Discipline re: Disciplinary Hearings iro Approach ito Procedural Irregularities & Resolving Matters on Technicalities

SC18-15 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs B. SHONHIWA and F. GARATSA and P. ZARANYIKA
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

It is evident from its judgment that the court a quo determined and dismissed the matter on the basis of one technical point, that is, whether or not the hearing committee of the appellant in this case, was properly constituted. As indicated…, the court's finding on this point was based on a misconstruction ...

SC21-21 : ZIMBABWE UNITED PASSENGER COMPANY vs BEAULAR MASHINGE
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

On 24 February 2017, the Labour Court granted, with no order as to costs, an application for review brought by the respondent against the appellant. It thereby set aside the decision of the appellant to dismiss the respondent whom it reinstated with no loss of salary and benefits with effect from the date of the dismissal. In the alternative, and if reinstatement was untenable, it ordered that the appellant pays damages to the respondent.

This is an appeal, with leave, against that order.

BACKGROUND

The respondent was employed by the appellant as a bus conductor. Suspecting that she had committed an act of theft or fraud, the appellant brought the respondent before a disciplinary committee. The disciplinary committee failed to reach a decision in the matter. Instead of referring the matter to the Chief Executive, as is provided for in the governing code of conduct, the deadlocked disciplinary committee referred the matter to the Division Operations Manager, who, clearly oblivious of his incompetence in the matter, found the respondent guilty and dismissed her from employment.

On the sole basis that the referral of the matter to the Division Operations Manager was a nullity, the respondent approached the court a quo, on review, seeking to have the decision dismissing her set aside.

At the hearing of the matter a quo, the court held the appellant barred for want of filing heads of argument on time. It however proceeded to determine the matter on the merits.

It granted the application.

After setting aside the appellant's decision to dismiss the respondent, it made the additional order of reinstatement detailed above.

Aggrieved by the order of reinstatement, the appellant noted this appeal.

THE APPEAL

In the appeal, the appellant raised one ground of appeal as follows:

“The learned judge in the court a quo erred at law in ordering reinstatement of the respondent, or, alternatively, payment of damages in lieu of reinstatement, in an application for review where only a procedural irregularity was determined.”

Quite clearly, and correctly so, the appellant did not challenge the correctness of the court a quo's order to set aside the decision of the Division Operations Manager to dismiss the appellant as a nullity and therefore as unlawful. This therefore considerably narrows down the issues that fell to be resolved in this appeal.

THE ISSUE

The sole issue that arose in this appeal is whether, after setting aside the dismissal of the respondent as unlawful, it was competent for the court a quo to order the reinstatement of the respondent with no loss of salary and benefits with effect from the date of the dismissal, or in lieu thereof, the payment of damages....,.

THE LAW

It is common cause that the matter was placed before the court a quo by way of an application for review. It is further common cause that reviews before the Labour Court are governed by section 89 of the Labour Act [Chapter 28.01] which provides that the Labour Court shall exercise the same powers of review, in relation to labour matters, as would be exercisable by the High Court.

The powers of the High Court, on review, are based on the common law and on the provisions of the High Court Act [Chapter 7.06].

Section 28 of the High Court Act provides that on a review of any proceeding or decision in civil matters, the High Court shall have the power, subject to any other law, to set aside or correct the decision or proceedings reviewed. By virtue of section 89 of the Labour Act, the Labour Court similarly has power to set aside or correct the decision or proceedings reviewed.

As discussed above, the only issue that arose in this appeal is whether the court a quo could competently order the reinstatement of the respondent when it did not consider the merits of the charges preferred against the respondent in the disciplinary proceedings under review.

The appellant argued that the court had no such competence.

It correctly based its argument on the position of law, that, upon the setting aside of a fatally irregular decision in disciplinary proceedings, without a consideration of the merits of the matter, the status quo ante of the parties is restored. It mainly relied on the cases of Standard Chartered Bank of Zimbabwe Ltd v Chikomwe and 211 Others SC77-00 (SC77-2000), and Air Zimbabwe (Private) Limited v Chiku Mnensa and Another SC89-04, both decisions of this Court.

It appears to me, that, the appellant understood the legal position enunciated in the above authorities to only mean that the setting aside of fatally irregular proceedings, on review, automatically restores the proceedings to the last valid proceeding. In other words, it understood the legal position to be purely procedural, affecting only the procedural rights of the parties and not their substantive rights.

The appellant was partially correct.

Its understanding, however, represents the narrow procedural position. It is not uncommon for procedural irregularities to also affect the substantive rights of the parties to the dispute. It is not uncommon for procedural irregularities to produce nullities that then restore, in full, the rights of the parties ante.

The broader, and more readily acceptable position, in my view, is that the status quo ante of the parties that is restored upon the setting aside of the irregular employment disciplinary proceedings also relates substantively to the contractual status of the parties. Put simply, it must be understood to mean, broadly, that, upon the setting aside of fatally defective disciplinary proceedings, the employment contract is restored, without necessarily or by implication, negating the remedies and procedures available to each of the parties to terminate the contract in terms of the agreed terms.

It thus presents itself clearly to me that the restoration of the contract in such a situation has no effect on the merits of the charge or charges against the employee and the right of the employer to proceed against the employee in terms of the governing Code of Conduct.

The position that I come up with above was obliquely endorsed by McNALLY JA in Air Zimbabwe Corporation v Mlambo 1997 (1) ZLR 220 (S) where…, he accepted as correct the submission by counsel for the respondent to the effect that:

“…, as soon as there is a finding that the disciplinary findings were a nullity, it must follow that the employee is reinstated. After all, the basis for his dismissal has been set aside. So he has not been properly dismissed.”…,.

The conclusion that I reach above is similar to the conclusion reached by this Court in the case of Minerals Marketing Corporation v Mazimavi 1995 (2) ZLR 353 (S) where the court upheld the decision of the tribunal a quo to reinstate the employee after finding that a gross irregularity had occurred during the disciplinary proceedings.

The clear position of the law appears to me to be, that, upon the setting aside of employment disciplinary proceedings as a nullity, both the procedural and the substantive rights of the parties are restored to the position immediately before the nullified process. In other words, where a dismissal is set aside as being a nullity, the employee is reinstated as such notwithstanding the further disciplinary proceedings that the court may order by way of remittal or otherwise.

I thus reject, as stating the correct position at law, the argument by the appellant, that, the court a quo could only confine itself to confirming or nullifying the disciplinary proceedings of the appellant without granting substantive relief in the matter.

ANALYSIS

Applying the law to the facts of this matter, it cannot be disputed, that, by setting aside the dismissal of the respondent by the Division Operations Manager, the court a quo effectively restored the status of the respondent as an employee of the appellant - albeit one who had charges pending against her and had appeared before a disciplinary committee.

The record is not clear whether, prior to her being brought before the disciplinary committee, the respondent was on suspension with or without salary. This is a material consideration. In the absence of evidence that the respondent was on suspension pending the determination of the charges against her, the appeal has no merit.

I note, in passing, that, the issue that the employees in Air Zimbabwe (Private) Limited v Chiku Mnensa and Another SC89-04 were on suspension was the turning point in that case. The court reasoned, that, before the suspension was lawfully lifted, the employees could not be reinstated. In that case, the employees concerned were on suspension without salary. This is the status they reverted to after the setting aside of the disciplinary proceedings.

This reasoning does not and cannot apply in casu. It was not argued a quo that the respondent was on suspension without salary before she was unlawfully dismissed. It was similarly not so argued before us.

In the circumstances of this matter, the setting aside of the unlawful dismissal of the respondent restored her status as an employee of the appellant. To this extent, and in the absence of evidence that she had been lawfully suspended without salary before she was dismissed, the order a quo cannot be faulted.

In the result, I find no merit in the appeal which I must dismiss.

In view of the fact that there is no justification for departing from the general position that costs follow the cause, I must dismiss the appeal with an accompanying order of costs.

Accordingly, I make the following order:

The appeal is dismissed with costs.

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.BackgroundThe appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. ...

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.

Background

The appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. Their periods of employment ranged from 2007 and 2008 until January and April 2011 when their contracts of employment expired by effluxion of time.

Their contracts were not renewed because the project for which they were employed was finally wound up in 2011.

In July 2010, in a separate matter involving the respondent, its Workers Committee, and its employees, the first arbitrator (Nasho) ordered the payment of back pay, from 1 March 2009 to the date of the award, in line with the multi-currency system.

In conformity with that award, a Works Council Agreement was concluded, on 15 September 2010, to fix the back-pay due to all employees and the salary structure for non-managerial employees from 1 January 2010 onwards.

In a subsequent matter, the appellants in casu challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

The second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012.

On appeal, the arbitral award was upheld by the Labour Court. That decision is currently pending an application for leave to appeal to this court.

On 10 December 2012, following the rejection of their unfair dismissal claim by arbitrator Mugumisi, the appellants filed a further claim for the payment of arrear salaries and benefits.

The third arbitrator (Mambara) found in their favour and awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimant was retrenched.

The respondent, being aggrieved by that award, applied to the Labour Court for the review of the award.

Decision Appealed and Grounds of Appeal

The court a quo rejected two of the grounds of review mounted by the respondent.

It found, that, the Mambara award did not improperly seek to review or enforce the Nasho award. It also found, that, the prior decision of the court, upholding the Mugumisi award, was different from the matter currently before it because the former concerned back pay from the date of termination to the date of reinstatement as opposed to salary and benefits accrued before termination.

Consequently, it was not necessary that the current matter be held in abeyance pending the determination of the appeal in the earlier matter.

The court a quo found in favour of the respondent on the remaining two grounds of review:

(i) Firstly, it held, that, the Mambara award did operate to review and alter the court's previous decision that the appellants had not been unfairly dismissed. This resulted in uncertainty on the employment status of the appellants and the possible institution of other unnecessary claims.

Moreover, the arbitrator's findings, that, the appellants had implied permanent contracts of employment and that they had been retrenched were equally erroneous.

(ii) Secondly, the court found, that, the issue of the appellants grades was not part of the arbitrator's terms of reference. Thus, the arbitrator had misdirected himself in going beyond his remit and basing his award on extraneous terms of reference.

The court accordingly held, that, the review succeeded on these two grounds.

The arbitral award was set aside and substituted with the dismissal of the appellants claim.

The grounds of appeal in casu are that the court a quo erred in the following respects:

(i) In concluding, that, the arbitrator's award, mandating the quantification of an admitted liability, had the effect of altering the court's previous judgment.

(ii) In placing any significance on the arbitrator's misuse of the word retrenchment.

(iii) In concluding, that, the arbitrator had effectively conducted a re-grading exercise in determining what was due to the appellants.

(iv) In concluding, that, there was a reviewable issue raised before the court....,.

The Merits

Counsel for the appellants submits, that, the arbitrator did not go outside his terms of reference.

The Mambara award found, that, the 2010 Works Council Agreement (the 2010 Agreement) applied to all of the respondent's employees, including the appellants, in conformity with the Nasho award. It did not re-grade the appellants but simply provided that each claimant be paid in accordance with the 2010 Agreement from 1 January 2010 to the date of termination.

As regards the actual wording of the operative part of the award, he proffers the strange argument, that, the reference to 1 January 2010 is a mere typographical error and should have been a reference to 1 February 2009, which was the commencement date for payment claimed by the appellants.

He further argues, equally startlingly, that the use of the term “retrenched” in relation to the closing date for payment in the Mambara award is of no significance and must be regarded as being inconsequential. Rather, it must be read and construed as relating to the respective date of termination of employment of each appellant.

Counsel for the respondent counters, that, the arbitrator clearly went beyond the terms of reference set out at the beginning of his award.

Moreover, he erroneously applied the terms of the 2010 Agreement to the appellants by conflating various claims. The 2010 Agreement was confined to permanent employees and did not extend to the appellants who were employees on fixed term contracts.

Finally, he notes, that, the references to 1 January 2010 and retrenchment, in the operative part of the arbitral award, should not be regarded as mere typographical errors.

On the question of re-grading, arbitrator Mambara rejected the respondent's argument, that, the appellants had no specific grade in terms of their contracts of employment. Instead, he applied the Nasho award, which ordered that the salaries of the respondent's employees be regularised, coupled with the salaries specified in the 2010 Agreement.

The court a quo found, that, the arbitrator misdirected himself in re-grading the appellants and thereby going outside his terms of reference.

It is common cause, that, the arbitrator's terms of reference raised an unfair labour practice in the respondent's alleged failure to pay arrear salaries and benefits due to them from 1 February 2009 to the date of termination of their respective contracts of employment.

The arbitrator dealt with this question by following the Nasho award and adopting the lowest salary figure payable as stipulated in the 2010 Agreement.

In my view, this did not entail any re-grading of the appellants but simply involved applying the sums derived from the exercise conducted by the Works Council.

I am therefore unable to agree with the finding of the court a quo that the arbitrator exceeded his terms of reference.

The appeal accordingly succeeds in this particular inconclusive respect.

On the other hand, the operative part of the order delivered by the arbitrator is extremely problematic. It states:

“That the Respondent be and is hereby ordered to pay to each and every Claimant arrear salaries and benefits per the 16 September 2010 Works Council Agreement from 1st January 2010 to the date each and every claimant was retrenched.”…,.

I have no doubt that the learned arbitrator was alive to the fact that he was called upon to deal with claims for salaries and benefits from 1 February 2009 to the date of termination of each appellant's contract of employment.

This emerges clearly from his stated terms of reference and his comments at the beginning, and end, of his award.

I also have no quarrel with the trite proposition that technicalities should not be allowed to impinge upon or obstruct the delivery of justice in labour matters.

Nevertheless, I take the view that the order made by a judicial tribunal constitutes the decisive gravamen of its adjudicative process.

Moreover, it is that order that must be capable of obedience and practical enforcement by the parties concerned.

Its precise wording and exactitude of expression are therefore of paramount importance.

Consequently, where it is recklessly mis-pronounced, as it was in casu, it fails to achieve its fundamental purpose and cannot be condoned or endorsed by an Appellate Court.

To use the celebrated MacFoy phraseology, it is an arrant nullity and everything founded upon it must collapse.

In the instant case, the mis-citation of the date from which the appellants entitlement to their claims arose, i.e. 1 January 2010, is patently erroneous inasmuch as it fails to address the preceding period from 1 February to 31 December 2009.

Again, the reference to the date when each claimant was “retrenched” is entirely misplaced in the context of termination of contracts of fixed duration by effluxion of time.

As was quite correctly observed by the court a quo, the Mambara award operates to alter the earlier findings of the Mugumisi award, as confirmed by the Labour Court, that the appellants had not been unfairly dismissed.

The attendant implication of permanent employment status results in lack of certainty and the potential creation of other unnecessary claims.

In the event, I take the view that the two critical errors in the operative part of the order delivered in the impugned award are so fundamental to its validity that they cannot be disregarded and swept away as mere technicalities or typographical errors.

This conclusion effectively entails the dismissal of the remaining three grounds of appeal.

SC52-15 : TRIANGLE LIMITED vs VUSIMUSU SIGAUKE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

Even assuming that Mr G Boothway's presiding over the hearing was irregular; that, in itself, was insufficient ground for setting aside the proceedings.Labour matters are not to be decided on technicalities. See Dalny Mine v Banda 1999 (1) ZLR 220 (SC).The court had ...

SC53-16 : PG INDUSTRIES (ZIMBABWE) LIMITED vs MARK BVEKERWA and 34 OTHERS
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

In terms of section 25(2) of the Supreme Court Act [Chapter 7:13], this court is imbued with powers to set aside proceedings that are irregular - even if those proceedings are not the subject of an appeal or application before the court.I am fortified in this view by the remarks ...

SC30-15 : DUNMORE MUPANDASEKWA vs GREEN MOTOR SERVICES (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

In any case, numerous authorities in this jurisdiction and beyond effectively caution against treating disciplinary proceedings at the work place, as if they were court proceedings….,.GEO QUINOT's 'Administrative Law: Cases and Materials' Second Edition…, expressed the following remarks;“While it is true that the duty to act fairly and listen to ...

In any case, numerous authorities in this jurisdiction and beyond effectively caution against treating disciplinary proceedings at the work place, as if they were court proceedings….,.

GEO QUINOT's 'Administrative Law: Cases and Materials' Second Edition…, expressed the following remarks;

“While it is true that the duty to act fairly and listen to both sides lies upon everyone who decides anything, one should be careful not to treat administrative tribunals as though they were courts of law…,. The test in matters of this nature is whether the hearings were fair when proceedings are judged in their broad perspective.

We should not lose sight of the fact that one is here dealing with disciplinary hearings presided over by largely laymen. Therefore, they cannot be expected to observe all the finer niceties that would have been observed by a court of law. It appears that every effort was made to give the first applicant a fair opportunity to be heard before an impartial tribunal…,.”

Analysis of the judgment in the case of Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others 2000 (4) SA 621 (C).

See also Anglo American Farms t\a Boschendal Restaurant vs Konjwayo 1992 13 ILJ 573…,.

These resonate with some remarks made by this Court, in particular the following comments made by the learned judge in the case of Dalny Mine v Banda 1999 (1) ZLR 220 SC…,.;

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right.”

Further to this, I find, on a proper consideration of the minutes of proceedings before the disciplinary authority, that every effort was made in casu to minimize, if not eliminate altogether, any perception of the appellant not having been accorded a fair trial.

Albeit, chaired by a person whose position had been 'compromised', to use the appellant's terminology, it is evident from the record of proceedings that full proceedings were held. The appellant was asked to call his own witness but declined to do so. During the hearing, the appellant does not appear to have been in any way restrained in expressing himself on any issue he felt had to be addressed. The record shows that he interjected whenever he felt he had something to say to challenge the actions or non-action of the appellant's witness, to explain why he had done what he was charged with and even to advance some argument in mitigation. He also argued his case through the answers that he gave to any questions asked, the questions that he himself put as well as un-invited comments that he made on the correctness or otherwise of the arbitrator's determination of the merits of the case and the court a quo's upholding of the same.

In relation to the alleged failure by the appellant to cross examine the respondents' witness who was officially the complainant, I find there is substance in the following submissions made on behalf of the respondent;

“The minutes of the hearing do not show that the appellant was denied the right to cross examine witnesses. They actually show he was belligerent and rude to the hearing authority as well as the Managing Director who was the complainant…,.”

The minutes also show that the appellant did question the complainant, for example about why he had not acted sooner than he did, to take corrective action related to the charges he was facing. The respondent also contends, correctly, that the appellant never asked to cross-examine the complainant beyond his 'rude interjections.' He also did not indicate what other questions he may have wanted to put to the complainant nor how his failure to do so caused him to suffer any prejudice, if any.

I find that, in the spirit of the commonly accepted principle 'substance matters more than form' that the totality of the disciplinary proceedings shows clearly that the applicant adequately argued his case.

In addition to having done so, the appellant did not deny committing the offence in question, nor did he challenge the finding of guilt made by the arbitrator, and confirmed by the court a quo. The ground of appeal that touched on the issue of guilt is one of those that he has abandoned.

In light of this, I find there is merit in the following averments made on behalf of the respondent;

“Any procedural irregularities in the matter could not outweigh appellant's guilt, and it would be a travesty of justice for appellant to be reinstated simply on the basis of procedural irregularity.”

This position finds support in the comments made by CHIDYAUSIKU CJ in Air Zimbabwe (Pvt) Ltd v Chiku Munensa & Mavis Marweyi SC89-04;

“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent.”

It is also pertinent to note that while the appellant seems to insinuate in his grounds of appeal that the arbitrator's compensatory award to him of arrear salaries and benefits was inadequate, he did not take this matter on appeal, nor did he give any indication that he had rejected the award.

As a result, I find there is no basis for faulting the finding of the court a quo that the appellant failed to demonstrate any actual bias on the part of the Chairperson of the disciplinary hearing to the extent that warranted nullification of the proceedings in question. Equally, I find no fault with the judge's finding that the appellant failed to prove that he suffered any prejudice as a result of the alleged bias.

In all respects therefore, I find that this appeal lacks merit and ought to be dismissed. It is accordingly ordered as follows:

1. The appeal be and is hereby dismissed.

2. The appellant shall pay the costs of suit.

Appealed
CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED
Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

The principle of law is that labour matters ought not to be decided on technicalities. A guilty party ought not to escape the consequences of his or her actions owing to procedural technicalities. See Air Zimbabwe (Pvt) Ltd v Mnensa and Anor SC89-04.

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

This is an appeal against a judgment of the Labour Court wherein the decision to dismiss the appellant from employment that had been made by the appellant's Managing Director was set aside whilst an earlier decision by the disciplinary committee, that the respondent be issued with a second written warning, was confirmed.

The facts of the matter may be summarized as follows;

The respondent was employed as a Creditor's Clerk by the appellant. He was charged with a number of acts of misconduct. He denied all the charges. A hearing was conducted by the disciplinary committee. On 30 January 2014, the Human Resources Manager communicated the disciplinary committee's decision to the respondent in the following terms:

“RE: DETERMINATION ON HEARING

Reference is hereby made to the internal disciplinary hearing finalized on 29 January 2014 in respect (of) cases in terms of SI67 of 2012 Annexure 2 Action Code:

(i) Offence number 2; 2.2 – Gross incompetence or inefficiency in performance of work.

(ii) Offence number 2; 2.3.1 - Gross negligence.

(iii) Offence number 3; 3.7 – Insubordination.

(iv) Offence number 3; 3.14 - Wilful disobedience of a lawful order given by the employer.

After deliberations, the hearing committee passed the following verdict:

(a) Presentation of case was not properly done.

(b) You need to change your attitude towards your job and to put more effort in your job.

(c) You shall report for duty to your normal duties with effective (sic) 1 February 2014.

In light of the above, the hearing committee then agreed that you be given a second written warning which will last for the period of 3 months.

If you are aggrieved with this decision, you have the right to appeal in terms of S.I.67 of 2012 appeal procedure.”

The complainant in the disciplinary hearing appealed to the Managing Director against the Disciplinary Committee's decision. There was no appeal by the respondent.

On 10 February 2014, the Managing Director wrote to the complainant in the following terms:

“Attention: COMPLAINANT
PIONEER TRANSPORT

Re: APPEAL AGAINST DECISION IN DOUGLAS MAFIKENI HEARING

I refer to your letter addressed to me dated 3 February appealing against the decision of the Disciplinary Committee in the hearing of Douglas Mafikeni passed on 29 January 2014.

