Saturday 15 May 2021
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Simaata and ACC haunt Mwoombola

Having resigned from public office amidst accusations of tender irregularities, fraud and corruption, as well as a pending disciplinary hearing at the Ministry of Health, Andreas Mwoombola remains on the radar of criminal investigations by the Anti-Corruption Commission.
Mwoombola jumped ship this year in March while a disciplinary case in which he was to stand was still ongoing.
In 2018, he had been transferred to the Office of the Prime Minister on account of his squabbles with then health minister, Bernard Haufiku.
It has however come to light that the Secretary to Cabinet, George Simaata now wants the case to be dismissed; arguing that it no longer has any merit since Mwoombola is no longer a government employee.
He further wants Mwoombola to pay all the legal costs incurred.

New health minister in the dark
The Patriot sought clarity from Simaata on whether he would proceed to institute a criminal court case against the ex-public official in light of allegations that he awarded tenders to companies connected to him.
“I do not discuss personal matters about Mwoombola,” he retorted.
Simaata suggested that the matter was a personal one in spite of it being in the public eye and has court papers filed on the High Court public platform called e-justice.
The new health minister, Kalumbi Shangula said he was not in the know about the proceedings against Mwoombola.
“I am not familiar with the case and when I assumed duty Mr. Mwoombola was not there. So I have no idea about the case whatsoever,” he said.
The anti-corruption watchdog Director General, Paulus Noa advised that Simaata can proceed with filing a criminal court case at any time that he is ready to do so and does not necessarily need to wait for their investigation to be complete.
Said Noa, “the ACC has been investigating that case pertaining to the official of the Ministry of Health. Obviously Mr. Mwoombola was the Permanent Secretary that time. We are still pursuing to find out what actually transpired.  It’s a criminal investigation.
The law does not prohibit the Secretary to Cabinet to lay a criminal charge against a person who has resigned from the public service. He can still lay a criminal charge if they have any evidence against the suspect. There is nothing wrong. Those criminal investigations by ACC are not linked to labour. I will not say they need to wait for the ACC if they have the evidence.”

Throw out Mwoombola’s court case with costs
In Simaata’s court arguments, contained in papers filed by lawyers, Apollos Shimakeleni and Nixon Marcus, he submits that   Mwoombola’s decision to resign from public office had a significant and determinative effect on ongoing court proceedings.
“His last working day was 28 February 2019.  Applicant’s resignation from the Public Service is common cause and a matter of public record. Applicant’s decision to resign from the Public Service, before the disciplinary proceedings against him were finalised, activated the provisions of section 26(19) of the Public Service Act.
He was automatically deemed discharged from employment.”
As a result of Mwoombola’s resignation, Simaata issued a notice in terms of Rule 72 of the Labour Court Rules to request the Court to determine the following question of law:
“Whether the applicant’s application had become moot or academic on account of the fact that applicant resigned from his employment with the Public Service, and on the basis of section 26(19) of the Public Service Act 13 of 1995 is deemed to have been discharged on account of misconduct with effect from the date on which he resigned.”
Said Simaata, “we submit that this question if answered affirmatively entirely disposes of applicant’s case.
It renders the issues raised by the application moot, making it inappropriate to render a decision on them.”
He relies on Section 26 (19) of the Public Service Act 13 of 1995, as amended, which states that: “any staff member who, while suspended under subsection (2)(a) or while a charge brought against him or her under this section has not been finally dealt with in accordance with the provisions of this section, resigns from the Public Service or assumes duty in other employment, shall be deemed to have been discharged on account of misconduct with effect from the date on which he or she resigned or assumed duty in other employment”.
He thus submitted that, as a matter of law, there is no case pending before the disciplinary committee.
“Any decision that this Court would render, concerning the appointment of the disciplinary committee and its composition will be moot or academic.  The same applies to the alternative relief sought by applicant,” he said.

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