Virginia Zimunya v District Medical Officer – Marondera N.O and Health Service Board

The applicant is a war veteran employed by the second respondent as a health professional and nurse at Chimbwanda Rural Clinic for 40 years. Since 2015, she was subjected to a series of disciplinary hearings by officials from the first respondent. She alleged victimization based on her political affiliation with ZANU PF and her status as a war veteran. On 11 October 2021, she was served with another charge letter inviting her to a disciplinary hearing set for 15 October 2021. The applicant filed an urgent chamber application on 14 October 2021 for a temporary interdict to stop the hearing, arguing that she should be charged under the Health Services Regulations 2006, S.I. 117/2006 (applicable to public health sector employees) rather than under Statutory Instrument 15 of 2006, the National Code of Employment (which does not apply to her). At the hearing on 20 October 2021, there was uncertainty whether the disciplinary hearing had already been conducted.

• Whether the applicant met the requirements for granting a temporary interdict
• Whether the respondents were applying the correct statutory instrument in charging the applicant
• Whether S.I. 15 of 2006 (National Code of Employment) or S.I. 117/2006 (Health Services Regulations 2006) applied to the applicant as a public sector nurse
• Whether the court could vary the provisional order to address the uncertainty about whether the hearing had already taken place

The court granted a provisional order with the following terms: (1) Respondents are barred, stopped and interdicted from conducting disciplinary hearing proceedings against the applicant under S.I. 15 of 2006; (2) Respondents are ordered to charge and discipline the applicant under the Health Service Regulations 2006, S.I. 117/2006; (3) Respondents to pay costs on an attorney and client scale in the final order. Interim relief granted: (1) Respondents barred from conducting the disciplinary hearing scheduled for 15 October 2021 under S.I. 15 of 2006; (2) If the hearing has already taken place, respondents interdicted from serving the applicant with the findings of the Disciplinary Authority; (3) No order as to costs at the interim stage. The matter was set down for confirmation or discharge of the provisional order.

Public sector nurses employed by the Health Service Board must be charged and disciplined under the Health Services Regulations 2006, S.I. 117/2006, and not under the National Code of Employment (S.I. 15/2006). The National Code of Employment does not apply to public health sector employees. An employer's failure to apply the correct statutory framework in disciplinary proceedings constitutes grounds for a temporary interdict where the applicant establishes: (1) a prima facie right; (2) actual or reasonably apprehended injury; (3) no other adequate remedy; (4) irreparable harm; and (5) the balance of convenience favours the interdict. The court has power under Rule 27 of the High Court Rules 2021 to vary provisional orders as it deems fit to address changing circumstances.

The court made an observation that the applicant may be perceived as "a nuisance to the organization mainly because she thinks as a war veteran nothing can happen to her," though this did not affect the court's decision on the legal merits. The court noted that the applicant had been subjected to various disciplinary hearings before, some relating to absconding work, and had raised grievances with relevant authorities without receiving responses. The court also commented on the timing of the application, which was filed on 14 October 2021 for a hearing scheduled for 15 October 2021, creating uncertainty about whether the hearing had already occurred by the time the matter was heard on 20 October 2021. This led to counsel giving conflicting information about whether the hearing had proceeded.

This case is significant in Zimbabwean labour law as it clarifies the proper application of statutory instruments governing disciplinary proceedings for public sector health workers. It establishes that public sector nurses employed by the Health Service Board are governed by the Health Services Regulations 2006 (S.I. 117/2006) and not by the National Code of Employment (S.I. 15/2006), which applies to private sector employment. The case also demonstrates the court's willingness to intervene where employers apply incorrect regulatory frameworks in disciplinary proceedings, and illustrates the court's power under the High Court Rules to vary provisional orders to address changed circumstances or uncertainties.