I have read through the minutes of the hearing and looked at the deliberations made, and have come to the conclusion, that, the disciplinary committee made an error in coming up with the determination.

It is very clear that Douglas Mafikeni (sic) failed to meet set deadlines and submitted creditor's listing (sic) that was grossly incorrect showing a very high level of incompetence. Despite him having been given a written warning three months earlier he still failed to improve performance in executing his duties.

Matters of discipline are determined on a balance of probability, and, as such, all these factors of failure to meet deadlines, production of incorrect creditors listing even after having been given an extension. (sic)

THEREFORE, in light of the above, I hereby overturn the determination by the Disciplinary Committee, and the respondent is found guilty of the charges and the penalty is dismissal. The respondent (sic) should be dismissed effective 12 February.”…,.

On 12 February 2014, a letter was written by the Human Resources Manager to the respondent. It reads:

“This letter serves to inform you, that, following a disciplinary committee hearing that was concluded on 29 January 2014, where the disciplinary committee made a decision to give you a second warning, an appeal was made by the complainant against that decision in terms of Part E section E1.1 of the SI67 of 2012. (sic)

A decision was made by the office, made from the office (sic) of the Managing Director, as defined in Part A4 (definitions) of the Sixth Schedule, overturning the decision of the disciplinary committee.

The decision to overturn the disciplinary committee ruling was based on the fact that you failed to meet set deadlines, you also presented a creditors listing that was grossly incorrect showing a very high level of incompetence.

It is against this background that you were found guilty in terms of SI67 of 2012 Annexure 2 sections 2.2, for gross incompetence, section 2.3.1, section 3.7 and section 3.14.

You are therefore being dismissed from Pioneer Transport with effect from 12 February 2014 and you are further advised that you have the right to appeal to the Labour Court against this decision in terms of Part E section E.3 of the Sixth Schedule within 21 working days.”

Aggrieved by the decision to dismiss him, the respondent appealed to the court a quo, arguing, inter alia, that the Managing Director had erred in considering an earlier written warning which had, in any event, expired. The appellant's contention, on the other hand, was that the earlier written warning was relevant and was therefore properly taken into consideration.

The court a quo approached the matter as one in which it needed to examine whether the appellant, as the employer, had exercised its discretion judiciously in light of section 12B(4) of the Labour Act, on the basis that it could only interfere with such discretion if it was not so exercised.

The court a quo found, that, the earlier written warning had expired, and that, therefore, the Managing Director had misdirected himself in giving any consideration to it. On that basis, the court then interfered with the appellant's decision and set aside the dismissal imposed by the appellant's Managing Director but confirmed the disciplinary committee's decision that a written warning be issued.

It may be noted at this juncture, that, the respondent averred that the first written warning is non-existent as the appellant failed to produce a copy of it in the disciplinary hearing and to the court a quo.

The appellant has not shed any light on this issue.

The appellant has now appealed to this court against the court a quo's decision on the following grounds:

(i) The court a quo grossly erred at law in interfering with the penalty of dismissal for a misconduct that goes to the root of the contract;

(ii) The court a quo erred at law in making a finding, that, an expired warning cannot be treated as a record of employment service when imposing penalty contrary to the provisions of section 12B(4) of the Labour Act [28:01] which makes it mandatory to consider such;

(iii) The court a quo misdirected itself, factually, which misdirection amounts to a point of law, in that it made a finding that the decision of the Appeals Officer to impose a penalty of dismissal was solely hinged on the issue of a previous warning which was not the case as the Appeals Officer also considered other factors like the gravity of the offence, inter alia.

The appellant's prayer (as amended) is for an order that the appeal is allowed and that the decision of the court a quo be set aside and substituted with the following:

“That the appeal be and is hereby dismissed with costs.”

The last paragraph of the letter dated 30 January 2014, to the respondent, informing him of the decision of the disciplinary committee, pointed him to S.I.67 of 2012 with regard to his right to appeal should he be aggrieved.

He did not appeal.

As already pointed out earlier, an appeal was noted by the appellant's representative who was the complainant in the Disciplinary Committee hearing.

SI67 of 2012 is the “Collective Bargaining Agreement: Transport Operating Industry.”

It incorporates, in the Sixth Schedule thereof, the Code of Conduct applicable to the entire transport operating industry. Part E, in terms of which the complainant appealed to the Managing Director, provides as follows:

“E. APPEALS AND REVIEW OF MATTERS

A party which may be aggrieved by the decision of the Disciplinary Committee, as per D.1 above, may, within 5 days –

E.1 Appeal to the Chief Executive.

E.1.1 Appeals to the Chief Executive where the issue involves dismissal or any form of termination of employment shall be in writing, and shall state the grounds of appeal.”

By stating that “a party which may be aggrieved…, may appeal” the section gives the right to appeal against the decision of the disciplinary committee to any party - including an employer who may be aggrieved by the committee's decision.

Thus, whilst it is generally undesirable for an employer to appeal against decisions that are usually viewed as decisions of its own internal disciplinary bodies; in casu, the applicable law, that is to say, the Statutory Instrument, allows, in clear terms, for an appeal against the decision of the disciplinary committee by a “party which may be aggrieved.”

Accordingly, the employer, being an aggrieved party, acted within its statutory rights in appealing against the decision of the disciplinary committee.

The respondent's averments that he was not served with a copy of the said appeal and that he was not invited to make any submissions in relation thereto were not challenged.

In addition, note is also taken that the letter that triggered the complainant's appeal to the Managing Director is not part of the record. The appellant's legal practitioner was unable to shed any light regarding the non-availability of the letter on the record.

A fundamental rule of natural justice was broken when the Managing Director made the decision that he did without hearing the respondent.

As the respondent was not served with a copy of the appeal letter, only the appellant and its Managing Director are privy to the details of the appeal.

The proceedings before the Managing Director fell foul of the axiomatic requirement of the rules of fair play in the delivery of justice.

A decision that affects the respondent was made without him being heard by the maker of the decision.

In Musarira v Anglo American Corporation 2005 (2) ZLR 267 (S) the following was said:

“I would point out here, that, as long as a charge of misconduct is preferred by an employer against an employee, there is always a certain element of institutional bias, as the employer is the offended party. However, this happens to be the situation in all misconduct cases. What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed.

The rules of natural justice, in such a case, are that the party concerned –

(a) Must be given adequate notice;

(b) Must be heard or be able to present his/her side of the story; and

(c) Should be allowed to call witnesses if he/she so wishes.

See Dabner v SA Railways and Harbours 1920 AD 588 at 598.”

In casu, the respondent was not heard in the appeal before the Managing Director. By reason thereof, the said appeal proceedings must be set aside.

So axiomatic is the audi alteram partem rule, that it would be unconscionable for this or any court to uphold proceedings wherein the rule was not complied with.

The proceedings before the Managing director are a nullity.

The Labour Court did set aside the Managing Director's decision - but for different reasons.

It decided the matter on the merits, and, in doing so, it erred.

The proceedings before the Managing Director having been a nullity, the appropriate course would have been for the court a quo to remit the matter to the Managing Director for a hearing that accords with the rules of natural justice.

In the circumstances, the decision of the Managing Director ought to be set aside.

It would, however, be undesirable to have the matter remitted to him for a rehearing. This is so because the fact that the Managing Director was prepared to and did determine the matter without hearing the respondent might justifiably create an impression of partiality on his part.

Justice must be seen to be done.

For these reasons, in the interests of justice, instead of having the court a quo remitting the matter to the Managing Director, this court will order that the Labour Court re-hear the appeal instead and ensure that the rules of natural justice are complied with.

Section 89(2)(a)(i) of the Labour Act empowers and enables the Labour Court to conduct such a hearing.

Labour matters ought not be dealt with and finalized on technicalities.

The rehearing of the matter by the Labour Court will ensure that this does not happen. This is so because if such a re-hearing is not ordered, especially after the nullification of the proceedings before the Managing Director, then, the merits of the matter would remain eternally undetermined, to the prejudice of one party or the other.

Section 89(2) of the Labour Act reads:

“(2)(a) In the exercise of its functions, the Labour Court may: in the case of an appeal –

(i) Conduct a hearing into the matter or decide it on the record; or

(ii) Confirm, vary, reverse or set aside the decision, order or action that is appealed against, or substitute its own decision or order; or

(iii)…,. (repealed); or

…,. (repealed).”

In Dalny Mine v Banda 1999 (1) ZLR 220 (S) McNALLY JA stated at 221B-C:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right. This can be done in one of two ways:

(i) By remitting the matter for hearing de novo and in a procedurally correct manner;

(ii) By the tribunal hearing the evidence de novo.”

He continued at 222B:

“The point I am making is that when the Tribunal decides, as it did in this case, to exercise its powers under section 97(4)(a) of the Act, and to 'proceed with the appeal by way of a hearing' then it is starting afresh, as it were, on a clean page. The errors of the past are no longer relevant.”

He continued further at 222D:

“It does not seem to me, with respect, to be a compliance with section 4(1) if the Tribunal, for technical reasons, compels an employer to reinstate (or pay damages to) a person who has been clearly shown to have committed a dismissible offence.”

The applicable statute in Dalny Mine v Banda 1999 (1) ZLR 220 (S) was the Labour Relations Act. Section 97(4)(a) of that Act is similar to section 89(2)(a) of the Labour Act which is the applicable statute in casu.

Section 97(4)(a) of the Labour Relations Act [Chapter 28:01] (Act No.16 of 1985 as amended by Act No.20 of 1994) reads:

“Upon receiving notice of an appeal, the Tribunal may –

(a) Proceed with the appeal by way of a hearing; or

(b) Decide the appeal on the record; or

(c) Remit the matter to the senior labour relations officer concerned for further investigation, and, upon the conclusion of such investigation, proceed with the appeal by way of a hearing or decide the appeal on the record.”

The similarity in the wording of the relevant portions of the two sections (89(2) and 97(4)(a)) of the current and repealed statutes respectively) justifies the applicability of the reasoning as cited above from Dalny Mine v Banda 1999 (1) ZLR 220 (S) to the instant case.

In the result, the appeal succeeds for reasons different to those raised in the grounds of appeal, and, consequently, with a result different to that in the appellant's prayer.

Accordingly, the following order is made:

1. The appeal is allowed.

2. The judgment of the Labour Court be and is hereby set aside.

3. The matter is remitted to the Labour Court for a rehearing of the appeal before a different judge of that court.

4. Each party shall bear its own costs.

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.BACKGROUNDAlthough the facts of this matter are mainly common cause, it is necessary to set them out ...

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.

BACKGROUND

Although the facts of this matter are mainly common cause, it is necessary to set them out in some detail in order to determine whether the court a quo exercised its discretion judicially.

The appellant was employed by the respondent as a Creditor's Clerk. He was charged under the relevant Code of Conduct with the offence of “any conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract of employment and willful disobedience to a lawful order.”

It was alleged, that, the appellant failed to comply with written and verbal instructions given to him on 24 May 2001 regarding the checking of daily banking.

Following a disciplinary hearing, he was found guilty and dismissed on 15 August 2002.

He appealed against the decision to the internal Appeals Committee which upheld the decision of the disciplinary hearing on 4 September 2002.

About five months later, the appellant alleged, that, he filed a notice of appeal with the Labour Relations Tribunal Court on 26 February 2003. The respondent asserted, that, they were not served with the notice of appeal and there is no proof in the record that they were served.

The matter was never prosecuted.

The appellant states, in his founding affidavit, that, he made several inquiries with his legal practitioners about the appeal but did not get a satisfactory response. On 5 July 2006, he retrieved his file from his erstwhile legal practitioners and instructed new counsel. His new legal practitioners wrote a letter to the Registrar of the Labour Tribunal enquiring about the appeal. As they did not have a reference number, they did not receive a response.

Through his new counsel, the appellant then filed a chamber application for condonation of late noting of appeal and extension of time at the Labour Court in November of 2006.

This application, for some unknown reason, was only served upon the respondent in October 2012.

Perturbed by his new lawyers seeming ineptitude, the appellant wrote a letter of complaint to the Secretary of the Law Society of Zimbabwe in October of 2010 complaining against the legal practitioners. His legal practitioners then renounced agency.

He then enlisted the services of another lawyer.

Following the application for condonation made in 2006, the appellant then filed heads of argument in December of 2012.

The Labour Court dismissed the application for condonation of late noting of appeal and extension of time on 12 March 2013.

After a further five months, on 26 August 2013, the appellant filed for condonation for late filing of an application for leave to appeal to the Supreme Court.

This application was dismissed by the court a quo. He subsequently filed another application for leave to appeal which was eventually granted.

The appellant then filed his appeal with the Supreme Court on 19 November 2014.

The appellant has appealed to this court on four grounds which he set out as follows:

“1. The Court a quo misdirected itself by dismissing an application on the basis of the extent of delays occasioned to the appellant by members of this honorable court and their resultant failure to proffer reasonable explanation for the professional ineptitude.

2. The court a quo erred in failing to place importance of the case to the public at large which protection should only be seen to be given by this honorable court exclusively as one of the main purposes of the act.

3. The court a quo misdirected itself by upholding the need to put finality to litigation at the expense of justice thereby ignoring the record that clearly showed seriousness of purpose displayed by the now self-acting appellant throughout his case as a court of equality.

4. The court a quo erred by conditioning the glaring misrepresentation by a legal practitioner who forged appellants signature of an affidavit after inheriting the case from another lawyer who had also inadvertently and unjustifiably delayed to note an appeal as required by the hallowed rules of the Labour Court as provided for in Statutory Instrument SI59 of 2006.”

As can be seen from the grounds of appeal, the appellant is dissatisfied with the manner in which the court a quo dealt with his application for condonation of the late noting of an appeal.

It is therefore necessary to ascertain whether the court a quo complied with the requirements of the law in respect to such applications.

REQUIREMENTS FOR AN APPLICATION FOR CONDONATION

In the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (S), GUBBAY CJ sets out factors to be considered in such an application. These are as follows:

(a) That the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That there is a reasonable explanation for the delay;

(c) That the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.

See also Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co (Pvt) Ltd & Anor HH667-15.

The appellant explains the delay by giving a series of unfortunate interactions with inefficient lawyers.

KORSAH JA, in Kombayi v Berkout 1988 (1) ZLR 53 (SC), stated thus:

“The broad principles the Court will follow in determining whether to condone the late noting of an appeal are:

(i) The extent of the delay;

(ii) The reasonableness of the explanation for the delay; and

(iii) The prospects of success.

If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”

In casu, even if the court were to disregard the time the appellant spent changing lawyers, the appellant disregarded the restriction of time placed by the Labour Court Rules.

Rule 15(1) of the Labour Court Rules provides for 21 days to note an appeal once one has received the decision.

The period between the granting of the judgment in 2002 and noting of the appeal, after instructing the first lawyer in February of 2003, is well beyond the 21-day limit.

No justifiable excuse has been proffered by the appellant as to why it took him so long to file the appeal.

The application for condonation was made on 12 November 2006, but only served on the respondents in 2012. They quickly opposed the application, but, the Heads of Argument were only filed on 27 December 2012.

From the papers before me, no explanation was made for this delay.

The court a quo cannot be faulted for finding that the delay was caused by the appellant's own dilatoriness.

In the case of H. J. Vorster (Private) Limited v Save Valley Conservancy SC20-14 this court concluded that:

“…, there was no merit in the application for condonation because the applicant's predicament was due to its own dilatoriness. Having so found, the court proceeded to dismiss both applications with costs on the legal practitioner and client scale.”

With regard to the appellant's allegation that it was the incompetence of his erstwhile legal practitioner that led to the excessive delays, the court a quo, correctly in my view, held, that, even where this is the case one cannot seek to insulate himself using such a defence.

A litigant will not be completely absolved for the incompetence of his or her legal practitioner.

This principle was set out in the case of Kombayi v Berkout 1988 (1) ZLR 53 (SC)…, where KORSAH JA quoted with approval the case of Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135 (A)…, where it was stated that:

“There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of the Court. Considerations ad misericordium should not be allowed to become an invitation to laxity.”…,.

It should also be noted, that, in the case of Ganda v First Mutual Life Assurance Society SC01-05 the court was at pains to explain that it is not enough for one seeking condonation to simply explain the delay of the failure to observe the Rules in the main appeal - but one needs to do so also with the delay in the seeking of the condonation.

“In addition, it is pertinent to note, that, it has been stated in a number of cases that a person seeking condonation of the late noting of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation.

Thus, in Saloojee and Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138H STEYN CJ said:

'What calls for some acceptable explanation is not only the delay in noting an appeal and in lodging the record timeously, but also the delay in seeking condonation.

As indicated, inter alia, in Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at p449, and in Meintjies case supra [Meintjies v H.D. Combrinck (Edms) Bpk 1961 (1) SA 262 (A)] at p264, an appellant should, whenever he realizes that he has not complied with a Rule of Court, apply for condonation without delay.'”

In the case of Musiyarira v Rufaro Marketing SC96-05 this court highlighted that it will be slow to interfere with a court a quo's decision on condonation as it involves the exercise of discretion.

“Condonation of the late noting of an appeal and granting an extension of time within which an appeal is to be noted are matters within the discretion of the court of first instance. Unless it has been shown that the learned President of the Labour Court misdirected herself in dismissing the application, this Court will not interfere with the exercise of that discretion.

The delay was indeed inordinate. The explanation given for the delay was correctly found unacceptable. There is nothing to gainsay the finding by the court a quo that there were no prospects of success on appeal.”…,.

The law is clear that there must be finality to litigation.

McNALLY JA spoke on this in Ndebele v Ncube 1992 (1) ZLR 288 (S)…, when he said the following:

“It is the policy of the law that there should be finality in litigation.

On the other hand, one does not want to do injustice to litigants.

But, it must be observed, that, in recent years, applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute.

The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt- roughly translated, the law will help the vigilant but not the sluggard.”…,.

The appellant attempts to rely on Dalny Mine v Musa Banda 1999 (1) ZLR 220 (S)…, where the court stated, that, deciding labour matters on technicalities is not desirable.

However, if one examines the quote in full from this case, McNALLY JA stated as follows:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right….,.

I would think it often superfluous for the Tribunal to hear evidence relating to the irregularities.

I say 'often' because there may be cases in which this is not so.

It may be that the existence of irregularities will affect the date from which the termination of employment takes effect. It may sometimes take effect from the date on which the irregularity is cured.”…,.

As can be observed, his remarks are not a blanket cover for all technical defects.

It was highlighted that there are circumstances where a decision on technicalities could be warranted, and, in my view, this case is one such example.

The appellant's lack of diligence was of such gross magnitude that it ceased to be a mere technicality that can be cured.

With regards to the prospects of success, the appellant has not shown that he has any prospects of success on appeal.

His complaint was merely that the case had never been heard on the merits.

This is not sufficient.

He must allege facts, which, if proved, would show that he had prospects of success.

To grant condonation in respect of an appeal with little to no prospects of success only serves to clog the judicial system.

In casu, the merits of the appeal cannot even be ascertained as they were never explored in a trial court.

From its inception, this matter has been a series of applications for condonation and cries for mercy. The appellant alleges, that, this amounts to denying him a right to be heard for procedural technicalities.

However, it is clear, that, in the twelve years the matter has lingered in the justice system, if the appellant had been diligent, he would have had his day in court.

In my view, the appellant has failed to establish any justification for the delay which necessitated repeated requests for condonation. Further, the appellant has failed to demonstrate any prospects of success if condonation were granted and the appeal were to be heard. Finally, the potential prejudice to the other party is totally unacceptable. Not only has the respondent been put out of pocket in defending the multitude of applications but the matter has not, to date, been finalized.

Finally, the appellant does not allege that the court a quo failed to exercise its discretion properly.

As was stated in H.J. Vorster (Private) Limited v Save Valley Conservancy SC20-14 by PATEL JA:

“As for the judgment appealed against, we are unable to find any fault or impropriety in the exercise of the court's discretion. Indeed, counsel for the appellant was unable to identify any misdirection by the court a quo in the exercise of its discretion to dismiss the applications for condonation and rescission of default judgment.”

DISPOSITION

There must be finality to litigation.

Twelve years is a remarkably long time before a matter is finalized by any standard. As such, the court a quo cannot be faulted in dismissing the application.

Accordingly, I make the following order:

1. The appeal is hereby dismissed.

2. The appellant shall pay the respondent's costs of suit.

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

The court a quo also relied on Air Zimbabwe v Chiku Mensa Anor SC89-10 as an authority supporting its decision to uphold the outcome of the disciplinary proceedings.It was stated in that case, that, a person guilty of misconduct should escape the consequences of his misdeeds because he ...

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.The decision of the court a quo had dismissed the ...

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.

The decision of the court a quo had dismissed the applicant's appeal against the judgment of the High Court in Case No. HC2302/20.

The Background

The applicant is a former judge of the Supreme Court. He has cited seven respondents in all. The first respondent is the Judicial Service Commission. The second, third, and fourth respondents (Simbi Veke Mubako, Rekayi Maposa and Takawira Nzombe) were the members of a Tribunal that was established to inquire into the question of the applicant's removal from judicial office. The fifth respondent (Virginia Mabhiza) was the Secretary of that Tribunal. The sixth respondent is the President of Zimbabwe, while the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

Both the sixth and seventh respondents are cited in their official capacities.

On 3 March 2020, the applicant was suspended from judicial office following the appointment of the aforementioned Tribunal by the sixth respondent (hereinafter “the President”). The Tribunal was established to consider the applicant's suitability to hold the office of a judge. The suspension was pursuant to a resolution by the first respondent (hereinafter “the JSC”) made on 13 December 2019 to refer the question of his removal from office to the President.

The applicant was dissatisfied with the manner in which his case had been referred to the President.

Consequently, on 13 May 2020, he filed an application in terms of section 4 of the Administrative Justice Act [Chapter 10:28] alleging, that, the Judicial Service Commission (JSC) had failed to comply with section 3(1)(a) of the Administrative Justice Act by failing to act lawfully, reasonably, and in a fair manner when it gave advice to the President, in terms of section 187(3) of the Constitution.

The High Court dismissed the application before it with costs in favour of the Judicial Service Commission (JSC). The court found that the question of the applicant's alleged gross misconduct was a matter for the Tribunal to determine.

