Audi alteram partem-The Right to be Heard a case of God Vs Adam and Eve

Audi alteram partem?(or?audiatur et Altera pars) is a Latin word meaning "listen to the other side", or "let the other side be heard as well" or "right to be heard". It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.

"Audi alteram partem" is considered to be a principle of natural justice and one of the most famous cases around this principle is that of GOD VS ADAM AND EVE in the garden of Eden, where God knew beyond any reasonable doubt that Adam and Eve eat of the fruit but still gave them a chance to defend themselves.

Genesis 3:11-13 The Message (MSG)

GOD said, “Who told you you were naked? Did you eat from that tree I told you not to eat from?” The Man said, “The Woman you gave me as a companion, she gave me fruit from the tree, and, yes, I ate it.” GOD said to the Woman, “What is this that you’ve done?” “The serpent seduced me,” she said, “and I ate.”

Examples of Zimbabwean case law which define what the audi alteram partem rule is

In the 2003 High Court case of Chirenga versus Delta Distribution, Justice Smith ruled that where an employee charged for misconduct options to have legal representation, and his request is turned down, the requirements of the audi alteram partem rule would not have been met, even where the code of conduct is silent on the right to representation.

In another High Court case of Rwodzi versus Chegutu Municipality (2003), Justice Mavangira went further and laid down seven steps that should be taken to ensure the audi alteram partem rule is complied with where disciplinary charges are brought against an employee. The steps are:

1. the employee should be given reasonable notice of the impending hearing. The reasonableness of the amount of notice given will depend on factors such as the seriousness and complexity of the case;
2. the hearing must precede the decision;
3. the hearing must be timeous, to ensure that it takes place when the facts are still fresh in the minds of the parties and their witnesses.

However, where the employee requires time in order to prepare for the hearing or to arrange for representation, he should be given a reasonable opportunity to do so;

• the employee must be informed of the charge(s) against him, to meet the need for adequate preparation;
• the employee should be present at the hearing, but if he refuses to attend the hearing without good cause or has absconded the employer may be entitled to proceed with a hearing in his absence;
• the employee must be permitted representation and
• the presiding officer must be impartial.

Where an employee is served with the notification to attend disciplinary proceedings but decides to stay away from the proceedings, the employee is taken to have waived their right to be heard.

In?Moyo v Rural Electrification Agency SC4/14?an employee was advised in the notification letter of his right to appear in person or with a legal representative and was warned that in the event of his non-attendance, the hearing would proceed in his absence and possibly to his detriment. That notwithstanding, the employee travelled to out of the country without leave of absence and without seeking a postponement of the hearing.?The hearing proceeded in his absence and the employee was found guilty as charged and was dismissed. He sought to challenge the proceedings on the basis that his right to be heard had been breached.???The Supreme Court held that by deliberately absenting himself without leave from the hearing, he waived his right to challenge the conduct of the disciplinary proceedings.?He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing and in the circumstances the challenge was dismissed and the validity of the proceedings was upheld.

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