only operational for urgent applications such as bail applications to protect the rights of individuals. The court commented that the persistence on holding the hearing was not accompanied by any provision of certificates reflective of the Covid-19 status of the members, creating real risk of virus transmission. The court characterized the respondent's conduct as showing "obstinacy" and "overzealous" insistence that threatened to thwart government's noble directive to protect citizens' health.

This case is significant in Zimbabwean jurisprudence (though it is a Zimbabwean case, not South African) as it demonstrates the primacy of constitutional rights to health and fair hearing over employer prerogatives during a public health emergency. It establishes that courts will intervene to protect employees from being subjected to non-essential disciplinary processes during a national lockdown when such processes pose health risks. The judgment affirms the courts' role in enforcing public health regulations and in balancing competing interests during a pandemic, prioritizing life and health over administrative convenience. It also demonstrates judicial recognition that the right to health is a fundamental constitutional right that must be protected, and that employers must comply with national lockdown regulations even in conducting their internal processes. The case illustrates the application of the balance of convenience test in urgent applications involving public health concerns during the Covid-19 pandemic.