On appeal to the Supreme Court, the applicant raised five grounds of appeal, which are largely replicated in the intended grounds of appeal to this Court in the event that the instant application for leave to appeal is granted.

The Supreme Court upheld the finding of the High Court, that, the deponent to the Judicial Service Commission's opposing affidavit was lawfully authorised to do so. The court a quo also upheld the finding of the High Court, that, the applicant had failed to prove that the JSC was inquorate and functus officio at its meeting held on 13 December 2019. Lastly, the court held, that, the applicant's right to be heard had not been violated.

In the event, the court dismissed the applicant's appeal with no order as to costs.

The intended appeal before this Court is predicated on the assertion, that, the court a quo erred by avoiding an in-depth determination of various constitutional issues before it, despite having been alive to those issues.

The applicant accordingly asserts, that, the question of whether or not there was a constitutional matter before the court a quo must be answered in the affirmative. He further avers that the intended appeal to this Court does enjoy prospects of success.

The intended grounds of appeal

As paraphrased, the intended five grounds of appeal asseverate that the court a quo erred and thereby misdirected itself in the following respects:

(i) In determining that the appeal was moot when the challenge to the referral by the Judicial Service Commission (JSC), under section 187(3) of the Constitution, was that it was unconstitutional.

(ii) In not finding, that, any person who was not a member of the Judicial Service Commission (JSC) was prohibited from representing it in any application pursuant to section 187(3), and, consequently, in not finding that the JSC was not properly before the High Court.

(iii) In not finding that section 344 of the Constitution places the onus to prove that it had a quorum on the Judicial Service Commission (JSC) and not on the appellant.

(iv) In not finding that section 187(3) of the Constitution requires the Judicial Service Commission (JSC) to grant a judge the full scope of the audi alteram partem rule before sending its advice to the President.

(v) In not finding that the Judicial Service Commission (JSC) is required to determine the existence or otherwise of the jurisdictional facts under section 187(3) before sending its advice to the President.

The applicant avers that the foregoing grounds of appeal enjoy prospects of success for a number of reasons:

(i) As regards the first ground, he contends, that, mootness does not arise when a thing is void for being unconstitutional.

(ii) On the second ground, he states, that, the Constitution does not permit the Judicial Service Commission (JSC) to delegate to its Secretary the critically important duty of defending in court its advice to the President under section 187(3) of the Constitution.

(iii) With respect to the third ground, he argues, that, section 344 of the Constitution would be undermined if a constitutional body is not obliged to prove that it had a quorum and that the independence of the judiciary would be threatened by the possibility of an inquorate Judicial Service Commission (JSC) proceeding in terms of section 187(3) of the Constitution.

In relation to the fourth and fifth grounds, he avers, that, a rigorous process preceding the tendering of advice in terms of section 187(3) of the Constitution requires the full scope of the audi alteram partem rule and a finding by the Judicial Service Commission (JSC) on the existence of the jurisdictional facts contemplated in section 187(1) of the Constitution.

(iv) Lastly, the applicant asserts, that, the intended appeal is of public importance because it is central to the independence of the judiciary. He contends, that, the position of this Court on the issues raised will clarify the law and protect the Constitution.

In the premises, he prays for an order for leave to appeal to be granted.

The Judicial Service Commission (JSC), through an affidavit deposed to by its Secretary, firmly opposes the instant application.

It denies that there are any constitutional issues or matters to be decided as contemplated by Rule 32(2) of the Rules. It also asserts, that, the issues that were before the court a quo were resolved on non-constitutional bases. It further disputes the argument, that, it is in the public interest to grant leave to appeal. It is contended that the application does not satisfy the requirements for leave to appeal under Rule 32 of the Constitutional Court Rules.

The sixth and seventh respondents (President of Zimbabwe and the Minister of Justice, Legal and Parliamentary Affairs) also oppose the application through an affidavit deposed to by the seventh respondent.

In essence, it is averred, that, the court a quo did not decide any constitutional matter. Consequently, it is argued that the applicant has failed to show that his application has any prospects of success.

Both respondents pray that the application be dismissed with costs.

Applications for Leave to Appeal

Applications for leave to appeal to this Court are governed by Rule 32 of the Constitutional Court Rules. The requirements to be satisfied by an applicant seeking leave to appeal are now firmly established in the jurisprudence of the Court. They are as follows:

(i) The constitutional matter raised in the decision to be appealed against, and any other connected issues, must be clearly and concisely set out.

(ii) The applicant must intend to apply for leave to appeal against the decision of the subordinate court on a constitutional matter.

(iii) The applicant must demonstrate prospects of success on appeal.

(iv) The intended appeal must be in the interests of justice which are a paramount consideration.

See Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,.; Muza M v Saruchera N.O. & Ors CC05-19; Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor CC06-19; Ismail v St. Johns College & Ors CC19-19; TBIC Investments (Pvt) Ltd v Mangenje & Ors CC15-20; Rita Mbatha v National Foods CC06-21; Gift Konjana v Dexter Nduna CC09-21.

I shall address each of the above requirements ad seriatim in their application to the facts and circumstances of the present matter.

Clear and concise exposition of constitutional matter

The application in casu, at its outset, relates to the requirements of Rule 32(3)(c) of the Constitutional Court Rules and proceeds to set out “the constitutional matters raised in the decision sought to be appealed against.”

These matters tally with the five grounds of appeal delineated in the draft notice of appeal. They are further elaborated in the applicant's founding affidavit.

There can be no doubt, and this appears to be common cause, that the applicant has satisfied and complied with the requirements of Rule 32(3)(c) of the Constitutional Court Rules.

Decision appealed against on constitutional matter

The more difficult question that arises herein is whether or not the decisions of the High Court and the Supreme Court, being the decisions impugned in casu, bear upon any constitutional issue or matter.

Counsel for the applicant answers that question in the affirmative.

He submits, that, the relevant constitutional matters were raised, both in the High Court and before the Supreme Court. In support of his position, he refers to several passages in the applicant's founding affidavit before the High Court and in his heads of argument before both of the subordinate courts.

Counsel for the applicant further submits, that, the fact that the Supreme Court wrote its judgment without reference to these points is irrelevant.

He nevertheless accepts, that, the mere reference to a constitutional point, whether in the pleadings or in the judgment to be appealed against, is not sufficient to satisfy the requisite test.

He is absolutely correct in that respect: see Moyo v Sgt. Chacha & Ors CC19-17; Chani v Mwayera J & Ors CC02-20.

He also contends, much less persuasively so in my view, that a constitutional matter does not cease to be so simply because there is no reference to the Constitution itself.

It is necessary to pinpoint the relevant references adverted to by counsel.

In the founding affidavit in Case No. HC2302-20 at paragraph 12, the applicant avers, that, the President can only act under section 187(3) of the Constitution, if the advice given to him is lawful in compliance with section 3(1)(a) of the Administrative Justice Act. At paragraphs 55 and 56, the applicant asserts that no jurisdictional circumstances exist that would have entitled the Judicial Service Commission (JSC) to refer the matter to the President.

In particular, he avers that the JSC does not appear to have addressed its mind at all to the grounds for removal from judicial office prescribed by section 187(1) of the Constitution. He then argues, that, if the decision to refer the matter to the President was premised on facts incapable of sustaining any of the three grounds for the removal of a judge “such a decision was grossly unreasonable and irrational.”

At paragraph 57, the applicant attacks the decision of the Judicial Service Commission (JSC) to revisit his case on the basis of new allegations without having been availed an opportunity to consider and respond to those allegations. This was in violation of the audi alteram partem rule and “the dictates of natural justice.”

At paragraphs 63, 65 and 66, the applicant avers that the JSC was both inquorate and improperly constituted when it took the decision to refer his matter to the President and the subsequent decision to suspend him.

These decisions were made outside its constitutive instruments, in particular section 189 of the Constitution, and, therefore “liable to be set aside as being unlawful and grossly irregular.”

At paragraph 68, the applicant assails the failure of the Judicial Service Commission (JSC) to place before the High Court a record of its minutes and deliberations, in keeping with its mandate under section 191 of the Constitution to conduct its business in “a just, fair, and transparent manner.”

At paragraph 70, the applicant observes that the office of a judge is sacrosanct; and, at paragraph 77, he affirms the need for the JSC to protect its judges from unmeritorious attacks on their dignity and standing.

He then concludes that the JSC's advice to the President “was contrary to section 3(1)(a) of [the Administrative Justice Act] and thus null and void”. Accordingly “the subsequent acts of [the President are a nullity and must be set aside.”

Turning to the applicant's heads of argument in the High Court, paragraphs 2 to 4 address the point, that, the Judicial Service Commission (JSC) cannot delegate its constitutional duties, in particular, the defence of its conduct under section 187(3) of the Constitution, to its Secretary or Acting Secretary. The same point is addressed at paragraphs 2 to 7 of the applicant's heads of argument before the Supreme Court.

The applicant reiterates the argument that the JSC was not properly before the High Court, as the deponent to its opposing affidavit was prohibited by the Constitution from representing it in an application brought by a judge pursuant to section 187(3) of the Constitution.

At paragraphs 11 to 17, the applicant sets out his attack on the quorum of the Judicial Service Commission (JSC) at the meeting whereat it decided to refer his matter to the President under section 187(3) of the Constitution. Reliance is placed upon section 341(1) and (2) of the Constitution pertaining to the quorum of any constitutional body.

It is argued, that, the decision of the JSC “was unconstitutional, unlawful and null and void” and that, consequently, the onus to prove that it was quorate at the meeting in question shifted to and lay upon the JSC rather than the applicant.

At paragraphs 36 to 43, the applicant canvasses the alleged failure of the High Court to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution warranting the referral of the applicant's case to the President in terms of section 187(3). It is argued, that, the actions of the JSC, under section 187(3) of the Constitution, are “clearly subject to review” and that “what was before the court a quo was a challenge to the prior administrative action of advising [the President] under section 187(3) of the Constitution.”

It is further argued that the failure of the Judicial Service Commission (JSC) to “indicate the ground under section 187(1) that is being “relied on” rendered “the action under section 187(3) unconstitutional, unlawful and null and void.”

Lastly, it is submitted that “section 187(1) requires [the JSC] to first reach the conclusion that there is a prima facie case…, before acting under section 187(3)” and that “to reach the prima facie verdict, [the JSC] must carry out an adjudicative process and set out reasons for its conclusions…, before invoking section 187(3).”

Counsel for the first respondent submits, that, the application before the High Court was clearly premised on the provisions of the Administrative Justice Act. The court was not seized with any specific constitutional challenge. In essence, so it is argued, the applicant did not file any constitutional matter before the High Court or the Supreme Court.

Consequently, the doctrines of subsidiarity and avoidance come into play. Additionally, leave to appeal is a very limited right, and, in the present case, there is no basis for appealing to this Court.

Counsel for the sixth and seventh respondents adopts the same stance.

He submits, that, the applicant did not directly impugn the conduct of the Judicial Service Commission (JSC) on any constitutional ground. He filed what was essentially an Administrative Law matter and he cannot deviate from that position. Furthermore, the applicant attacks the Supreme Court for not making various findings. This shows that there was no proper basis for that court to adjudge any constitutional matter.

It is further argued, that, references to the Constitution before the High Court and the Supreme Court were purely incidental and not directly relied upon. Such references were only ancillary and in support of section 3 of the Administrative Justice Act. Accordingly, both subordinate courts were correct in not dealing with the case as involving any constitutional matter.

In reply, counsel for the applicant argues, that, where a constitutional issue arises in any litigation, the court may deal with it, and, if it does address that issue, then a constitutional appeal must lie against its decision.

Moreover, a point raising a constitutional issue may be taken at any time.

Co-counsel for the applicant submits, that, when one relates to the Administrative Justice Act then one is seeking to enforce the Constitution itself.

As regards referrals to the President under section 187(3) of the Constitution, the Judicial Service Commission (JSC) must apply its mind to that process and choose to apply the procedures available under the Judicial Code of Ethics as opposed to a referral to the President in terms of section 187(3) of the Constitution.

Proceedings in the High Court

The application before the High Court, in its heading, declares, categorically and unequivocally, that, it is a court application in terms of section 4 of the Administrative Justice Act.

Again, in paragraphs 5 and 6 of the application, it is asserted that the Judicial Service Commission (JSC), being an administrative authority, failed to act in accordance with section 3(1)(a) of the Administrative Justice Act and that its decision, to refer the matter to the President, was “unlawful, grossly irregular and therefore invalid.”

In similar vein, the founding affidavit in the High Court sets out the nature of the application in paragraph 11 as being made in terms of section 4 of the Administrative Justice Act and on the premise that the JSC did not comply with section 3(1)(a) of the Administrative Justice Act in that it failed “to act lawfully, reasonably, and in a fair manner.”

On the other hand, paragraph 7(5) of the application, relating to the alternative prayer sought, is framed on the basis that Proclamation No.1 of 2020 does not set out the jurisdictional circumstances necessary to found a prima facie case for the dismissal of a judge as envisaged by section 187(3) of the Constitution. This is also mirrored in paragraph 5 of the draft order sought in the High Court.

Additionally, the founding affidavit, in paragraph 56 refers to the failure of the JSC to apply its mind to the grounds for the removal of a judge in terms of section 187(1) of the Constitution.

However, very notably, the conclusion drawn in that regard is that the decision of the Judicial Service Commission (JSC), to refer the matter to the President, was “grossly unreasonable and irrational.”

Turning to the record of proceedings before the High Court, counsel for the applicant, in addressing the propriety of the JSC's opposing affidavit, its allegedly inquorate status, and the absence of jurisdictional circumstances warranting referral of the matter to the President, certainly appears to have relied upon various provisions of the Constitution in order to buttress his arguments.

Nevertheless, it is abundantly clear, that, the judgment of the High Court, and its reasoning in arriving at its conclusions, are not in any way grounded upon any constitutional principle or requirement. On the contrary, the judgment and the reasons therefor are firmly anchored in the relevant provisions of the Administrative Justice Act.

Having regard to the pleadings and proceedings in the High Court, it appears to me, that, the applicant did not raise any specific constitutional issue for determination by that court.

To the extent that he did allude to certain provisions of the Constitution, he did so purely incidentally in order to demonstrate the alleged failure of the Judicial Service Commission (JSC) “to act lawfully, reasonably and in a fair manner” in compliance with section 3(1)(a) of the Administrative Justice Act.

The applicant's cause of action, as expounded throughout the application and his founding affidavit, was essentially predicated on the perceived unlawful, unreasonable, and unprocedural conduct of the JSC, in alleged violation of its duties and obligations as an administrative authority, albeit as a creature of the Constitution.

Constitutional matter in the High Court

In section 332 of the Constitution, a constitutional matter is defined as “a matter in which there is an issue involving the interpretation, protection, or enforcement of the Constitution.”

Accordingly, a constitutional matter arises where there is an issue in dispute raising questions of law, the resolution of which requires the interpretation, protection, or enforcement of the Constitution.

In South Africa, it is settled law that a constitutional matter cannot arise for the first time on appeal when it was not available or in existence in the subordinate court. This rule was stated as follows in Prince v President, Cape Law Society & Ors 2001 (2) SA 388 (CC)…,:

“Parties who challenge the constitutionality of a provision in a statute must raise the constitutionality of the provisions sought to be challenged at the time they institute proceedings. In addition, a party must place before the court information relevant to the determination of the constitutionality of the impugned provisions….,.

I would emphasise that all this information must be placed before the court of first instance….,.

It is not sufficient for a party to raise the constitutionality of a statute only in the heads of argument, without laying a proper foundation for such challenge in the papers or in the pleadings.

The other party must be left in no doubt as to the nature of the case it has to meet and the relief that is sought. Nor can parties hope to supplement and make their case on appeal.”…,.

Similarly, the established practice of this Court is that in order to determine whether or not there was a constitutional matter before the court a quo, the dispute must be traced back to the court of origin, in this case, the High Court: see Ismail v St. Johns College & Ors CC19-19…,.

I shall proceed to consider the relevant issues that arose for determination in the High Court.

The first issue relates to the representation of the Judicial Service Commission (JSC) by its Secretary. The court considered this to be justified on the basis of section 10(2) of the Judicial Service Act [Chapter 7:18], which bestows the Secretary with the competence to represent the JSC.

It is trite that a constitutional matter cannot arise where the impugned conduct is predicated on an unchallenged and valid statute: see Magurure & Ors v Cargo Carriers International Hauliers (Pvt) Ltd CC15-16…,.

In casu, the question of the legality of the JSC's representation by its Secretary was determined on the basis of extant statutory provisions, which provisions must be presumed to be constitutional: see Mujuru v President of Zimbabwe & Ors CC08-18.

Thus, no constitutional matter could arise in respect of conduct based on the Judicial Service Act and the High Court Rules, unless the provisions in question were themselves impugned for being unconstitutional.

Accordingly, in respect of the first issue, there was no constitutional issue involved.

The second issue concerns the quorum of the Judicial Service Commission (JSC) at its meeting of 13 December 2019.

Both the High Court and the Supreme Court dismissed the claim that the JSC was inquorate on the basis of the absence of pertinent evidence.

The questions as to the proof that was required to show that the JSC did not have the requisite quorum and the party upon whom the onus to prove the same rested are undoubtedly questions of evidence.

In casu, there was no allegation by the applicant, based on any provision of the Constitution, to the effect that he was not required to prove that the Judicial Service Commission (JSC) was inquorate at the relevant time.

In the absence of any such averment, no constitutional matter could have arisen regarding the party upon whom the onus rested to prove that the JSC was quorate or inquorate.

The third issue revolves around the applicant's contention that section 187(3) of the Constitution enjoined the Judicial Service Commission (JSC) to accord to him “the full scope of the audi alteram partem rule” before transmitting its advice to the President.

Critically, the applicant's founding affidavit does not state that he based his entitlement to the full scope of the rule on section 187(3) or any other provision of the Constitution.

Once again, in the absence of any such statement, the constitutional basis of the audi alteram partem rule could not have arisen as an issue for determination before the High Court. Rather, the issue seems to have been raised by way of inference from the Administrative Justice Act and the common law.

Thus, it cannot be said that there was a constitutional issue in this regard.

The fourth issue pertains to the question whether or not the Judicial Service Commission (JSC) was required to determine the existence or otherwise of jurisdictional grounds under section 187(1) of the Constitution before forwarding its advice to the President.

Here, too, although the applicant averred that any one of the three jurisdictional facts in section 187(1) of the Constitution had to be established before the question of his removal was referred to the President, he did not base such requirement on the Constitution.

Instead, he took the position, that, the advice given by the Judicial Service Commission (JSC) “should have been reasonable and grounded in logic.”

He added that the JSC never informed him of the accusation against him that warranted a referral of his matter to the President. He therefore concluded that the decision of the JSC “was grossly unreasonable and irrational.”

It is evident that the applicant did not specifically regard the source of the requirement to establish the jurisdictional facts as being section 187(1) or section 187(3) or any other provision of the Constitution.

In as much as his application was premised on the Administrative Justice Act, it is plausible to assume that he considered that Act to be the legal basis of the supposed requirement to establish jurisdictional facts.

Accordingly, no constitutional matter could have arisen in the absence of a properly pleaded basis that the requirement to establish the requisite jurisdictional facts arose from the Constitution.

Having regard to all of the foregoing, I am constrained to conclude that there was no clearly defined constitutional matter before the High Court, and, consequently, on appeal from that court to the Supreme Court. This is so because the applicant's pleadings in the High Court are entirely unsupportive of the constitutional matters that he alleges to have been before the court.

To put it differently, no constitutional matter could have arisen in that court in the absence of pleadings grounding the determination of the alleged constitutional issues.

It therefore follows that the jurisdiction of this Court cannot be activated as section 167(1)(b) of the Constitution stipulates that the Constitutional Court only decides constitutional matters.

As was held in Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,:

“If the subordinate court had no constitutional matter before it to hear and determine, no grounds of appeal can lie to the Constitutional Court, as a litigant cannot allege that the subordinate court misdirected itself in respect of a matter it was never called upon to decide for the purposes of resolution of the dispute between the parties.”…,.

This Court has recently reinforced the position that the right of appeal to the Court is a limited right, strictly confined to an appeal against the decision of a subordinate court on a constitutional matter only: see Rita Mbatha v National Foods CC06-21 …,.

Proceedings in the Supreme Court

Turning to the proceedings in the Supreme Court, the grounds of appeal before that court are tendentiously framed in a manner importing the supposed application of section 187 of the Constitution.

The oblique references to that provision appear to have been inserted to cloak and circumvent the absence of any constitutional determination in the judgment of the High Court.

Be that as it may, the Supreme Court dismissed all the grounds of appeal in their entirety without venturing into the constitutional domain. The court a quo predicated its findings and decision exclusively on the relevant statutory provisions and the applicable principles of the common law. It did not traverse or determine any constitutional question.

In my view, the Supreme Court quite correctly proceeded on that basis given that the impugned decision of the High Court was devoid of any constitutional issue or determination. In short, neither of the subordinate courts can be impeached for any alleged constitutional aberration in its reasoning or judgment....,.

Costs

The applicant has not sought costs in this matter. However, the Judicial Service Commission (JSC), in its heads of argument, has motivated the Court to grant costs on a legal practitioner and client scale.

Similarly, the sixth and seventh respondents, through their heads of argument and submissions in court, have also sought costs, albeit on the ordinary scale.

The respondents claims for costs are premised on the argument that the application is devoid of merit.

The respondents appear to have disregarded Rule 55 of the Constitutional Court Rules which, in keeping with the established practice of this Court, provides that, generally, no costs are awarded in constitutional matters. This practice was recently re-affirmed in Mbatha v Confederation of Zimbabwe Industries & Anor CC05-21…,.

In my view, there is no basis or justification in this case to depart from the norm of not awarding costs in a constitutional matter.

Disposition

I have concluded, that, no constitutional matter was properly raised before the High Court or the Supreme Court and that neither court determined any constitutional question. It follows, that, the application for leave to appeal in casu is not one for leave to appeal against any decision of a subordinate court on a constitutional matter.

That being the case, inasmuch as there is no constitutional issue to be determined in the intended appeal, it becomes unnecessary to consider the applicant's prospects of success on appeal....,.

In the result, it is ordered that the application be and is hereby dismissed with no order as to costs.

