A former Kalomo magistrate who was dismissed from employment for allegedly reporting to work drunk and drinking on duty, has opposed to the State’s request for extension of time in which to respond to his petition.
He claims that the State’s request for 21 more days in which to respond, is not only an attempt to employ delaying tactics but also injurious to him as he has been out of employment for a long time.
In this matter, Besa Mutale has sued the Attorney General challenging the decision of the Judicial Service Commission (JSC) to dismiss him from employment on allegations of reporting to work drunk and drinking on duty.
In his affidavit in opposition to the summons for an order for leave to extend time, Mutale stated that he was employed in the Judiciary as a magistrate based at Kalomo Subordinate Court.
He stated that he filed his petition against the Attorney General on March 20, 2019 and served the same on the respondent on March 21, 2019, which was dully acknowledged as having been received.
Mutale stated that on March 27, both parties attended the scheduling conference where orders for directions were issued by the court, adding that the State should have filed an answer and opposing affidavit on or before April 18, 2019.
He complained that to date, the State had not filed any prerequisite documents in opposing his petition.
Mutale opposed to the extension of time, saying the State had enough time to do so.
He added that no convincing reason had been given as to why the State’s advocates had not filed the prerequisite documents in compliance with the Law and the Court’s Orders for Directions.
“I vehemently oppose to the extension of time in which to file an answer and an affidavit in opposition as the respondent has enough time to do so and also that no convincing reason has been given as to why the respondent’s advocates have not filed the prerequisite documents in compliance with the law and this honourable court’s orders for directions,” he stated.
Mutale stated that the State’s request for 21 days more in which to obtain instructions from their client and then file the answer and an affidavit in opposition, was not only an attempt to employ delaying tactics but also injurious to him as he had been out of employment for a long time.
He added that the delay by the State in responding to his petition would further prejudice him.
Mutale stated that it was mandatory for the State to file the response within 14 days of the service of the petition.
In this matter, Mutale is seeking several remedies among them; an order of certiorari that the judicial Service Commission’s decision to dismiss him based on the recommendations from the judiciary management instead of the Judicial Complaints Commission, was done in bad faith and was therefore unreasonable, illegal, unconstitutional ab initio and must be quashed.
Mutale is also asking the court to reinstate him with full benefits from the date of his dismissal and that the dismissal letter ought to be expunged from his employment file.
He is further seeking a declaration and order that the decision made by Acting Chief Registrar and director of court operations Charles Kafunda and Kalomo Subordinate Court magistrate in-charge Mishabati Kahonyi to charge him with taking alcohol whilst on duty and suspend him, was illegal and unconstitutional as the duo had no legal mandate to suspend him and as such, the said suspension should be quashed from his employment file.
He is seeking a declaration that the decision of the Judicial Service Commission without being heard by the JCC and without any recommendations from the JCC and the acts of the entire judiciary management, violated the laws of Zambia.
Mutale is also seeking damages for illegal harassment, torment suffered by the actions of the judiciary management and general damages.
He is further seeking damages for professional reputation damage, odium, anguish and torture caused during the period of exchange of several letters, suspension and subsequent dismissal among other reliefs.
Mutale had stated in his petition filed on March 20 in the Constitutional Court Registry that he, on April 19, 2017, received a letter from Kahonyi where he was charged with two offences of reporting to work drunk and drinking beer at work.
He stated that in the letter, Kahonyi recommended disciplinary actions against him and was later suspended for seven days which was from April 24 to May 2, 2017.
Mutale stated that he suspended by Kafunda on May 9, 2017 for the same offences.
He stated that he was through a letter dated October 13, 2017 dismissed from employment by the JSC and that he tried to appeal against his dismissal on the premises that he was not given the right to be heard.