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

This is an application for review of the Judicial Service Commission's decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.

The applicant is a judge of the Supreme Court and the Constitutional Court of the Republic of Zimbabwe.

The first respondent, the Judicial Service Commission (JSC) is a corporate body established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

The second, third and fourth respondents are the members of the tribunal appointed by the President to enquire into the question of the removal of the Judge from office.

The fifth respondent is the Permanent Secretary of the Ministry of Justice Legal and Parliamentary Affairs, the Co-ordinator of the Special Anti-Corruption Unit in the Office of the President as well as the Secretary of the Tribunal.

The sixth, seventh and eighth respondents are the President of the Republic of Zimbabwe (the President), the Minister of Justice, Legal and Parliamentary Affairs (the Minister) and the Attorney General of Zimbabwe (the AG) respectively.

As an administrative authority, the Judicial Service Commission (JSC) has a responsibility to take administrative action which may affect the rights, interests or legitimate expectations of any person. In so doing, section 3(1)(a) of the Administrative Justice Act [Chapter 10:23] (AJA) enjoins the JSC to act lawfully, reasonably, and in a fair manner.

On 13 December 2019, the Judicial Service Commission (JSC) held an extraordinary meeting. It resolved at that meeting to advise the President that the question of removing the applicant from the office of a judge ought to be investigated. The JSC addressed a letter to the President tendering the advice.

As his obligation, in terms of section 187(3) of the Constitution, the President appointed a 3 member Tribunal to enquire into the matter. As already indicated, the members are the second to fourth respondents, with the fifth respondent as its Secretary.

In the Zimbabwean Government Gazette Extraordinary dated 17 March 2020, the President made Proclamation 1 of 2020 which was published as Statutory Instrument 70 of 2020, SI70 of 2020 wherein, among other things, he established the Tribunal, appointed its members, Secretary, and set out the Tribunal's terms of reference.

The applicant is aggrieved by the Judicial Service Commission's decision to advise the President that the question of removing the former from the office of a judge ought to be investigated.

Acting in terms of section 4(1) of the Administrative Justice Act, the applicant has applied to this court, on review, to set aside the Judicial Service Commission's decision on the basis that it failed to act lawfully, reasonably, and fairly in coming up with the decision to advise the President. In other words, the applicant takes issue with the procedure adopted by the Judicial Service Commission (JSC) in coming up with that decision.

He also seeks certain consequential relief.

I pause to set out the Tribunal's terms of reference. They are:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

The grounds on which the application for review is based are:

“1. The absence of any of the three jurisdictional grounds for the removal of Judge prescribed under section 187(1) of the Constitution and the incontrovertible facts and circumstances upon which this would be founded;

2. The absence of specificity and lack of particularity of the exact nature of the conduct, the identity of a complainant, and the prejudice or quid pro quo to confirm the nature and gravity of the case;

3. An objection to the appointment of the Permanent Secretary, as secretary of the Tribunal, on the grounds and basis that she was an actor in the process leading to the applicant's suspension and the establishment of the Tribunal, something which gives credence to the applicant's contention that the decision to refer his matter to the President was completely unreasonable;

4. There is no prima facie material that has been alluded to in the Proclamation that would form the basis for a referral of a matter involving a senior Judge;

5. Gross irregularity in that the JSC, having procedurally decided to take a second bite at the cherry, failed to afford applicant the right to be heard in relation to the subsequent reply from Mr Ndudzo, at or before its purported meeting of 13 December 2019 in violation of the audi alteram partem rule;

6. The JSC, having reached a decision on the subject matter from the same basis and circumstances on 21 November 2019, and having communicated this to the applicant, could not revisit the matter subsequently as it had become functus officio;

7. The JSC lacked a quorum to sit on 13 December 2019 and to reverse its earlier decision;

8. To the extent that the allegations are understood and based on the documents attached to the founding affidavit, the allegations made are petty and do not meet the elevated criteria of gross misconduct or gross incompetency.”

For the purposes of this application, the issue of the investigation on the question of the removal of the applicant from the office of a Judge arose from a phone call made to Mr Ndudzo, who is a legal practitioner, as well as a complaint raised against him by Mr Moxon. The latter related to the applicant presiding over a matter between Meikles Limited and Widefree Investments (Pty) Ltd trading as Core Solutions.

Since I am required to determine this application on procedural grounds, it is not necessary for me to delve into the substance and details of the phone call and Mr Moxon's complaint.

All the respondents opposed the application....,.

THE MERITS

NO QUORUM AT THE JUDICIAL SERVICE COMMISSION (JSC) MEETING OF 13 DECEMBER 2019

It was at this meeting of the Judicial Service Commission (JSC) that the decision was taken to advise the President that the question of the removal of the applicant from the office of a judge ought to be investigated.

The parties are agreed that the membership of the Judicial Service Commission (JSC) is 13, but, there was a single vacancy at the material time. The parties are agreed that the Constitution allows the JSC to function all the same provided it has a quorum. Its quorum is 7, being half of the membership of the JSC.

The applicant made a bare allegation that only 6 members were present at the 13 December 2019 meeting.

He does not mention the names of the members who were present and of those who were not in attendance. He does not attach any supporting affidavits from either those present or those whom he alleges were absent. He does not attach a copy of the minutes of the meeting of 13 December 2019.

It is trite that an application stands or falls on the averments made in the founding affidavit: see Muchini v Elizabeth Mary Adams & Others 2013 (1) ZLR 67 (S).

It also is trite that he who alleges must prove: see ZUPCO v Parkhorse Services (Pvt) Ltd SC13-17; Circle Tracking v Mahachi SC04-17.

Counsel for the applicant conceded, that, all that the applicant has done is to allege that there was no quorum.

He argues, that, on the basis of the importance of the matter that bare allegation must shift the onus to the Judicial Service Commission (JSC) to prove that there was a quorum.

It is clear that the applicant relies on rumours for his allegation that there was no quorum.

Matters are decided on the law, facts, and the evidence - and not rumours.

The Judicial Service Commission (JSC) says there was a quorum. It is not the applicant. It suffices that it challenges the applicant to prove its allegation. The JSC has no obligation to assist the applicant to prove the latter's allegation.

I find that the applicant has failed to substantiate its allegation that there was no quorum at the meeting of 13 December 2019.

THE JUDICIAL SERVICE COMMISSION (JSC) WAS FUNCTUS OFFICIO AND COULD NOT REVERSE ITS 21 NOVEMBER 2019 DECISION

The applicant claims that the Judicial Service Commission (JSC) held an ordinary meeting on 21 November 2019 where all the Commissioners concluded that there was nothing untoward about his conduct.

He alleges that he received a phone call from the Deputy Acting Secretary of the Judicial Service Commission (JSC), Mr Stembinkosi Msipa, breaking the good news.

This is denied by the Judicial Service Commission (JSC) which avers that no such meeting was held and therefore that the decision alleged was never made.

The applicant neither produced the minutes of the alleged meeting of 21 November 2019 nor filed a supporting affidavit by the Deputy Acting Secretary.

I find that this allegation, too, was not substantiated. There was therefore nothing for the Judicial Service Commission (JSC) to reverse on 13 December 2019.

VIOLATION OF THE AUDI ALTERAM PARTEM RULE

The applicant accepts that he received, through the Judicial Service Commission (JSC), correspondence from Mr Moxon, Mr Ndudzo, and the Permanent Secretary. He admits that he responded to these letters.

I agree that his responses are detailed. His last response, of 20 August 2019, relating to Mr Ndudzo's letter, runs into 5 pages.

Thereafter, the Judicial Service Commission (JSC) asked Mr Ndudzo to comment on the applicant's reply.

The alleged non-observance of the right to be heard relates to his not being given yet another opportunity to comment on Mr Ndudzo's comment before the Judicial Service Commission (JSC) met on 13 December 2019.

My view is that Mr Ndudzo's comment, post 20 August 2019, was not another stage in the preliminary investigation by the Judicial Service Commission (JSC) but a step within that stage. It seems to me, that, the exchange of correspondence, through the JSC, could not continue ad infinitum. It had to end somewhere to pave way for the JSC to make a decision.

Despite complaining that the contents of Mr Ndudzo's last letter were so material that he ought to have been given an opportunity to respond thereto, the applicant says, in the same breath, that, whatever was referred to the President, based on the Ndudzo matter, was petty.

I therefore find that there was no breach of the audi alteram partem rule because the applicant is effectively saying Mr Ndudzo's last letter to the Judicial Service Commission (JSC) changed nothing.

With reference to the Moxon complaint, the applicant accepted that the matter had not been concluded by the advice to the Chief Justice from the Judicial Ethics Advisory Committee and the Chief Justice's correspondence to Mr Moxon and the applicant communicating that advice.

I say so because the applicant wrote to the Chief Justice stating, that, the former could not stand in Mr Moxon's way should Mr Moxon want to pursue the matter further. Indeed, Mr Moxon did so and the matter ended up before the Judicial Service Commission (JSC) at its meeting of 13 December 2019 where a decision was taken to advise the President.

ABSENCE OF JURISDICTIONAL FACTS TO GROUND THE JUDICIAL SERVICE COMMISSION'S DECISION TO ADVISE THE PRESIDENT

An exhaustive analysis of this ground is tantamount to this court substituting its views for the prima facie views of the Judicial Service Commission (JSC) already acted upon on 13 December 2019.

I do not think that it is proper for this court to do so.

I observe only, that, on the face of it, the correspondence put before me reveals that the Judicial Service Commission (JSC) must have concluded that the applicant's conduct needed to be investigated by a tribunal. I am not sitting as an Appeal Court to determine the correctness of the JSC's decision but on review to decide whether any of the jurisdictional grounds for removal of a Judge from office is disclosed on the papers put before me and on which the decision to advise the President was made.

Section 187(1)(c) of the Constitution provides that gross misconduct is one such jurisdictional ground.

Whether there was gross misconduct is not for me to determine. The Tribunal's terms of reference cover that aspect.

By the same token, this court cannot make pronouncements on the merits or otherwise of an investigation which the tribunal is constitutionally empowered to do. The court is not the Tribunal.

I do not think it necessary for the applicant to effectively be a judge in his own cause by submitting, before this court, that the basis upon which the Judicial Service Commission (JSC) advised the President was petty.

That goes to the substance of that which the tribunal is to investigate, make findings, and recommend on.

I have already found that it would be remiss of me to rule on the correctness of the Judicial Service Commission's decision to advise the President.

Given the importance of this matter, I may have hesitated to award costs against the applicant had he not instituted this application, but, instead, prosecuted the urgent chamber application which was removed from the roll, as a court application. The applicant has caused the first respondent to incur unnecessary costs by duplicating proceedings.

In the circumstances, I have no reason to depart from the general rule that success carries costs.

ORDER

In the result, the following order shall issue:

1. The application be and is dismissed.

2. The applicant shall pay the first respondent's costs.

View Appeal
SC01-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court (court a quo). The suspension from office of the appellant led to a flurry of court applications in the court a quo. This is just one of them in which the court a quo dismissed the appellant's application.

The application was made in terms of section 4 of the Administrative Justice Act [Chapter 10:28] ('the Act') on the basis that the respondents had failed to comply with the provisions of section 3(1)(a) of the Administration Justice Act.

BACKGROUND FACTS

The appellant is a former judge of the Supreme Court of Zimbabwe having been dismissed from office by the sixth respondent (the President of Zimbabwe).

The first respondent (Judicial Service Commission) is a body corporate established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution').

The second respondent (Simbi Mubako) (being the Chairperson), third and fourth respondents (Rekayi Maphosa and Takawira Nzombe) (being members), constituted a Tribunal appointed by the President of the Republic of Zimbabwe in terms of section 187(3) of the Constitution. The Tribunal was set up to inquire into the removal of the appellant from the office of a judge.

The fifth respondent (Virginia Mabhiza) was the Secretary of the Tribunal and is the Permanent Secretary of the Ministry of Justice, Legal and Parliamentary Affairs. She is also the coordinator of the Special Anti-Corruption Unit in the Office of the President.

The sixth respondent is the President of Zimbabwe (the President) and the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

The Tribunal has since completed its mandate and is no longer in existence.

On 17 March 2020, the President, acting in terms of section 187(4) of the Constitution of Zimbabwe 2013 issued, in a Zimbabwean Government Gazette Extraordinary Proclamation 1 of 2020 Statutory Instrument 70 of 2020, in which, amongst other things, he established a Tribunal to investigate the question of removing the appellant from the office of a judge. The Tribunal's terms of reference were set out as follows:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

On 13 May 2020, following the publication of Proclamation 1 of 2020, SI70 of 2020 the appellant made an application in terms of section 4 of the Administrative Justice Act (the Act) before the court a quo.

The application was made on the allegation, that, the first respondent failed to comply with section 3(1)(a) of the Administrative Justice Act in that it failed to “act lawfully, reasonably, and in a fair manner” in advising the President to set up a Tribunal to investigate the appellant.

In making the application, it was the appellant's complaint, that, by letter dated 3 March 2020, he was suspended from the office of a judge pending the determination of the question of his removal from office by a three member Tribunal appointed by the President.

The appellant further averred, that, the suspension was preceded by a letter addressed to him by the Acting Secretary of the first respondent dated 28 February 2020. In the letter, the appellant was informed, that, at a meeting held on 13 December 2019, the first respondent had resolved to advise the President to consider the appointment of a tribunal to conduct and further investigate him for alleged misconduct.

The appellant raised five grounds, asserting that the first respondent failed to comply with section 3(1)(a) of the Administrative Justice Act:

(i) Firstly, it was his averment that the first respondent had no jurisdictional grounds for referring the matter to the President.

(ii) Secondly, the appellant averred that there was gross irregularity in the referral by the first respondent as it failed to accord him the right to be heard.

(iii) Thirdly, he asserted, that, at the time the first respondent made its decision to refer the matter to the President it had become functus officio as it had previously made a determination on the matter exonerating him of any wrongdoing.

(iv) Fourthly, that the first respondent, in making its decision, was not properly constituted as it lacked a proper quorum.

(v) Finally, that the fifth respondent was biased as she was the person who referred the complaint which was made by Mr Moxon (Moxon) to the first respondent. It was thus argued, that, as a secretary to the Tribunal, she was a judge in her own cause.

The second, third, fourth and seventh respondents (Simbi Mubako, Rekayi Maphosa, Takawira Nzombe and Minister of Justice, Legal and Parliamentary Affairs) submitted that they had no interest in the outcome of the application and would abide by the court's decision.

The President maintained that he was simply fulfilling his constitutional obligation when he appointed the Tribunal upon the recommendation of the first respondent.

The fifth respondent (Virginia Mabhiza) submitted that she was acting in her official capacity as a Permanent Secretary, Co-ordinator of the Special Anti-Corruption Unit in the office of the President and as Secretary of the Tribunal set up by the President. She stated that she received correspondence from Moxon wherein he complained about the manner in which the appellant had handled his case which was before him. She thereafter referred the complaint against the appellant to the first respondent.

She further stated, that, before receiving the complaint from Moxon, she had been made aware of allegations of improper conduct against the appellant by Mr Ndudzo, a legal practitioner from Mutamangira and Associates, and she duly included the two incidents in her referral letter to the first respondent and the Chief Justice of Zimbabwe.

In denying that she was conflicted, the fifth respondent maintained that she had no personal interest in the matter and was only carrying out her duties.

At the commencement of the proceedings, the first respondent (Judicial Service Commission) raised two preliminary points:

(i) It was submitted on behalf of the first respondent that the court a quo had no jurisdiction to review the constitutional powers vested in the President if he decides to appoint a Tribunal in terms of section 187 of the Constitution.

(ii) Secondly, that the matter was lis alibi pendens as a similar application under HC2162/20 had already been made by the appellant.

On the merits of the matter, the first respondent averred that it acted lawfully, reasonably, and in a fair manner in respect of the advice it gave to the sixth respondent (the President) in terms of section 187(3) of the Constitution.

The first respondent maintained, that, the appellant was availed an opportunity to respond to the allegations made against him and he duly did so in writing.

Further, that the decision to refer the appellant's matter to the President was made by a properly constituted Board of its Commissioners. The first respondent also averred that the onus to prove the purported allegation of an improperly constituted quorum lay with the appellant.

The appellant, in turn, raised a preliminary point to the effect, that, the deponent of the first respondent's opposing affidavit, Mr Chikwana (the first respondent's Acting Secretary), lacked authority to act on behalf of the first respondent.

The appellant averred, that, on the authority of the case of Francis Bere v Judicial Service Commission and Ors HH269-20 the court had already found, that, since it is the first respondent which has the constitutional duty to advise the President on the question of removal of a judge from office it could not delegate the function of defending that decision in a court of law to its Acting Secretary.

DETERMINATION BY THE COURT A QUO

The court a quo, in a well-reasoned judgment, dismissed the appellant's preliminary point. The court found, that, in light of the first respondent's Board resolution authorizing Mr Chikwana to do so, he could properly act on its behalf.

The court also dismissed the preliminary point taken by the first respondent that the matter before it was lis alibi pendens. The court reasoned, that, lis alibi pendens was not an absolute bar to a determination of the matter. The court thus dismissed the point as it did not dispose of the matter.

The court also declined to deal with the part that the court had no powers to review the Constitutional powers vested in the President as it reasoned that the issue was on the merits and was not a preliminary part.

On the merits of the matter, the court a quo held, that, on the point that there was no quorum at the first respondent's meeting of 13 December 2019, the appellant had made bare allegations without supporting affidavits of those present at the meeting and without attaching minutes of the meeting to show that there was no quorum. The court a quo further held, that, the first respondent had no obligation to assist the appellant in proving his allegation.

With regards to the issue of whether the first respondent was functus officio and could not reverse its decision of 21 November 2019, wherein it had purportedly found the appellant not guilty of misconduct, the court a quo found, that, the appellant failed to substantiate his allegations. It found that he did not support his averment that he had received a phone call from the first respondent's Deputy Acting Secretary informing him that a decision had been taken to exonerate him. The court noted that the appellant ought to have either produced minutes of the alleged meeting of 21 November 2019 or filed a supporting affidavit from the Deputy Acting Secretary.

The court a quo also found, on the issue of the alleged violation of the appellant's audi alteram partem rule that the appellant was given an opportunity to respond to the allegations made against him. The court noted that the exchange of correspondences between the first respondent and the appellant was sufficient. Thus, the court found that the appellant's right to be heard had not been violated.

Concerning the absence of jurisdictional facts to ground the first respondent's decision to advise the President, the court noted, that, it was not sitting as an Appeal Court to determine the correctness of the first respondent's decision to refer the appellant's matter to the President.

Rather, it was being called upon to decide whether any of the jurisdictional grounds for removal of a judge were disclosed in the first respondent's papers.

The court noted, that, section 187(1)(c) of the Constitution provides for gross misconduct as one of the jurisdictional grounds for the removal of a judge from office and that is what was averred in the papers to the President.

The court, however, concluded that whether or not there was gross misconduct on the part of the appellant was not an issue to be determined by it as the terms of the Tribunal, set up by the President, covered that aspect. It was therefore left for that Tribunal to determine the guilt or otherwise of the appellant.

In accordance with the above findings, the court a quo dismissed the application with an order that the appellant pays the first respondent's costs.

Aggrieved by the decision of the court a quo, the appellant noted an appeal on the following grounds:

“1. The court a quo erred in law in not upholding the appellant's point in limine, namely, that, that (sic) the 1st Respondent was not properly before the court as the deponent to its opposing affidavit was prohibited by the Constitution of Zimbabwe from representing the 1st Respondent in an application brought by a judge pursuant to section 187(3) of the aforesaid Constitution.

2. The court a quo erred in law in not finding that the 1st Respondent had no quorum at its meeting of 13th December 2019, and, consequently, erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.

3. The court a quo erred in law in not finding, that, at the meeting of 13th December 2019, the 1st Respondent was already functus officio in respect of the complaints raised against the appellant and consequently erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.

4. The court a quo erred in law in not finding that there had been a breach of the audi alteram partem rule in respect of the 1st Respondent's handling of complaints against the appellant at its meeting on 13th December 2019 and consequently erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.

5. The court a quo erred in law in finding that the court had no jurisdiction to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution and grounding the 1st Respondent's advice to the 6th Respondent in respect of complaints against the appellant pursuant to section 187(3) of the Constitution.”

SUBMISSIONS BEFORE THIS COURT

At the hearing, the first respondent raised a point in limine to the effect that the matter before the court had become moot.

The point was taken on the basis that the appellant had already been removed from the office of a judge following the findings of gross misconduct by the Tribunal appointed by the President.

Counsel for the first respondent…, submitted that the appeal had become moot arising from the fact that the appellant's appeal was predicated on his suspension from office. He argued that this position had since been overtaken by events.

He further submitted, that, the relief sought by the appellant, intending to set aside the decision by the first respondent to refer the complaint against the appellant to the President, under section 187(3) of the Constitution, would result in a brutum fulmen.

Counsel further argued, that, in light of the Proclamation removing the appellant from the office of a judge, the work of the Tribunal had been completed, the dismissal of the appellant was final, and, as such, the appeal was devoid of merit.

In opposition, counsel for the appellant…, argued that the matter was not moot as there was a live controversy which required the Court's determination.

Counsel submitted that the live issue related to whether or not the decision of the first respondent to advise the President, in terms of section 187(3) of the Constitution, was valid.

It was counsel's submission that this was a live issue which had to be determined by the court as it affected whether or not the appellant was lawfully removed from office.

Counsel further argued, that, in any event, even if the matter is moot, this Court has a discretion to hear the matter.

Counsel thus prayed for the dismissal of the preliminary point.

On the merits of the matter, counsel for the appellant submitted, that, the Acting Secretary for the first respondent had no authority to depose to the opposing affidavit. Counsel argued, that, the court in HH269-20 had already determined that the Acting Secretary could not so act. The court a quo could not make a contrary finding that Mr Chikwana had authority to act on behalf of the first respondent.

Counsel also submitted, that, the quorum recommending that the complaint against the appellant be referred to the President was not properly constituted.

Counsel further submitted, that, the appellant was not afforded the right to be heard in terms of the audi alteram partem rule as he was not given an opportunity to respond to the letter written by Mr Ndudzo.

Counsel argued, that, the first respondent lacked the jurisdiction to refer the matter to the President without first conducting an internal hearing of its own.

Lastly, it was counsel's argument that each party should bear its own costs owing to the reason that the issues raised in the appeal were fundamentally important.

Per contra, counsel for the first respondent argued, that, the court a quo did not err in finding that the first respondent's Acting Secretary could depose to the opposing affidavit as he acted merely as an agent of the first respondent and he could swear positively to the facts as he sat in its meetings.

Counsel further argued, that, the appellant had been afforded his right to be heard as he had been given an opportunity to reply, in writing, to the complaints levelled against him as well as an opportunity to be heard by the tribunal which right he opted not to exercise by walking out of the hearing.

Counsel submitted, that, in terms of section 187(3) of the Constitution, the first respondent was within its rights and had an obligation to refer the matter to the President.

He further argued, that, the onus rested squarely on the appellant to prove his assertion that the first respondent's quorum was not properly constituted.

Counsel was not opposed to the prayer that each party bears its own costs.

Counsel for the second to seventh respondents…, submitted that none of the appellant's grounds of appeal impugned the actions of the second to seventh respondents.

Counsel submitted, that, the President was within his constitutional mandate in appointing a Tribunal to investigate the appellant's alleged acts of misconduct. Counsel thus submitted, that, the Tribunal correctly investigated the matter and made recommendations to the President. It was his argument that the President correctly acted upon those recommendations in terms of his constitutional powers....,.

DETERMINATION OF THE MERITS OF THE MATTER

The appellant's grounds of appeal raise four broad issues for determination which are as follows:

(i) Whether or not the court a quo erred in finding that the first respondent's Acting Secretary could depose to its opposing affidavit and act on its behalf.

(ii) Whether or not the appellant failed to prove that there was no quorum at the first respondent's meeting of 13 December 2019.

(iii) Whether the first respondent was functus officio as it is alleged to have reversed its decision of 21 November 2019.

(iv) Whether or not the appellant's right to be heard was violated.

I will deal with each of these issues in turn....,.

WHETHER OR NOT THERE WAS NO QUORUM AT THE FIRST RESPONDENT'S MEETING OF 13 DECEMBER 2019 AND WHETHER THE FIRST RESPONDENT WAS FUNCTUS OFFICIO AS AT THAT DATE

The facts of these two issues are interlinked so it is expedient to deal with them together.

The appellant's application for review was dismissed on the basis that he failed to prove that the first respondent did not have a proper quorum at the first respondent's meeting of 13 December 2019 and that at that meeting the first respondent had become functus officio as it had already made a decision on 21 November 2019 exonerating the appellant.

It was the appellant's argument a quo, and before this Court, that, at the meeting of 13 December 2019, where the decision to refer the appellant's matter to the President was reached, there was no quorum and thus an invalid resolution was passed.

The appellant made the allegation in his founding affidavit before the court a quo but did not produce any evidence to substantiate the allegation.

The court a quo found, that, the appellant could not make bare allegations without producing either the minutes of the meeting or a supporting affidavit from a Commissioner of the first respondent who was present or absent on that day.

A reading of the appellant's founding affidavit shows that he made the allegations based on what he termed “reliably informed” information without producing an iota of evidence to substantiate the claim.

The appellant further alleged, that, at a meeting on 21 November 2019, he was exonerated from all allegations against him and that he was informed, through a telephone call, of the news by the first respondent's Acting Deputy Secretary, Mr Msipa.

It was on this basis that the appellant argued that the first respondent was functus officio at the time it made the decision to refer his matter to the President on 13 December 2019.

It is common cause that Mr Msipa has not left the employ of the first respondent. The appellant could, and should, have approached him for a supporting affidavit in this regard.

In the event that he felt constrained to do so, he could have subpoenaed the records of the phone call that he allegedly held with Mr Msipa.

The court a quo found that the arguments by the appellant were bare, unsubstantiated allegations as there was no supporting evidence.

In any event, it seems highly unusual that the Judicial Service Commission would have relayed this information to a judge through a phone call.

The allegations against the appellant were serious.

No letter was produced by the appellant to show that the first respondent had written to him indicating that it was no longer pursuing the case against him.

In our view, it would be only after such formal notification that the appellant would be in a position to allege that the first respondent had made a prior decision and was now functus.

This Court finds no fault with the court a quo's conclusions in this respect.

It is apparent that the appellant made unsubstantiated allegations.

It is an accepted principle of our law that it is the duty of a person who makes an allegation to prove the allegation: see Mavrick Trading (Private) Limited v Double Services HH54-17; Macro Plumbers (Pvt) Ltd v Sheriff of Zimbabwe N.O. and Another HH57-15; ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC13-17.

In view of the well-grounded principles set out above, we find that the appellant's second and third grounds of appeal are devoid of merit.

WHETHER OR NOT THE APPELLANT'S RIGHT TO BE HEARD WAS VIOLATED

In his founding affidavit a quo, the appellant averred that his right to be heard was violated by the first respondent in that he was denied the opportunity to respond to the letter by Mr Ndudzo which he wrote prior to the meeting of 13 December 2019.

It was the appellant's argument, that, he was not given an opportunity to have sight of and respond to Mr Ndudzo's letter because it was submitted after he had made his own response to the allegations against him on 20 August 2019.

The appellant believes, that, by not being given the opportunity to respond to the letter, the decision of 13 December 2019 was unlawfully and unfairly made.

The record shows, that, from the moment the allegations against the appellant were made, to the day when he was suspended, there was correspondence between him and the first respondent.

The appellant was given various platforms and opportunities to respond to the two allegations made against him. Where decisions were made by the first respondent, in respect of his matter, the appellant was informed in writing.

While it is accepted, that, the appellant was not given Mr Ndudzo's letter, which was written after the appellant had made his response, it is our view that the issues had already been canvassed in previous correspondence.

It should be borne in mind, that, the audi alteram partem rule is not a rule of fixed content but varies with the circumstances of each case. What is important is that the principles of fairness have been invoked before a decision is reached.

As was stated by GUBBAY JA…, in Metsala v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (SC)…,.:

“The audi maxim is not a rule of fixed content, but varies with the circumstances. In its fullest extent, it may include the right to be apprised of the information and reasons underlying the impending decision; to disclosure of material documents; to a public hearing, and, at that hearing, to appear with legal representation and to examine and cross-examine witnesses: see, generally, Baxter Administrative Law at pp545-547.

The criterion, as I have noted, is one of fundamental fairness, and, for that reason, the principles of natural justice are always flexible.

Thus, the 'right to be heard' in appropriate circumstances may be confined to the submission of written representations. It is not the equivalent of a 'hearing' as that term is ordinarily understood.”

Thus, when the first respondent decided to refer the matter to the President, the appellant was advised of this decision and the basis thereof. It was not necessary for the appellant to again respond to the letter.

The decision to refer the matter to the President cannot, in these circumstances, be said to be a nullity.

In any event, after the tribunal established by the President was mandated to investigate all the allegations against the appellant, and, in carrying out the investigations, the appellant was again afforded the opportunity for a fair hearing.

It is an open secret that the appellant elected to walk out from the hearing of an independent tribunal.

In Forestry Commission v Moyo 1997 (1) ZLR 254 (S)…, the court discussed the effect of walking out of a disciplinary hearing and remarked as follows:

“The second and alternative ground, as I understand it, was that the respondent ought to have been afforded the opportunity to be heard even though he had walked out of the inquiry. I am unable to agree…,. His exit indicated that he had no intention of participating in the inquiry. He took a calculated risk that it would proceed without him. There was, in my opinion, no obligation upon the investigation panel to postpone the hearing and call upon the respondent to appear at another date. The audi alteram partem rule was not violated.”…,.

See also Dombodzvuku & Anor v CMED (Pvt) Ltd SC14-11.

The appellant ought to have been cognisant of the fact, that, the tribunal was set up to investigate his matter on all issues which related to his alleged acts of misconduct.

If the appellant had an issue with the letter from Mr Ndudzo, and such complaint arose after the decision made on 13 December 2019, to refer his matter to the President had already been made, the appellant should have challenged that letter before the tribunal.

It was not disputed that the appellant was given an opportunity to represent himself and prove his defence before the tribunal, but, rather, it was conceded that he walked out of the tribunal hearing.

From the above cited authorities, the appellant's actions, of walking out of the hearing, amounted to a waiver of his right to the audi alteram partem rule.

The first respondent gave the appellant adequate opportunities to make his case, and, likewise, the tribunal gave the appellant every opportunity to make his case, but, the appellant decided to waive the right for reasons best known to himself. The appellant's right to be heard cannot be said to have been violated in the circumstances of this case.

The appellant's fourth ground of appeal thus lacks merit.

DISPOSITION

The preliminary objection raised by the first respondent has merit as the matter is now moot. However, in the exercise of our discretion, we decided to determine the merits of the matter.

We are of the firm view that the appeal is devoid of any merit. The decision of the court a quo cannot be impugned. The appeal must therefore be dismissed.

The parties were agreed that each party will bear its own costs in the matter. As such, no order will be made in respect of costs.

In the result, it is accordingly ordered as follows:

The appeal be and is hereby dismissed with no order as to costs.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

We take note of, and draw attention to, the provisions of section 85(3)(c) of the Constitution 2013, which state that:“The court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities."

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

This judgment is given in default of appearance by the respondents. I am much concerned by the conduct of the officials from the office of the Attorney General, the second respondent herein.

This was an opposed application.

The respondents, through the Attorney-General, filed a notice of opposition. The record indicates, that, the notice of set down was served personally on one Talent Undenge, the law officer in the Attorney General's office who runs its civil division at Masvingo. But, on the day of hearing, not only was there no appearance by anyone from the Attorney General, but, also, there was not a word or any advice on what the respondents position was. Yet the relief sought by the applicant has far reaching consequences.

The relief sought by the applicant has far reaching consequences in that he wants a declaration of constitutional invalidity of section 93(5a) of the Labour Act [Chapter 28:01] and section 8(3) of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15 of 2006 (“the National Employment Code of Conduct”).

The applicant says that section 93(5a) of the Labour Act violates section 68(3) and section 69(2) of the Constitution; that, section 8(3) of the National Employment Code of Conduct violates the right to the protection of the law as guaranteed by section 56(1) of the Constitution and that both section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct contravene section 134(b) of the Constitution.

As such, he wants his case referred to the Constitutional Court for final determination, allegedly in terms of section 167(3) of the Constitution.

In simple terms, section 93(5a) of the Labour Act, a recent amendment to the Labour Act (i.e. in 2015), empowers a labour officer to apply to the Labour Court for the enforcement of his or her determination against an employer.

Only the employer gets cited in such an application.

For that, the applicant says, the provision discriminates against employees, something contrary to section 68 and section 69 of the Constitution. These two provisions of the Constitution guarantee to every person the right to administrative justice and to a fair hearing.

As for section 8(3) of the National Employment Code of Conduct, the applicant wants it struck off on the ground that it contains a typographical error in that it refers to a non-existent provision. He says because of it, he became non-suited in his dispute against his employer. Yet, section 56(1) of the Constitution guarantees to everyone the right to equal treatment and protection before the law.

On the other hand, section 134(b) of the Constitution does not permit a statutory instrument (such as the National Employment Code of Conduct) to infringe or limit any of the rights and freedoms set out in the Declaration of Rights.

The Constitution is the supreme law of Zimbabwe. No other law can say something to the contrary and remain valid. The courts have the power and mandate to declare a statutory provision as being inconsistent with the Constitution. But, this function is not a light matter. It is not a power that is exercised arbitrarily. Laws are made by Parliament, a legislative body made up of two Houses. The men and women who sit in them take time to scrutinise, debate, and critique a law before it is passed. It is only in cases where the court is completely satisfied that a particular law is at war with the Constitution that it will strike it down.

In this case, with the respondents in default, I could have simply granted a default judgment and announced it ex tempore on the day of hearing. But, given what is at stake, I considered it prudent to reserve my decision and think through it properly, moreso as the applicant was not represented.

Even though it was evident someone with a glimpse of legal knowledge was advising and drafting the papers for the applicant behind the scenes, it was not that easy to quite grasp the factual matrix of the dispute and its trajectory from the moment it arose.

I ended up asking the applicant to file supplementary papers on what exactly had transpired, both at the workplace and in the labour “courts.”

The matter is an employment dispute. It has a chequered past.

The dispute erupted at the workplace. It bobbed there for a while. Eventually, it bounced into the chambers of the Labour Officer. From there, it escalated to the Labour Court. After that, it became a game of ping pong. The matter was thrown back to the labour office; back to the Labour Court; back to the labour office again; back to the Labour Court; back to the workplace; back to the labour office; back to the Labour Court; and, finally to the Supreme Court.

The superior court did not decide the matter. The applicant felt unstuck. He finally came to the High Court.

I heard the applicant on 27 August 2018. He tried his best. But, at the end, I was none the wiser. The employer was not cited as a party. As said already, the Attorney-General was in default. He and the first respondent had been barred anyway for failure to file heads of argument in accordance with Order 32 Rule 238(2) and (2a) of the Rules of this Court.

But, in a matter with such a rugged past, and given the nature of the relief sought, I could do with some properly reasoned arguments and a graceful presentation. Yet, the applicant is entitled to administrative justice in terms of section 68 of the Constitution.

Rule 238(2b) of the High Court Rules says, where a respondent fails to file heads of argument timeously he or she is barred. Thereafter, the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

I opted to hear the matter on the merits.

The facts were these:

In the beginning, the applicant was an employee of a trade union, the Zimbabwe Educational Scientific, Social and Cultural Workers Union. He was a Regional Officer based at Masvingo. He was dismissed for misconduct. The dismissal followed a disciplinary process in terms of the National Employment Code of Conduct.

The applicant wanted to appeal the dismissal. He said he faced a dilemma. The dilemma stemmed from what he perceived to be a typographical error in the National Employment Code of Conduct.

Evidently, there is such an error in those Regulations.

Section 8 of the National Employment Code of Conduct governs appeals at, and from the workplace. It provides for internal appeal structures at the work-place in the form of an Appeals Officer or Appeals Committee, depending on the size of the establishment or work place. Such internal appeal structures should not exceed two appeal authorities.

In terms of section 8(3) of the National Employment Code of Conduct, a person aggrieved by a decision can appeal, in writing, and within seven working days, to the Appeals Officer or Appeals Committee.

There is a problem with this sub-section.

It is imprecise. It does not say whose decision is appealable to the Appeals Officer or Appeals Committee. It says it is a decision “…, made in terms of section (2)…,.”

But, section (2) does not exist.

The substantive section 2 is an interpretation provision. It has nothing to do with disciplinary proceedings. Disciplinary proceedings, such as would lead to the termination of employment, are governed by section 6 of the National Employment Code of Conduct. So, section 2 cannot be the provision section 8(3) of the National Employment Code of Conduct purports to refer to.

At any rate, it is a technique of legislative drafting not to use brackets for numerals representing substantive, standalone sections in statutes.

So, if the reference in section 8(3) of the National Employment Code of Conduct cannot be to a substantive section 2, one would assume it is meant to refer to section 8(2) of the National Employment Code of Conduct. But, again, that cannot be. Section 8(2) does not deal with disciplinary processes. It is the one that provides for the internal appeal structures that should not exceed two authorities.

The applicant says, faced with such a dilemma, he looked elsewhere. He discovered that section 8(6) of the National Employment Code of Conduct is another provision dealing with appeals. That provision says a person who is aggrieved by a decision or manner in which an appeal is handled by the employer or the Appeals Officer or Appeals Committee may refer the case to a Labour Officer or an Employment Council within seven days.

The applicant says he considered it was section 8(6) of the National Employment Code of Conduct that applied to his situation because section 8(3) referred to a non-existent provision.

At any rate, his employer had no appeal structures as envisaged by the National Employment Code of Conduct. He referred his case to the Labour Officer the same day that he received the dismissal penalty.

That was in March 2015.

In terms of section 8(7) of the National Employment Code of Conduct, a Labour Officer, to whom a matter is referred in terms of section 8(6), can dispose of it in one of several ways set out in section 93 of the Labour Act. Before this section was amended in 2015, these ways included conciliation or a reference to compulsory arbitration. The Labour Officer had thirty days to dispose of the matter. It was through the amendment in 2015 that the Labour Officer was now clothed with the power to approach the Labour Court as aforesaid.

After the applicant had referred his dispute, the Labour Officer, for one reason or other, did not dispose of it within the prescribed thirty days. Two months after the expiry of the thirty days, the applicant applied to the Labour Court, asking it to dispose of his appeal in terms of section 93(7) of the Labour Act.

That was in May 2015.

Section 93(7) of the Labour Act is the provision that allows any party to a dispute to approach the Labour Court to dispose of it where a Labour Officer has failed to settle it through conciliation and has issued a Certificate of No Settlement, or has, for any reason, refused to issue such a certificate.

The Labour Court, four months later, referred the matter back to the Labour Officer with instructions to appoint an arbitrator to dispose of the applicant's appeal.

That was in September 2015.

That did not happen, apparently for two reasons:

(i) Firstly, the first respondent was phasing out the system of external arbitrators. As such, the applicant was advised, that, no arbitrator could be appointed in line with the directive from the Labour Court.

(ii) Secondly, the Labour Act had just been amended as aforesaid.

Among others, the said section 93(5a) of the Labour Act had just been inserted. Disputes of right, as opposed to disputes of interest, would now be resolved in accordance with the new provisions. Among other things, once a Labour Officer made a finding of unfair labour practice against an employer, he or she would have to approach the Labour Court for his or her decision to be confirmed.

The matter was referred back to the Labour Court, by a Labour Administration Officer, who requested for directions.

In March 2016, the Labour Court gave such directions.

It directed that the matter was to be heard by a Labour Officer in terms of section 93(5)(c) of the Labour Act. This is the provision that empowers a Labour Officer to find whether or not an employer is guilty of an unfair labour practice. If he or she makes such a finding, he or she can, among other things, order the cessation of the unfair labour practice and direct the payment of moneys and/or damages.

With the newly introduced section 93(5a) of the Labour Act, the Labour Officer is then to approach the Labour Court for confirmation of his or her decision.

The Labour Officer eventually set to hear the matter in line with the directive from the Labour Court.

In May 2016, he gave his ruling. He made a finding that he had no jurisdiction to determine the appeal. His reason was, that, the first time the applicant had referred his appeal to the Labour Officer (in March 2015) he had erred. He said in terms of section 8 of the National Employment Code of Conduct, no appeal lies to the Labour Officer from a decision of a disciplinary authority at the workplace. It is only an appeal, decision, or the conduct of an appeal authority that may be referred to the Labour Officer.

So, in the end, the Labour Officer held, that, he had no jurisdiction to determine the appellant's appeal because it was not an appeal against an appeal decision, but an appeal against the decision of a disciplinary authority in the first instance.

Before this ultimate conclusion, the Labour Officer had made the observation, that, instead of appealing to the Labour Officer in terms of section 8 of the National Employment Code of Conduct, as he had done, the applicant ought to have appealed straight to the Labour Court, allegedly in terms of section 92D of the Labour Act.

Section 92D of the Labour Act is the one that governs appeals to the Labour Court that are not provided for elsewhere in the Labour Act. It says a person who is aggrieved by a determination made under an employment code, may appeal to the Labour Court in the manner and time prescribed.

In September 2016, the Labour Court confirmed the ruling of the Labour Officer.

But, the applicant had applied to that court for condonation for late noting of appeal. Condonation was refused “…, for failure to exhaust local forum.”

The applicant went back to the workplace. He said heeding what the Labour Officer had said about appeals lying to them only from an appeal decision by, or conduct of, an appeals authority of the employer, he filed an appeal to the Appeals Officer/Appeals Committee a day after receiving the Labour Court's decision.

He also sought condonation for the late noting of the appeal. But, without referring it to the Appeals Officer or Committee proper, the employer, through the General Secretary, acting on external legal advice, dismissed the appeal and the request for condonation on the basis that there was no provision for an application for condonation in the National Employment Code of Conduct.

That was in October 2016.

The applicant appealed to the Labour Officer. He lost. The conclusion reached by the employer's General Secretary was upheld.

The Labour Officer took his decision to the Labour Court for confirmation, purportedly in line with the new section 93(5a) of the Labour Act.

The Labour Court declined to do so on the basis, that, the Labour Officer had an inherent power to hear an application for condonation which he should have exercised and that the decision by the employer, which the Labour Officer had wrongly upheld, was irregular in that it had been made by a fellow employee supplanting an Appeals Committee.

The Labour Court referred the matter back to the workplace and directed the employer to set up an appeals structure for the determination of the applicant's appeal within thirty days, or such extended period as might be granted. The Labour Court also directed, that, in the event that the employer failed to hear the appeal as directed, then, the applicant would automatically be reinstated without loss of salary and benefits while the parties might be taking their case to any next level.

That was in May 2017.

The employer was aggrieved by the decision of the Labour Court. It appealed to the Supreme Court. It took a point in limine, that, by section 93(5a) of the Labour Act, only when a Labour Officer has ruled against an employer is he or she required to approach the Labour Court for confirmation of his or her decision, not, as was the case in this matter, where the Labour Officer has ruled against the employee.

The applicant said he conceded the point in limine. He presumed the Supreme Court would uphold it because it had done so in a previous case where the same point had been raised.

The applicant felt he was back to nowhere.

His appeal was never determined on the merits.

He felt the culprit was section 93(5a) of the Labour Act that allows approaches to the Labour Court by a Labour Officer only where he or she rules against the employer, but not where he or she rules against the employee.

The employee who loses before a Labour Officer has nowhere else to go, whereas an employer who loses before the same Labour Officer is actually and automatically guaranteed another hearing before a court.

The applicant also felt, that, the ambiguity brought about by the error in section 8(3) of the National Employment Code of Conduct blocked his right of access to the courts.

He then turned to the High Court for an order of invalidity against the two offending provisions.

Interestingly, in their notice of opposition, the respondents agreed with the applicant in relation to section 93(5a) of the Labour Act. They said:

“Respondent concedes to the challenges against 93(5a) of the Labour Act [Chapter 28:01] as amended and has since sought to repeal the provision in its current Labour Act Amendment Bill. I however deny that section 8(3) of Statutory Instrument 15 of 2006 violates the Applicant's rights for the reasons advanced in my paragraphs 9 and 10.”

But, despite their denial in regards to section 8(3) of the National Employment Code of Conduct, the respondents essentially conceded the error. They said:

“Indeed, the said section makes reference to a section 2 which is not there; but, however, a departure from the ordinary grammatical interpretation of the section will lead to a reasonable conclusion that the section being referred to is section 6.”

Arguing that a diligens paterfamilias applying their mind to the intention of the Legislature would have come to the logical conclusion that section 8(3) of the National Employment Code of Conduct meant to refer to section 6, the respondents said the remedy sought by the applicant was outrageous and should therefore be dismissed with costs.

Justice must not only be done. It must also be seen to be done.

The respondents openly admit inherent problems or errors in pieces of legislation made by, and administered by them.

In relation to section 93(5a) of the Labour Act, the respondents promised repeal. That has not happened.

In relation to section 8(3) of the National Employment Code of Conduct, the respondents expressly admit the error but urge the applicant to resort to some tenet of construction to unravel what they meant to say.

Yet, in his quest for justice, the applicant has, for more than three years, been shunted from pillar to post by the administrative and adjudication structures under their purview. These structures have differed in their interpretation of the impeached provisions.

What is more, as the respondents are mulling getting rid of section 93(5a) of the Labour Act, the Supreme Court, in an unrelated case, the judgment of which was delivered at about the same time the applicant was filing this application with this court, has impugned the provision and urged the Legislature to have a look at it.

This was in Drum City (Pvt) Ltd v Garudzo SC57-18.

The superior court noted, that, section 93(5a) and (5b) of the Labour Act do not empower the Labour Court to confirm a draft ruling of a Labour Officer made against an employee. The employee is excluded from the confirmation proceedings. Yet, he or she has a direct and substantial interest in those proceedings.

He or she has a right to be heard.

The superior court further said, that, a procedure that says a Labour Court can sit for the confirmation or non-confirmation of a ruling by a Labour Officer, in the absence of an employee, who is an interested party, is an irregularity and a travesty of justice.

The court noted a myriad of problems posed by such a procedure, not least:

(i) The fact that even where the ruling by the Labour Officer is in favour of the employee, but is not confirmed by the Labour Court, the employee who is affected by the non-confirmation cannot appeal. Conversely, where the Labour Court confirms the ruling, the employer may wish to appeal to the Supreme Court, but, the employee is necessarily absent. Yet the outcome at the Supreme Court may be adverse to the employee.

(ii) The fact that even where the Labour Court confirms the ruling against the employee and he or she wants to enforce it by execution, the writ cannot be in his or her name because that name appears nowhere in the final orders.

As a way around the absurdities created by section 93(5a) of the Labour Act, the Supreme Court suggested, that, the employee should always be joined as a party to the confirmation proceedings before the Labour Court. However, the superior court also urged the Legislature to seriously reconsider the provision - exactly the same thing the respondents herein have promised they are doing.

Therefore, it seems obvious that section 93(5a) of the Labour Act is impeachable. The respondents concede it. The Supreme Court virtually confirms it.

The question of the declaration of constitutional invalidity of section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct was not before the Supreme Court.

It is squarely before me now.

I hold that section 93(5a) of the Labour Act is ultra vires section 56(1) and (3) of the Constitution that guarantee the equality of all persons before the law, and the right not to be treated in an unfairly discriminatory manner on the grounds of, inter alia, economic or social status.

It also violates section 68 of the Constitution that guarantees the right to administrative justice that is, inter alia, lawful, efficient, reasonable, impartial and both substantially and procedurally fair.

The applicant says he seeks the declaratur in terms of section 14 of the High Court [Chapter 7:06].

But, in terms of this provision, a declaratur, it is not sought by anyone and anyhow; otherwise, any public busybody or watchdog whose hobby it is to surf the legislative landscape for any statutory provisions mis-aligned with the Constitution would clog the judiciary with endless suits for declarations of constitutional invalidity.

A mover for a declaratory order, under section 14 of the High Court Act, must demonstrate more than mere academic interest. The court does not decide abstract or hypothetical questions: see Adbro Investments Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T)…, and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S). He or she must show the existence of some tangible and justifiable advantage to himself.

In terms of section 14 of the High Court Act, a person who qualifies to move for a declaratory order is one who has an interest in having his or her existing, future or contingent right or obligation determined even if he or she cannot claim any relief consequential upon such determination…,.

In the draft order, the applicant does not seek the determination of existing or future or contingent rights. He does not seek determination of any rights at all. His woes with his employer are all in the past now.

I do not underrate them. It is only because he has been importunate that the matter is now before this court.

But, under section 14 of the High Court Act, one does not seek a declaratur for the determination of rights existing in the past.

I am mindful that section 14 of the High Court Act does not require that one who seeks a declaratory order should claim any relief consequent upon the determination by the court. But, at least, he or she must have an existing or future or contingent right that the court should, or will determine.

It seems the undisclosed lawyers handling the applicant behind the scenes eventually wisened up to this pitfall. They filed heads of argument, even though as a “self-actor” the Rules do not require the applicant to file any. In the very last paragraph, it is submitted, that, in addition to the relief sought in terms of the draft order, the applicant should be granted a further remedy as follows:

(i) That, in the case of the impugned section 8(3) of the National Employment Code of Conduct, the applicant should be granted the right to file an appeal against the decision of the disciplinary authority to the internal appeals authority; or

(ii) That, in the case of section 93(5a) of the Labour Act, the applicant should have the right to appeal against the ruling by the Labour Officer to the Labour Court.

I consider that the applicant's request in the heads of argument brings him within the purview of section 14 of the High Court Act. His claim in the draft order ceases to be merely academic.

But, even if I should be wrong on this, I consider that section 85 of the Constitution has widened the scope under which a declaratur may be sought if it is in relation to the enforcement of fundamental human rights and freedoms under Chapter 4 Part 4 of the Constitution.

In this case, the rights the applicant alleges have been infringed in relation to himself fall under this part of the Constitution. They are the right to equal protection before the law and the right not to be discriminated against (section 56 of the Constitution); the right to administrative justice (section 68 of the Constitution) and the right of access to the courts or some other tribunals (section 69 of the Constitution).

Section 85 of the Constitution reads:

“85 Enforcement of Fundamental Human Rights and Freedoms

(1) Any of the following persons, namely —

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

Thus, a right existing in the past which an applicant can show was infringed in relation to themselves can support a claim for a declaratur.

However, my conclusion above is only in relation to section 93(5a) of the Labour Act.

I am not satisfied that it was really the typing error in section 8(3) of the National Employment Code of Conduct that led the applicant to adopt the course that he did.

Despite that error, it is evident, even as presently worded, that the reference of a matter to a Labour Officer that section 8(3) envisages, is not from a decision of a disciplinary authority at the first instance. It is from a decision or conduct of an Appeals Authority on appeal.

It was wrong for the applicant to invoke section 8(6) of the National Employment Code of Conduct and assume it applied to his case.

In the final analysis, the applicant, having sought no order as to costs, the following order is issued:

1. It is hereby declared that section 93(5a) of the Labour Act [Chapter 28:01] is in conflict with section 56(1) and (3); section 68(1) and section 69(3) of the Constitution of Zimbabwe and is therefore invalid.

2. The declaration of constitutional invalidity in paragraph (1) above may be referred for final determination by the Constitutional Court of Zimbabwe in terms of section 175 of the Constitution and the Rules of that Court.

3. Subject to paragraph (2) above, the applicant is hereby granted the right to appeal to the Labour Court, as soon as practicable, the decision of the Labour Officer/Designated Agent, E Muzvidziwa, Esquire, handed down on 9 December 2016.

4. There shall be no order as to costs.

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain ...

FACTUAL CONSPECTUS

The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3,986=61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.

Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of section 93 of the Labour Act [Chapter 28:01] (“the Act”). The dispute was placed before the respondent for a hearing.

It was her case, that, no proper investigations were conducted into the allegations levelled against her, and, further, that she was not granted the right to be heard before she was summarily dismissed.

She thus claimed damages for unlawful dismissal totalling US$23,253=34.

Before the labour officer, the parties did not agree on Ms Khan's monthly salary, as the appellant alleged that it was US$750 while Ms Khan argued that it was US$1,500. The respondent ruled in favour of Ms Khan on this point, and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages in lieu of reinstatement amounting to a total of US$9,000.

Subsequently, the labour officer applied to the Labour Court in terms of section 93(5a) of the Labour Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings.

The appellant opposed the application, but, the court a quo, after hearing oral argument from the appellant, granted an order confirming the ruling.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the decision of the court a quo and has appealed against it to this Court.

It argues in the main, that, the court a quo erred in simply confirming the respondent's award to Ms Khan of US$9,000 as damages without fully addressing the principles of law to be applied thereto. It further argued, that, the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property, and, in addition, had failed to avail herself for the hearing which led to her dismissal.

The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing.

The court observed, that, the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.

Ms Khan, was not cited in the appeal before this Court.

Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.

SECTION 93(5a) OF THE LABOUR ACT – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS

Counsel for the appellant rightly conceded, that, the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court a quo and in this Court.

Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.

The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of section 93(5a) of the Labour Act.

The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer's draft ruling in terms of section 93(5b) of the Labour Act.

It is noted, that, prior to the Labour Amendment Act No.5 of 2015, labour disputes of right would go before a labour officer for conciliation, and, if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard.

Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party, on the other hand, had the right to appeal against the award to the Labour Court.

The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of section 93(5a) and (5b) of the Labour Act was meant to address this mischief.

Subsections 93(5a) and (5b) of the Labour Act provide as follows:

“(5a) A labour officer who makes a ruling and order in terms of ss(5)(c) (this paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights) shall as soon as practicable -

(a) Make an affidavit to that effect incorporating, referring to, or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) Lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down for hearing (the “return day” of the application) to do or pay what the labour officer ordered under ss(5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”…,.

My interpretation of the two provisions cited suggests the following procedural steps;

(a) The labour officer, after making a ruling in terms section 93(5)(c)(ii) of the Labour Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based.

(b) The labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).

(c) The labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.

(d) Should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.

(e) On the date of hearing (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment.

(f) Thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order (obtained in default of appearance by the respondent, or after a hearing by the Labour Court) for registration.

(g) Upon submission of the order to the relevant court for registration, it shall have the same effect, for purposes of enforcement, as any civil judgment of that court.

It is to be noted from the above, that, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in sections (5a) and (5b) of the Labour Act.

In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) of the Labour Act which specifically provides for a ruling, like the one in casu, in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute.

I am satisfied, that, the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer, which is made in favour of an employer and against an aggrieved employee.

It follows, that, the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.

It is noted further, that, the wording of section 93(5b) of the Labour Act, albeit not specifically stating so, excludes the employee concerned from the confirmation proceedings.

This is an employee who would have been an active party in, as well as the instigator of the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her.

In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.

It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests.

Even the nature of the hearing mentioned in section 93(5b) of the Labour Act is not clear (the hearing is certainly not an appeal against nor a review of the Labour Officer's ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer's ruling) one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.

The employee, on these grounds, can, in my view, properly apply to be joined to the confirmation proceedings in terms of Rule 33(2) of the Labour Court Rules, SI150/17.

The joinder of a party mero motu by the court is not expressly provided for in Rule 33 of the Labour Court Rules, however.

I am nevertheless satisfied, that, this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court, in a deserving case, to order mero motu the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings.

Such an order would ensure full compliance with the common law rule, audi alteren partem.

The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities:

CILLIERS AC, LOOTS C and NEL HC, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1, at page 215, explain non-joinder by stating as follows:

“A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings, or, if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such a person has waived the right to be joined…,; in fact, when such person is a necessary party in the sense that the court will not deal with the issues without a joinder being effected, and no question of discretion or convenience arises.”…,.

The meaning of direct and substantial interest is explained at page 217 to 218 as follows:

“A 'direct and substantial interest' has been held to be 'an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation'. It is 'a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only'. The possibility of such an interest is sufficient, and it is not necessary for the court to determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation but also in the outcome of it.”…,.

It hardly needs emphasis, that, albeit not applicable in casu, an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore, in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.

The employee, in any case, would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment.

The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order mero motu that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent.

That, the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates (see HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1 at pages 208 to 209);

“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder, the court should raise it mero motu to safeguard the interest of third parties and it should decline to hear the matter until such joinder has been effected, or until the court is satisfied that the third parties have consented to be bound by the judgment or have waived their right to be joined.”

When this is related to the circumstances of this case, it cannot, in my view, be contested that the joinder of the employee, Ms Khan, was necessary.

While it is noted, in casu, that, the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored, that, the court effectively heard evidence from one side of the dispute and not the other, before making its determination.

As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling. It then essentially weighed the respondent's submissions against what was contained in the affidavit of the labour officer (before the court a quo, the labour officer briefly repeated the facts of the dispute and the details of the award she had made), and made its determination.

The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the quantum of the award. Nor, however, could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking, that, the employee had been accorded the unfair advantage of having her case 'argued' for her by the labour officer.

There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings:

(i) Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, section 93(5b) of the Labour Act affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter.

It is evident from section 93(5b) of the Labour Act, that, before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is, in reality, not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect.

He cannot, therefore, be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation.

Defending the labour officer's ruling should properly be the province of the person directly affected by it, that is, the employee concerned.

In my view, the Labour Court's confirmation or non-confirmation of the ruling, after effectively hearing one side of the dispute, is, at best, an irregularity, and, at worst, a travesty of justice.

(ii) Secondly, the procedure presupposes, that, a ruling made by the labour officer in favour of an employee will meet that employee's satisfaction.

It shuts the door, for instance, on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that quantum, in confirmation proceedings before the Labour Court.

A joinder to the proceedings would accord the employee the opportunity to, as it were 'cross oppose' the confirmation proceedings in the desired respect.

(iii) Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court, for one reason or the other, the employee might wish to take up the matter on appeal. He would, however, be hamstrung by the fact, that, he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order on his or her behalf.

(iv) Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.

One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent.

This is what happened in casu.

All too often, this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal.

Equally, often, the respondent cited in the appeal, that is, the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument. Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer's appearance.

Ordinarily, where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party.

The point has already been made, that, the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee's knowledge.

The injustice of such an outcome needs no emphasis.

(v) Finally, the appearance of the labour officer, as the respondent, in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems.

In such cases, the question of the labour officer's competence to so appear has arisen.

In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis? It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.

Other aspects of the procedure suggested by subsections (5a) and (5b) of section 93 of the Labour Act merit some comment.

Section 93(5b) of the Labour Act makes it clear, that, the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court's confirmation of the labour officer's ruling.

Further, while section 93(5b) of the Labour Act clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution.

Without being cited as a party, there would be confusion as to whether the 'claimant' that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite locus standi, and, moreso because section 93(5b) does not mandate him to do so.

The danger of the Labour Court's order being rendered a brutum fulmen becomes real.

In conclusion, while one might argue, in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view, that, the absurdities could not have been consciously intended by the legislature.

The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court.

The legislature might well wish to consider addressing this, and the other concerns, set out in this judgment.

DISPOSITION

When all is said and done, and in view of the foregoing, it is my finding, that, there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can, therefore, not be allowed to stand.

In the result, the following order is made:

1. The appeal be and is hereby allowed.

2. The proceedings and judgment of the court a quo be and are hereby quashed.

3. The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.

4. Each party shall bear its own costs.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE
Ruled By: MUZENDA J

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:“IT IS ORDERED THAT:1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.2. The 1st respondent be and is hereby ordered ...

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:

“IT IS ORDERED THAT:

1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.

2. The 1st respondent be and is hereby ordered to entertain the applicant's appeal lodged on 12 February 2015 within twenty one (21) days of this order being granted.

3. The respondents to pay costs of suit jointly and severally, the one paying the other to be absolved.”

Facts

On or about December 2014, the applicant was charged with contravening section 3(46) of the Prisons (Staff) (Discipline) Regulations 1984. It was alleged, that, at Mutare Farm senior officers Mess, the applicant, being a member of the service, did wrongfully and unlawfully utter despicable words against the first lady, Dr Grace Mugabe, saying “Ma problems ese arikuitika mumusangano anokonzereswa nembwa inonzi Dr Grace Mugabe asi isu musangano tinouda.”

This was against the discipline - especially of a commissioned officer.

The disciplinary hearing was conducted in January 2015 in terms of section 10(1) and (11) of the Prisons (Staff) (Discipline) Regulations 1984.

The applicant was found guilty and discharged from service.

He filed an application for review to the Commissioner in terms of section 22(1) of the Prisons (Staff) (Discipline) Regulations 1984. The Commissioner confirmed the Board's decision and dismissed the application for review.

The applicant did not rest, he appealed to the Public Service Commission in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984.

The Public Service Commission refused to entertain the appeal citing lack of jurisdiction and the relevant portion of the letter of 17 March 2015, addressed to the applicant's legal practitioners, reads as follows:

“It has been noted that you were engaged as a Commissioned officer at the rank of Superintendent in the Zimbabwe Prisons and Correctional Services. In terms of section 9(1)(e) of the Prisons Act (Chapter 7:11) the President may reprimand, suspend, reduce rank or discharge any Commissioned officer. The Prisons and Correctional Service does not have the jurisdiction to preside over cases involving Commissioned officers.

This rests your case with us. Please be guided accordingly.”

The applicant genuinely believes that the Public Service Commission has the jurisdiction to entertain the appeal made in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984. However, up to now, the first respondent has failed to hear the appeal hence this application.

The application is opposed.

In the opposing papers, the first respondent raises a preliminary point premised upon the citation of the first respondent.

According to the respondents, the first respondent does not, and has no jurisdiction to determine the applicant's appeal in her capacity as Secretary of the Public Service Commission.

The Public Service Commission, she argues, is a separate legal entity to the Prisons and Correctional Services Commission. The Secretary, Public Service Commission acts as the Secretary to the Prisons and Correctional Services is incorrectly cited as she does not represent the Commission, the applicant ought to have cited the Chairperson to the Prisons and Correctional Services Commission.

Further, the first respondent does not deal with appeals in her official capacity, and, as such, she is incorrectly cited....,.

Counsel for the first respondent submitted, that, the improper citation of a party renders the application void.

Counsel for the first respondent cited the matter of Matida v Chairman, PSC and Anor 1998 (1) ZLR 507 (H): ADAM J…, had this to say relating to the citation:

“Now, that court application, firstly, cites the Chairman of the Public Service Commission as the first respondent. Yet, the annexure to the founding affidavit gives the Public Service Commission as the decision maker. The wrong party has been cited. Rule 256 surely is concerned with the decision or proceedings of the legal persona, be that an inferior court, tribunal, board or officer. This means it is that legal persona whose decision or proceeding has to be reviewed that must be cited and the application must be directed and delivered, in the case of the tribunal or board, to the Chairman of that body: see in this regard Maxwebo v Chairman, Public Service Commission HH125-97 at p6-7 where SMITH J said:

'Before concluding, I wish to make an observation on the party cited as respondent. The Chairman of the Public Service Commission was so cited. Although exception was not taken there, I considered that it was improper to cite him as respondent. Section 74 of the Constitution establishes the Public Service Commission which consists of the Chairman and not less than two and not more than seven other members.

Any findings, rulings or decisions of the Public Service Commission are those of the body and not of the Chairman.

Accordingly, the Chairman of the Public Service Commission cannot do anything in the name of the Commission if the majority of members do not agree with him.

The distinction is illustrated by the order sought by the applicant.

The draft order states that the respondent's decision to find the applicant guilty of misconduct should be set aside. However, the findings of guilty was not a decision of the respondent. It was a decision of the Public Service Commission.

I therefore consider that it was improper to cite the Chairman as respondent. The Public Service Commission should have been cited as the respondent.'”

In the case of City Bolts (Pvt) Ltd v Workers Committee SC16-12, GARWE JA.., ruled as follows:

“At the hearing of this matter, it appeared to this court, that, the respondent, simply cited as 'Workers Committee' was not a legal persona capable of being sued. Accordingly, both counsel were asked to address the court on the matter. Both counsel accepted, that, the respondent, which is a Workers Committee appointed by workers of the appellant company, is not a legal persona and cannot therefore be sued.”

The applicant improperly cited the Secretary as the first respondent instead of citing the Public Service Commission. That was a fundamental error and the preliminary point finds favour with this court, and, accordingly, the point in limine is upheld and the application is dismissed with costs.

It is so ordered.

HMT23-20 : IDAH TAGARIROFA vs NHEDZIWA HIGH SCHOOL DEVELOPMENT COMMITTEE
Ruled By: MUZENDA J

This is an application for a declaratur where that applicant is seeking the following relief as per her draft order:“IT IS ORDERED THAT:1. The application be and is hereby granted.2. The disciplinary proceedings conducted by the respondent against the applicant, in terms of SI15 of 2006, be and is hereby ...

This is an application for a declaratur where that applicant is seeking the following relief as per her draft order:

“IT IS ORDERED THAT:

1. The application be and is hereby granted.

2. The disciplinary proceedings conducted by the respondent against the applicant, in terms of SI15 of 2006, be and is hereby declared a nullity.

3. The respondent be and is hereby ordered to reinstate the applicant without loss of salary and benefits with effect from the date of termination of contract of employment.

4. The respondent be and hereby ordered to pay costs of suit on an attorney-client scale up to the application is opposed.”

The application is opposed. The respondent raised three points in limine:

1. This matter has already been determined by the Labour Court sitting at Harare under case No. LC/H/LRA/216/17. This identical application already has a judgement.

2. In as far as this Honourable Court has jurisdiction over labour matters, it is not permissible for parties to approach the High Court and the Labour Court with the same issue as was done herein. In other words, the matter is res judicata.

3. The dispute has already been dealt with by the Labour Court.

BACKGROUND

The applicant is a former employee of the respondent. Her contract of employment was terminated by the respondent using the standard National Employment Council S.I.15 of 2006. A Designated Agent attempted to register the determination with the Labour Court, but, the Labour Court rejected the application on the basis, that, the respondent did not fall under the auspices of the National Employment Council for Zimbabwe Schools Development Association and Committees of Zimbabwe.

The applicant made another application in the Labour Court seeking, among other things, the setting aside of the disciplinary proceedings conducted by the respondent in terms of SI15 of 2006 and reinstatement of the application without loss of benefits.

The Labour Court application was struck off the roll with costs for lack of compliance with the Rules.

The applicant then filed the present application.

In opposing the application, the respondent contends on the merits, that, after the dismissal of the applicant, she appealed against her dismissal in terms of the National Employment Council for Schools Development Association, as already highlighted herein; the Labour Court declined. The respondent contends, further, that, she used S.I.15 of 2006 because at the time the disciplinary proceedings were conducted there was no registered Code of Conduct governing the labour issues of the respondent. The respondent added, that, when the Labour Court removed the matter from the roll, the applicant made another application which was also dismissed by the Labour Court....,.

WHETHER THE APPLICANT CAN BE GRANTED THE RELIEF SOUGHT

The basis for seeking the order for a declaratur by the applicant is basically that the proceedings were conducted under the auspices of SI15 of 2006 and not under the code of conduct for the National Employment Council for Welfare and Educational Institutions which was the appropriate employment Council at the time the disciplinary proceedings were conducted.

The respondent denies that it used S.I.15 of 2006 wrongly.

It argues, that, at that time, there was no registered Code of Conduct to be used by it so it used SI15 of 2006.

The argument by the respondent does not find favour with this court.

The National Employment Council for Welfare and Educational Institutions apply to non-governmental schools and has been in existence for fairly a long time.

In my view, the respondent ought to have resorted to that employment council in disciplining the applicant.

I agree with the applicant, that, once the respondent used the wrong statute and/or wrong Code of Conduct, the subsequent proceedings are a nullity: see Makumbe Primary School v Vivian Makumbe and 2 Others LC/11/14/16 and Chikomba Rural District Council v Herbert Pasipanodya SC26-12.

The proceedings were not in accordance with the due process of the appropriate legislation applicable to the dispute in question. SI15 of 2006 would only apply where there is no applicable Code of Conduct.

On the question of whether this court has jurisdiction over labour matters, counsel for the respondent submitted, that, he was aware that the court has jurisdiction, and, in my view, there is no need to belabour the issue where it is common cause to the parties before me.

In the matter of Johnson v Agricultural Finance Cooperation SC17-95 GUBBAY CJ…, held that:

“A declaratory order, under section 14 of the High Court of Zimbabwe Act, requires a two prong enquiry:

(a) Is applicant an interested party.

(b) Is this a proper case for the exercise of the court's discretion?”

Johnson v Agricultural Finance Co-operation SC17-95 is also of the authority that a declaratory order ought to be granted on one aspect if it will solve that part of a dispute.

In Bubye Minerals (Private) Limited v Minister of Mines and Mining Development and 3 Others SC03-11 MALABA DCJ…, citing Mcfoy v United Africa Co. Limited [196] 3 All ER 1169 (PC) at 11721 reiterated the authority of the principle relied upon, that, all proceedings founded upon a decision which is null and void ab initio are also bad and incurably bad.

See also Mugwebie v Seed Co. Limited and Another 2000 (1) ZLR 93…,.

The employer, the respondent, can only do things which are governed by law and act in accordance with the provisions of an appropriate employment statute - even where the employee does not object to the use of the S.I.15 of 2006.

The applicant prayed for an order reinstating her without loss of salary and benefits with effect from date of termination of her contract of employment.

I am aware that when the proceedings are declared null and void, the status quo is restored; however, in this case, the applicant, or respondent, must use the appropriate conduct to deal with the issue of whether the applicant should remain at work or not.

There is no need to reinstate the obvious result in my view, moreso, where the proceedings are declared a nullity....,.

Accordingly, it is ordered as follows:

(a) The disciplinary proceedings conducted by the respondent, against the applicant, in terms of SI15 of 2006 be and are hereby declared a nullity.

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: KUDYA AJA

This composite application for condonation and extension of time for leave to appeal, and leave to appeal raises an interesting question.

It is whether an applicant who seeks and is denied condonation for the late filing of an application for leave to appeal in a lower court and therefore fails to make the actual application for such leave in that court, can procedurally seek leave to appeal from a judge of this Court in chambers.

The applicant filed the present application on 25 March 2021.

It seeks condonation and extension of time for leave to appeal and leave to appeal against the original judgment handed down by the Labour Court on 24 February 2017.

The application is opposed by both respondents.

The Facts

The applicant is a constitutional body established in terms of section 254 of the Constitution of Zimbabwe 2013. It is charged with the responsibility of combating corruption in all its manifestations in Zimbabwe.

The two respondents are former employees of the applicant. The first respondent was a General Manager Finance, Administration and Human Resources and the second respondent was a Chief Accountant.

The two were charged with misconduct, found guilty and discharged from employment on 14 July 2016.

They filed an application for review against the composition and findings of the Disciplinary Committee. The review application was based on 10 grounds. They sought, firstly, the nullification of their suspension, verdict and sentence, and, secondly, their reinstatement to their previous positions on full benefits.

The applicant refuted each and every ground of review.

Findings of the Court a quo

On 24 February 2017, the court a quo dismissed the first three grounds of review that impugned the procedural propriety of amending the statute under which they were charged from the Anti-Corruption Act [Chapter 9:22] to the Labour (National Employment Code of Conduct) Regulations, 2006, SI15 of 2006 model law.

It found, on the authority of Standard Chartered Bank v Matsika 1996 (1) ZLR 12 (S), that, the amendment of the statute under which they were charged, from the Anti-Corruption Act to the National Employment Code Model, was proper.

The amendment did not alter the charges of domiciling Treasury funds in their own company instead of in the account of the applicant nor was it prejudicial to the two as they were afforded adequate time, of at least a month, within which to respond to the charges and prepare their defences.

The Labour Court, however, upheld grounds 4 and 5, which it found to be dispositive of the review application without considering the remaining grounds of review.

It found that the Disciplinary Committee was improperly constituted, and held, on the authority of Madoda v Tanganda Tea Co. 1999 (1) ZLR 374, that, it was voidable at the instance of the prejudiced respondents. It set aside the proceedings and remitted the matter to a properly constituted Disciplinary Committee.

The remittal was based on the sentiments of MUCHECHETERE JA in Standard Chartered Bank of Zimbabwe Ltd v Chikomwe & Ors SC77/2000, SC77-00 that:

“…, reinstating the respondent in the circumstances implies a finding that respondents were innocent of the charges of misconduct against them by the hearing officers…,. A setting aside of the proceedings of the disciplinary committees should therefore lead the parties to the same position before the hearing in the disciplinary committees - appeals before a properly constituted disciplinary committee.”

The two respondents therefore remained on suspension but on full salary and benefits.

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: KUDYA AJA

The Legislature..., amongst other things, requires that Labour matters be completed inexpensively and timeously with minimum regard to formalism.

SC34-22 : NICHOLAS MUKARATI vs PIONEER COACHES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

This is an appeal against the judgment of the Labour Court (the court a quo) handed down on 21 October 2016 which allowed an appeal by the respondent against an arbitral award issued by an arbitrator on 13 October 2015.

The court a quo set aside the arbitral award and remitted the matter to an arbitrator of the parties choice, or one selected by the Registrar, for a hearing to determine the appropriate penalty to be imposed on the appellant.

FACTUAL BACKGROUND

The case itself has a chequered history, being a labour dispute that has gone backwards and forwards as the parties bickered over either the procedure adopted or the choice of arbiter.

The appellant was employed by the respondent as its Managing Director. He was suspended from employment in April 2010 on allegations of gross incompetence and gross inefficiency under section 4(f) and (h) of the National Employment Code of Conduct, S.I.15 of 2006 (the National Code of Conduct).

Five counts of misconduct were preferred against the appellant:

(i) Firstly, it was alleged that he had submitted a report to the Board of Directors of a net loss of US$56,930 for the year ending on 31 December 2009 when the real net loss, as uncovered by external auditors, was US$657,365.

(ii) Secondly, it was alleged that the appellant failed to fully account for R700,000 which had been transferred from Mavambo Coaches.

(iii) Thirdly, it was alleged that the appellant paid himself a US$2,000 long service award in January 2010 without Management and Board approval.

(iv) Fourthly, he was accused of authorising staff loans amounting to US$23,549 in December 2009 and January 2010, when the company was in financial dire straits.

(v) Fifthly, the appellant was accused of paying management incentives amounting to US$21,800 in December 2009, against a loss which militated against payment of incentives.

An internal disciplinary hearing was conducted which found the appellant guilty and recommended his dismissal from employment.

The appellant challenged the propriety of those proceedings through a review application brought before the court a quo.

That contested review application yielded a consent order granted by the court a quo on 28 October 2010 in the following terms:

“IT IS HEREBY ORDERED THAT:

1. The disciplinary hearing held against the applicant be and is hereby set aside to allow a de novo hearing and the suspension letter dated 13 April 2010 remains in force.

2. The arbitration proceedings before Arbitrator M. Dangwa be and is (sic) hereby withdrawn.

3. A fresh disciplinary hearing shall be held before Mr J. T. Mawire as the hearing officer and the parties shall share the costs of the hearing officer equally.

4. The issue of whether the applicant should be paid between the period of April to October 2010 is reserved for ruling by the court after receiving submissions from the parties legal practitioners before close of business on 29 October 2010.”

I note in passing that J. T. Mawire was appointed as a “hearing officer” by consent of the parties.

The earlier disciplinary proceedings were abandoned in favour of a hearing de novo before a different hearing officer, J. T. Mawire, who was appointed “to hear and determine the matter in terms of the Code.”

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's urgent chamber application wherein she sought an interdict to prevent the first respondent (the President) from establishing a Tribunal in terms of section 187(3) of the Constitution of ...

FACTUAL BACKGROUND

The appellant is a former judge of the High Court of Zimbabwe having been removed from office by the President on the recommendations of a Tribunal he set up.

What led to the intended establishment of the Tribunal were complaints relating to the appellant's performance as a judge.

In particular, the complaints related to her work output, which was deemed unsatisfactory and below the expected standard. One of the complaints was that the appellant issued a review judgment in respect of criminal proceedings without having properly perused the record of proceedings. As a consequence, she ordered the release, from prison, of a person who had previous convictions which militated against his release.

The position of the fourth respondent, Judicial Service Commission (JSC), was that the appellant's conduct, inter alia, amounted to gross misconduct and/or gross incompetence warranting the referral of the matter to the President in terms of section 187(3) of the Constitution.

It is common cause, that, by letter dated 15 September 2020, the appellant was advised by the Judicial Service Commission (JSC) that she was under investigation for impeachable acts of misconduct.

In response, the appellant's erstwhile legal practitioners, in a letter dated 30 September 2020, wrote back to the Judicial Service Commission (JSC) indicating that the appellant was not obliged to respond to that matter. Their view was that the JSC had no legal authority to deal with the complaints raised against the appellant and that the second respondent (Chief Justice) had no authority to direct the JSC to attend to any complaints against a sitting judge of the High Court.

Further, the letter highlighted, that, in any event, it was premature for the Judicial Service Commission (JSC) to invoke section 187(3) of the Constitution before compliance with the provisions of the Judicial Service (Code of Ethics) Regulations SI107 of 2012 (Code of Ethics).

Consequently, the Judicial Service Commission (JSC) resolved that the question of the appellant's removal from office ought to be investigated by a Tribunal appointed to inquire into the matter in terms of section 187(3) of the Constitution.

It advised the appellant of this resolution by letter dated 12 October 2020.

A day after receipt of the letter, the appellant, through her erstwhile legal practitioners, filed an urgent chamber application under case number HC6128/20 which she subsequently withdrew.

On 26 October 2020, the appellant, through her current legal practitioners, filed yet another application through the chamber book, seeking the Provisional Order which is the subject matter of this appeal. The Provisional Order sought reads as follows:

“INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

1. Pending the final determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal in the absence of due process, the first respondent be is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to here above is already set up by the first respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal.

TERMS OF THE FINAL ORDER SOUGHT

That the first, second, third, fourth, and fifth respondents show cause to this Honourable Court why a final order should not be granted in the following terms:

1. The fourth respondent's decision advise to the first respondent to set up a Tribunal to inquire into the question of whether the applicant should be removed as a judge be and is hereby declared unlawful and set aside (sic).

2. It is hereby declared that any disciplinary action against the applicant must be done in compliance with Statutory Instrument 107 of 2012 being the Judicial Services (Code of Ethics) Regulations, 2012 as read with the Constitution of Zimbabwe.”

PROCEEDINGS IN THE COURT A QUO

At the commencement of the proceedings, the fourth respondent (Judicial Service Commission) raised five points in limine which the second and third respondents (Chief Justice and Judge President of the High Court) associated themselves with.

The appellant also raised a point in limine.

On the merits, the appellant contended that she managed to satisfy all the pre-requisites for the granting of an interim interdict. She argued that a proper construction of section 187(3) and section 190(4) of the Constitution, as well as Part III of the Judicial Service (Code of Ethics) Regulations, S.I.107 of 2012 (Code of Ethics) reveals that a judge accused of any act of misconduct is entitled to be subjected to the provisions of the latter enactment before any contemplated referral to the President can be done.

The appellant submitted, that, the interpretation given by the Judicial Service Commission (JSC) to section 187(3) of the Constitution, to the effect that it is empowered to refer such a matter directly to the President without resorting first to the Judicial Service (Code of Ethics) Regulations, SI107 of 2012 (Code of Ethics) will have the effect, inter alia, of not only eroding the independence of the judiciary but also negates the very notion of security of tenure of the judges, deprives the appellant of her right to administrative justice as enshrined in section 68 of the Constitution, results in the negation of her right to protection against unfair discrimination and equal protection of the law in that other judges accused of misconduct were subjected to the Code of Ethics, and, finally that the procedure adopted by the JSC attenuates the principle of certainty in that whereas some judges are first subjected to the Judicial Service (Code of Ethics) Regulations, others, like herself, do not get to enjoy that “two- rung” process.

The appellant further contended, that, the Judicial Service (Code of Ethics) Regulations, SI 107 of 2012 (Code of Ethics) was a direct consequence of section 190(4) of the Constitution.

She also contended, that, the gravity or nature of the alleged infraction was immaterial and irrelevant in so far as the procedure to be followed is concerned.

In her view, the provisions of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) are prescriptive and no departure therefrom is permissible. No distinction is drawn, in terms of the legislation and as far as procedure is concerned, between the disciplinary action against judges in terms of the Code of Ethics vis a vis their removal from office as the latter is a species of the former.

The Judicial Service Commission (JSC), per contra, contended that it did no more than what section 187(3) of the Constitution entitled it to do.

It disputed the interpretation given to the said provision by the appellant and argued that impeachable conduct referred to the President does not have to be preceded by proceedings under the Judicial Service (Code of Ethics) Regulations, S.I. 107 of 2012 (Code of Ethics).

Furthermore, the respondents submitted that it was clear ex facie the record that the appellant was potentially guilty of gross misconduct, or, in the alternative, gross incompetence, and, as such, the existence of a prima facie case against her meant that the provisions of section 187(1)(a) and (b) as read with section 187(3) of the Constitution had been properly triggered by the Judicial Service Commission (JSC).

It was their submission, that, the aforementioned sections relate to impeachable conduct and thus it had a basis to refer the matter to the President.

DETERMINATION BY THE COURT A QUO

The court a quo, in a well-reasoned judgment, dismissed all the preliminary points raised by the Judicial Service Commission (JSC) and the appellant.

None of the parties appealed against the court a quo's dismissal of the points in limine.

It will therefore, not be necessary, for the determination of this matter, to relate to the findings of the court a quo on the preliminary points.

On the merits, the court a quo held that in so far as the procedure for dealing with judges accused of acts of misconduct is concerned, section 187(3) of the Constitution and Part III of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) provide distinct dichotomous routes.

The court held, that, section 187 is principally aimed at investigating the suitability or otherwise of the imperiled judge in continuing to hold office in light of the alleged acts of misconduct and the Code of Ethics is mainly aimed at some other disciplinary measures short of removal from office.

It was the court's position, that, the applicability of the abovementioned provisions is a question that is dependent on the gravity of the offence.

It held that the use of the words “gross incompetence” and “gross misconduct” in section 187(3) of the Constitution, which words are absent in section 21 of the Code of Ethics, conveys the notion that it is reserved for indiscretions that are deemed serious. The court concluded, on this point, by finding that:

“The appellant's argument that no distinction can and should be drawn between 'disciplining' of judges and 'removal' of judges cannot be sustained because a reading of those sections clearly conveys such a distinction.”

The court also opined, that, the fact that the outcomes of the two procedures are different lends further credence to the existence of the dichotomy. Whereas, the outcome under section 187 of the Constitution is the possible removal of a judge from office, under the Code of Ethics, there are various possible outcomes.

The court a quo further held, that, if the procedure under the Code of Ethics was meant to be antecedent to the referral in terms of section 187(3) of the Constitution, then, either the Constitution or the Code of Ethics, or both, would have said so.

Sections 21, 24, 25, and 26 of the Code of Ethics make it clear that they are subject to the Constitution.

Further, the Sixth Preamble to the Code of Ethics clearly conveys the meaning that the Code of Ethics was intended to plug the lacuna obtaining before its promulgation, namely, that there was no formal complaints mechanism for conduct falling short of impeachable conduct.

The court also noted that subsection (3) of section 24 of the Code of Ethics makes it clear that nothing contained in it shall be construed as taking away or derogating from the powers bestowed upon a person to make a direct referral for impeachable conduct.

It further found, that, in any event, the Code of Ethics was promulgated in 2012, and, therefore, predates the current Constitution which came into effect a year later.

Concerning the allegations of bias, mala fides, and non-observance of the audi alteram partem rule levelled against the second, third, and fourth respondents (Chief Justice, Judge President of the High Court and the Judicial Service Commission) in handling her matter, the court a quo made a finding that the appellant rejected the invitation to respond to the complaints against her, and, thus, cannot claim that her right to be heard was violated.

To that end, the court a quo held that the appellant did not manage to establish a prima facie right let alone a clear one entitling her to be subjected to the Code of Ethics first before a referral as contemplated under section 187(3) of the Constitution.

In light of that, the court a quo held that it was not necessary to interrogate the remaining requirements for an interim interdict as the application before it did not establish a prima facie right.

In accordance with the above findings, the court a quo dismissed the application with costs.

Aggrieved by the decision of the court a quo, the appellant noted an appeal on the following grounds:

“1. The court a quo erred and misdirected itself in placing reliance on section 187(3) of the Constitution when the principle of subsidiarity required that reliance be on the Judicial Service (Code of Ethics) Regulations 2012 in taking any disciplinary measures against the appellant.

2. The court a quo erred and misdirected itself when it held that the Judicial Service (Code of Ethics) Regulations 2012 is aimed at some disciplinary measure other than the removal of a judge from office but also holding that the outcome of a disciplinary process instituted under the Judicial Service (Code of Ethics) Regulations, 2012 may result in a referral in terms of section 187(3) of the Constitution.

3. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution 2013 and Part III of the Judicial Service (Code of Ethics) Regulations 2012 provide for different procedures for dealing with the question of misconduct of a sitting judge of the High Court when such distinct procedures are not contained in the Constitution and the Judicial Service (Code of Ethics) Regulations 2012.

4. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution is reserved for transgressions that are deemed serious and that the Judicial Service (Code of Ethics) Regulations 2012 is reserved for minor transgression when such a distinction is not contained in either the Constitution, the Judicial Services Act, or the Judicial Service (Code of Ethics) Regulations 2012.”

She sought the following relief;

“1. That, the instant appeal succeeds with costs.

2. That, the judgment of the court a quo be set aside and the following be substituted in its place and stead;

'1. Pending the final determination of the legality of 4th respondent's decision to advise the 1st respondent to establish a tribunal in the absence of due process, the 1st respondent be and is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to hereabove is already set up by the 1st respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the 4th respondent's decision to advise the 1st respondent to establish a tribunal.

3. That this matter be and is hereby remitted to the High Court for continuation of proceedings on the return date.'”

In the concluding paragraph in her heads of argument, the appellant's position was as follows:

“In light of the above, the appellant prays that the appeal succeeds with costs. However, in light of the fact that the interim relief sought has been overtaken by events, it is prayed that the judgment of the court a quo be set aside and the matter be remitted back to the court a quo for determination of the final relief sought.”…,.

SUBMISSIONS ON APPEAL

At the hearing of the appeal, the court asked counsel for the appellant to first address the court on the question whether the matter before the court had become moot first before addressing the merits of the matter.

The request was made on the basis, that, on the recommendation of the Judicial Service Commission (JSC), the President constituted a Tribunal to consider the removal of the appellant from office. The Tribunal has already conducted investigations and held an inquiry which consequently led to the removal of the appellant from the office of a judge.

Counsel for the appellant submitted, that, the issue of mootness did not arise in the present appeal.

It was her submission, that, when the President acted upon receipt of the referral, he did so in the belief that all due and proper processes had been followed as provided for in the Judicial Service (Code of Ethics) Regulations (Code of Ethics). If those processes were not followed, and the necessary transparent investigations carried out, the referral would have been invalid and everything that followed would be invalid. As such, the matter cannot be moot.

Notwithstanding her submissions that the matter was not moot, and despite the concession in the Heads of Argument, counsel for the appellant submitted that mootness is not a bar to hear a matter. The court retains a discretion to hear the merits of the appeal if it is in the interests of justice to do so. In casu, it was particularly important for the court to give guidelines for referral of a judge to the President.

For authority she relied on the case of Francis Bere v Judicial Service Commission & Ors SC01-22 where this Court proceeded to hear the appeal on the merits after having made a finding that the appeal was moot.

She further submitted, that, in that case, the provisions of the Code of Ethics had been followed. There had been participatory investigations by a panel of three judges which was set up in terms of the Code of Ethics.

On the merits, counsel for the appellant submitted, that, the Code of Ethics was not adhered to, therefore, all the proceedings thereafter were void.

It was her submission that in terms of the principle of subsidiarity, the appellant ought to have been subjected to the subsidiary legislation, therefore, the second respondent ought to have followed the procedure in the Code of Ethics before looking for recourse to the Constitution.

She further submitted, that, the second respondent did not conduct an investigation and failed to ensure that all processes before the referral were followed.

She also submitted, that, the court a quo erred in relying on the constitutional provisions on the investigative part of the proceedings. She maintained that if the legislature intended that there be two processes, one for serious infractions, and the other for non-serious infractions, it would have said so.

Finally, counsel made an application to amend the relief sought. She moved the court to grant an order declaring that the removal of the appellant from office was a nullity.

Per contra, counsel for the first and fifth respondents submitted that the relief the appellant was seeking in the instant appeal had been overtaken by events.

It was his submission that the Tribunal appointed by the President had duly carried out its Constitutional mandate resulting in the removal of the appellant from office. He further submitted that the appellant has taken those proceedings on review in the High Court. She has also filed an appeal in the Labour Court against the decision of the President to remove her from office.

Counsel for the second, third, and fourth respondents submitted that the test in respect of mootness is factual.

That the appellant was no longer a judge of the High Court is a fact. The question is not whether the matter is moot or not because on the facts the matter is moot.

The question should be whether this Court has a basis of exercising its discretion, in the interests of justice, to still hear the matter. He submitted that the following points militate against the exercise of that discretion.

(i) Firstly, the appellant voluntarily attended the Tribunal and fully participated in its enquiry. The Tribunal completed its work and the legal process of her removal from office has occurred. The appellant continues to seek legal remedies in other courts, namely, in the High Court and the Labour Court.

(ii) Secondly, when the appeal was filed, it was open to the appellant to seek an expedited hearing. He submitted that no effort was made to seek such an expedited hearing of the matter, as provided in the Rules, and secure the relief she seeks in her notice of appeal. As a result, this Court is unable to grant the relief sought by the appellant.

(iii) Thirdly, the Judicial Service Commission (JSC) advised the appellant of the complaints against her, provided her with the details of the complaints, and invited her to comment. The appellant, through her erstwhile legal practitioners, took a position that she had no obligation to address the complaint. As a result, the JSC resolved to refer the matter to the President in terms of section 187(3) of the Constitution. The actions of the JSC are unimpeachable. This Court cannot issue a declaratur nullifying the actions of the JSC. He concluded by submitting that there was nothing exceptional about this case warranting this Court exercising its discretion to hear this moot case.

On the merits, counsel submitted that the Code of Ethics makes it clear that it does not purport to supersede section 187(3) of the Constitution. The Code of Ethics recognises the supremacy of the Constitution, in particular sections 21, 24, 25 and 26 of the Code. He further submitted that the Code is limited to administrative complaints and impeachment processes are dealt with in terms of section 187(3) of the Constitution.

DETERMINATION OF THE QUESTION OF MOOTNESS

The appellant approached the court a quo in an urgent chamber application seeking the Provisional Order outlined above.

As is clear from the Provisional Order, the appellant sought, in the interim, an interdict preventing the President from setting up a Tribunal to investigate the removal of the appellant from office and in the event that it had already been set up, an order staying the proceedings of such Tribunal.

It is common cause that the Tribunal was set up, executed its mandate, and the appellant was removed from being a Judge of the High Court in terms of section 187(3) of the Constitution.

It is on this basis that the respondents take the position that the appeal before the court has been overtaken by events.

At this point in time, it is appropriate to deal with the doctrine of mootness as I believe it could be dispositive of this instant appeal.

THE LAW ON MOOTNESS

A matter is moot if the dispute becomes academic by reason of changed circumstances, thus making the jurisdiction of the court unsustainable.

The issue was comprehensively dealt with by the Constitutional Court in Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…, where it held as follows:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic, by reason of changed circumstances, the Court's jurisdiction ceases and the case becomes moot…,.

The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties.

The question of mootness of a dispute has featured repeatedly in this and other jurisdictions.

The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of 'such a nature that the decision sought will have no practical effect or result.'”

The above principle was followed in MDC & Ors v Mashavira & Ors SC56-20…, where it was stated:

“…,. A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties….,. [I]f the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable.”

In ZIMSEC v Mukomeka and Anor SC10-20…, PATEL JA, at pp6-7, set out a two–stage approach in determining whether or not an appeal is moot. The learned Judge cited the Supreme Court of Canada, in Borowski v Canada (Attorney General) [1989] 1 SCR 342, where it was held that:

“It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case.”

In respect of the second stage of an inquiry on mootness, PATEL JA held, at p7, that:

“The next step in the analysis is to decide whether or not the court should exercise its discretion to hear the case. In that respect, courts are guided by the rationale and policy considerations underlying the doctrine of mootness: Borowski's case, supra.

The overriding consideration is whether or not it is in the interests of justice to hear a moot case. The factors to be taken into account in that regard were lucidly enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11:

'…,. Discretion must be exercised according to what the interests of justice require.

A pre-requisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.'”…,.

The doctrine is well developed in American law. A case is moot if it:

“…, seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”

See Ex Parte Steel 162 Fed. 694, 701 (N.D.Ala. 1908).

Furthermore, a case is moot:

“If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court, for some other reason cannot operate to grant any actual relief…, and the court is without power to grant a decision.”

See Diamond, Sidney A. “Federal Jurisdiction to Decide Moot Cases” University of Pennsylvania Law Review Vol. 94…,.

Barron and Dienes Barron J (eds) Barron J and Dienes T (eds) Constitutional Law (West St Paul, Min 1995) put it succinctly when they observed that "a case or controversy requires present flesh and blood dispute that the courts can resolve."

In South African Jurisprudence, mootness is when a matter “no longer presents an existing or live controversy”: see National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC)…,.

Section 16(2)(a)(i) of the South African Supreme Court Act provides as follows:

“(i) When, at the hearing of an appeal, the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

It can be gathered from the above authorities that mootness essentially restricts the court's jurisdiction to hear or determine a matter, particularly if giving the judgment in that matter will produce no tangible result but merely an opinion. It is based on the notion that judicial resources ought to be utilised efficiently and not dedicated to advisory opinions.

However, the fact that a matter is moot is not an absolute bar for the court to decide an appeal where the interests of justice so require.

An analysis of decisions in which Zimbabwean Courts proceeded to determine matters despite the fact that they had become moot exposes the application of the foregoing principles.

In the case of Stevenson v Minister of Local Government & Ors 2002 (1) ZLR 498 (S)…, the court heard a matter that was moot for the purpose of determining the party liable to pay costs. SANDURA JA held as follows:

“In the circumstances, the learned judge in the court a quo should have dealt with the issues raised in the appellant's application.

However, it is pertinent to note that after the appeal in this matter had been noted, mayoral and council elections for Harare were held in March 2002. It follows, therefore, that the reason for the appellant's application has now fallen away.

Nevertheless, a determination of the issues raised in the application is essential for the purpose of determining which party should pay the costs of the application in the court a quo….,.”…,.

See also Francis Bere v Judicial Service Commission & Ors SC01-22.

The South African courts have attempted to outline factors to be considered when a court wishes to break through the veil of mootness to decide an appeal that is moot for justice's sake. In VINPRO NPC v The President of the Republic of South Africa & Ors (741/2021) [2021] ZAWHCHC 149 the court opined as follows:

“[50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include -

(a) Whether any order which it may make will have some practical effect either on the parties or on others;

(b) The nature and extent of the practical effect that any possible order might have;

(c) The importance of the issue;

(d) The complexity of the issue;

(e) The fullness or otherwise of the arguments advanced; and

(f) Resolving the disputes between different courts.”

In casu, under the first consideration in the test for mootness, it is apparent from the record that the appellant sought an order in the court a quo interdicting the President from establishing a Tribunal to investigate the question of removing her from office in terms of section 187(3) of the Constitution, and a stay of the Tribunal proceedings in the event that it had already been set up, pending the determination of the legality of the Judicial Service Commission's decision to advise the President to establish a Tribunal.

It is common cause that the Tribunal was set up and its proceedings were conducted and concluded - with the full participation of the appellant.

At this point, the issue of the Judicial Service Commission's referral of the matter to the President, the setting up of the Tribunal by the President, and the legality thereof has undoubtedly been overtaken by events.

The judgment, if rendered in favour of the appellant 'cannot operate to grant any actual relief' to her. There is no longer any 'present flesh and blood dispute that the court can resolve'.

In light of the above, it is my position that the appeal before this court is now moot.

Additionally, the fact that the appellant belatedly sought to amend the relief sought confirms that the matter is indeed moot and the relief sought no more than a brutum fulmen.

It must have been clear to her that it would not be competent for this Court to grant the relief she sought in her Notice of Appeal as conceded in the last paragraph of her Heads of Argument.

The tangible and concrete dispute between the parties had disappeared by the time the appeal was heard rendering the issues academic.

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

This is a partial appeal against the judgment of the Labour Court (the court a quo) LC/H/2/19 dated 7 February 2019. The appeal is against the court a quo's ruling on the question of citation of the parties and the arbitrator's failure to award damages as an alternative to reinstatement....,.BRIEF ...

BRIEF SUMMARY OF THE CASE

The 56 appellants were employed by the respondent, Freda Rebecca Mine Holdings Limited, in various capacities at its mine in Bindura. Owing to virulent economic hardships at the time, the respondent ceased its mining operations sometime in 2008 without terminating the appellants respective contracts of employment.

Sometime in 2009, the respondent sought to resuscitate its mining operations.

In doing so, it unilaterally sought to re-engage the appellants on inferior contracts different from those obtaining as at the time it ceased operations in 2008.

A dispute then arose concerning the appropriate terms of employment upon resumption of mining operations.

Following failure to resolve the dispute, the respondent arbitrarily wrote to the appellants terminating their original contracts of employment.

The termination letters were written on a standard letterhead bearing the name FREDA REBECCA GOLD MINE. The letters were signed by one T Chivonivoni who designated himself/herself as the GENERAL MANAGER-FREDA REBECCA GOLD MINE.

Dissatisfied by the turn of events, the appellants took the dispute to the Designated Agent.

The Designated Agent referred the dispute to conciliation.

Upon failure of the conciliation process, the conciliator issued a Certificate of No Settlement and completed a Reference to Arbitration on a standard form in which he designated the parties as “Freda Rebecca Mine alleged unfair labour practice of E Mapondera and 60 others.”…,.

The reference form is dated 12 May 2010.

It is common cause that the proper citation of the respondent, as a party to legal proceedings, ought to have been Freda Rebecca Gold Mine Holdings Limited.

TERMS OF REFERENCE

The arbitrator's terms of reference were “to determine whether the dismissal of E. Mapondera and 60 others was lawful or not.”

At the hearing before the arbitrator, the respondent took the preliminary objection, that, apart from Edmond Mapondera, the rest of the remaining appellants had no locus standi because their names had not been listed as claimants and E. Mapondera was not authorised to represent them.

Counsel for the appellants argued, that, the respondent had always been aware that the case involved 61 employees whose identities had not been placed in issue at conciliation stage. It was only at the arbitration stage that the respondent belatedly sought to make it an issue.

During the course of the arbitration proceedings, the arbitrator was then provided with a list of the concerned employees comprising a total of 58 claimants. The list of the claimants who were party to the proceedings was availed to the respondent.

The arbitrator dismissed the objection in limine on the ground, that, the appellants had a real and substantial interest in the matter and that right from the initiation of the legal proceedings the respondent knew the identity of its adversaries.

Having dismissed the preliminary objection, the arbitrator proceeded to make an award in favour of E. Mapondera and 57 others on 12 January 2011. The award was couched in the following terms:

“1. That, the claimants are hereby reinstated to their positions without loss of salary and benefits with effect from the date of unlawful dismissal.

2. Each party to meet its own costs.”

Dissatisfied with the arbitral award, the respondent appealed to the court a quo with partial success. It took the following four (4) grounds on appeal:

“1. The Honourable arbitrator unprocedurally accepted evidence submitted by the claimants subsequent to the arbitration hearing in respect of the purported hearing in respect of the purported identity of the innominate (sic) 60 other claimants who had not been included by name in the original claim.

2. The Honourable arbitrator fundamentally misdirected himself in finding, that, since the alleged 60 other employees had a substantial interest in the matter they did not need to be identified and to be made parties in arbitration proceedings before him. The fact that the employees have any kind of interest in the matter did not dispense with the entitlement of the appellant to know who the said appellants were at the commencement and during the course of the proceedings. The production of the names of the employees subsequent to the hearing, and without an opportunity for the appellant to challenge the accuracy of the names and the positions so stated for the employees, violated the appellant's right to a fair hearing before an independent and impartial tribunal.

3. The Honourable Arbitrator fundamentally misdirected himself in failing to find that the contracts of employment for the said employees, E. Mapondera & 60 Others, had terminated by operation of law and the appellant could only re-engage the employees in terms of new contracts of employment. The said former employees, having refused to sign new contracts of employment, the appellant lawfully confirmed the termination of their contracts of employment by operation of law on the 5th of March 2010.

4. The Honourable arbitrator fundamentally misdirected himself in ordering the reinstatement of E. Mapondera & 60 other employees without affording the Appellant an opportunity to pay damages in lieu of reinstatement. The order of reinstatement, without the alternative for the payment of damages, is not consistent with the ordinary rules of the law of contract and the specific circumstances of the appellant.”

THE RELIEF SOUGHT

On the basis of the above grounds of appeal, the appellant sought the following relief:

“(i) That the claimant's claim be and is hereby dismissed.

(ii) Alternatively, that, in the event that the Honourable court finds that the contracts of employment for the Respondents were not lawfully terminated, that the Appellant is hereby directed to pay the Respondents damages in lieu (sic) of reinstatement.

(iii) The Respondents shall pay the costs of suit.”

Upon consideration of the facts and the law, the court a quo found that the arbitration proceedings were a nullity at law because the claimants had cited a non-existent person and that the 2nd to 60th employees were not a party to the arbitration proceedings.

It also found, that, the arbitrator had no discretion to award reinstatement without an alternative of payment of damages for unlawful dismissal. It therefore ordered as follows:

“It is accordingly ordered that -

1. The appeal be and is hereby allowed on grounds 1, 2, 4 and 5.

2. The appeal falls on ground of appeal 3.

3. Overly, the appeal succeeds as the proceedings were a nullity due to wrong identity of the employer.

4. Each party to bear its costs.”

Aggrieved by the above order, the appellants appealed to this Court challenging the court a quo's order on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred at law in finding that the citation of the respondent, through its trade name 'Freda Rebecca Mine' was such an irregularity whose effect rendered the entire proceedings a nullity.

2. The court erred at law in finding that 2nd to 61st appellants were not properly cited before the Arbitrator and that the extent of the impropriety was such that they were all not party to the arbitration proceedings.

3. The court a quo erred at law in finding that the Arbitrator has no power to order an employer to reinstate an unlawfully dismissed employee without giving the same employer the option to pay damages in lieu of reinstatement to the employee.”

On the basis of the above grounds of appeal, the appellants prayed for the following relief:

1. That the appeal succeeds with costs.

2. That the judgment of the court a quo is partially overturned and the order substituted with the following:

“(a) The preliminary point raised by the Appellant relating to its mis-citation be and is hereby dismissed.

(b) The preliminary point raised by the Appellant relating to the proper citation of the 2nd to the 61st Respondents be and is hereby dismissed. The 2nd to 61st Respondents are hereby held to be properly before the court.

(c) The appeal be and is hereby dismissed with costs and the arbitration award be and is hereby upheld.”

ISSUES FOR DETERMINATION

The grounds of appeal raise the following three cardinal issues for determination:

1. Whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.

2. Whether or not the appellants were properly before the Arbitral Tribunal.

3. Whether or not it was proper for the Arbitral Tribunal to order reinstatement of the appellants without an alternative of payment of damages in lieu of reinstatement.

ANALYSIS AND DETERMINATION OF THE ISSUES

It is pertinent to note at this juncture, that, the judgment appealed against in this case is, to a large extent, grounded on legal technicalities.

A lot of industry has been expended by learned counsel in placing reliance on procedural legal technicalities that are best suited for courts of law rather than arbitral tribunals.

It is trite that the object of arbitral tribunals is to do simple justice for the common person without being shackled by legal technicalities and formalities pertaining to an ordinary court of law. To this end, in arbitration, the rules of procedure are often relaxed and the arbitrator has a wide discretion provided that justice can be attained without doing violence to the basic tenets of natural justice.

Likewise, section 90A of the Labour Act [Chapter 28:01] is meant to unshackle the court a quo from the vice grip of rigid legal rules, formality, and technicalities. It provides as follows:

“90A Procedure and evidence in the Labour Court

(1) The Labour Court shall not be bound by the strict rules of evidence, and the court may ascertain any relevant fact by any means which the presiding officer thinks fit and which is not unfair or unjust to either party.

(2) Evidence may be adduced orally or in writing in any proceedings in the Labour Court, at the discretion of the presiding officer.

(3) The parties or their representatives to any proceedings in the Labour Court shall be entitled to question or cross-examine each other or any witness.

(4) It shall be the responsibilities of the presiding officer to ascertain the facts in any proceedings in the Labour Court, and, for that purpose, he or she may —

(a) Call any party or his or her representative;

(b) Question or cross-examine any party or his or her representative or witness; and

(c) Put any question to a party or his or her representative or witness which is suggested to him or her by any party.”

It is self-evident that section 90A of the Labour Act distinguishes ordinary courts of law from the Labour Court as a special court. The law maker therefore saw it fit to confer the court a quo with a wider discretion than that obtaining in the ordinary courts of law in order to do simple industrial justice.

Because of their legal training and the involvement of lawyers, Labour Court judges often stray into the morass of legal jargon and technicalities much to the bewilderment of the unsophisticated litigants. This unwelcome tendency has the undesirable effect of mystifying industrial legal proceedings thereby clouding the dispensation of industrial justice. It therefore acts as a barrier to accessing industrial justice.

This prompted McNALLY JA in Dalny Mine v Banda 1999 (1) ZLR 220 (S) to remark that:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that such irregularities should be put right.”

In Edmore Taperesu Mazambani v International Trading Company (Private) Limited and Anor SC88-20 MATHONSI JA had occasion to make similar remarks when he said:

“This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities.”

It is therefore clear from the authorities, that, the primary function of the court a quo is to do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law are beginning to mellow and drift towards the idea of correction of simple procedural errors in order to do real and substantial justice.

When interpreting statutes and codes of conduct, the court a quo should endeavour to give a broad liberal interpretation that is not embroiled in flimsy legal technicalities in order to achieve social justice based on equitable labour standards.

On that score, I now proceed to determine whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.

WHETHER OR NOT THE ALLEGED IMPROPER CITATION OF THE RESPONDENT RENDERED THE ENTIRE PROCEEDINGS A NULLITY

Generally speaking, it is undisputable and a matter of trite elementary law, that, one cannot sue a non-existent person.

In the leading case of Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) the High Court had occasion to remark that:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

That proposition of law was cited with approval by this Court in Fadzai John v Delta Beverages SC40-17 and a host of other cases cited by the respondent from both local and foreign jurisdictions. It is thus settled law and a matter of common sense that one cannot sue a non-existent person.

The main distinguishing feature in this case is that arbitral proceedings are different from trial proceedings in courts of law.

Sight should therefore not be lost that trial proceedings in a court of law are commenced by summons drafted by the plaintiff. On the other hand, arbitral proceedings are commenced by a reference drafted by the conciliator in terms of the Labour Act. The claimant has no control over the drafting of the reference to arbitration whereas the plaintiff has full control over the drafting of the summons.

It would therefore seem unfair and unjust to penalise the claimant for the sins of the conciliator in crafting the reference.

Counsel for the appellants further argued, that, where there is a person who actually exists who is sued in their colloquial, nickname, or some other informal name, an amendment is permissible to formalise or regularise the citation.

For that proposition of law, he placed reliance on the South African case of Four Tower Investments (Pty) Ltd v Andre's Motors 2005 (3) SA 39 (N) among others.

In that case, shortly before the hearing of the appeal it was discovered, that, in the summons and particulars of claim, the plaintiff had been incorrectly cited and referred to as a company called Four Tower Investments (Pty) Ltd whereas it had been at all times a close corporation called Four Tower Properties CC. In the lease agreement, which was the subject of the dispute between the parties, it was also referred to as a company.

The letting agent was responsible for the mis-description.

Following an application for an amendment to regularize the citation, the court held that under the circumstances, an amendment was permissible. The headnote reads:

“An application for an amendment would always be allowed unless it was made mala fide or would cause prejudice to the other party which could not be compensated for by an award of costs or by some other suitable order such as a postponement: (At 43H).

Held, further that there had been a gradual move from an overly formal approach, and, in line with this approach, courts should be careful not to find prejudice where none really exists: (At 44I-J).

Held further, that the fact, on its own, that the citation or description of a party happened to be of a non-existent entity should not render the summons a nullity.

Held further, that in the present case the citation of the plaintiff had been nothing more than a mis-description and the application for amendment had to be allowed: (At47F).”

It is needless to say that Four Tower Investments (Pty) Ltd v Andre's Motors 2005 (3) SA 39 (N) is on all fours with the instant case. The judgment is grounded on sound logic and meets the ends of justice between litigants.

Back home, in Muzenda v Emirates Airlines & Others HH775-15 the Emirates Airlines had been mis-described as Arab Airlines. In allowing the amendment to regularize the name, MATANDA MOYO J had this to say:

“I am of the view that the description of a party to a suit does not immutably determine the nature and identity of a party. The Law Reports are full with instances where the correct description of a party was allowed, in the absence of prejudice to the other party involved. This would be done after an application to amend.

The plaintiff herein was not diligent.

After being advised of the wrong citation of first defendant, all she had to do was apply for amendment. I would have granted such amendment as I am of the view that there was no prejudice to first defendant.

However, the court can only do so upon asking. The court cannot mero motu grant orders not sought.

Without such amendment, the first defendant remains wrongly cited: see ZFC Ltd v Taylor 1999 (1) ZLR 308 and Order 20 Rule 132 and 134 of this court's rules; Commercial Union Assurance Company Limited v Waymark NO 1995 (2) SA.”

The learned judge beautifully articulates the law in circumstances that are on all fours with the case at hand.

In the same vein, in Masuku v Delta Beverages 2012 (2) ZLR 112 (H) the same court held that:

“…, generally, proceedings against a non-existent entity are void ab initio and thus a nullity. However, where there is an entity which, through some error or omission, is not cited accurately, but where the entity is pointed out with sufficient accuracy, the summons would not be defective.”

I could go on and on, but, the principle of law established by case law is clear.

Where an existing entity is inadvertently mis-described in judicial proceedings it is permissible to apply for correction of the anomaly in good faith provided that there is no irreparable prejudice to the other party.

It is common cause, that, taking a cue from laid down precedent, the appellants successfully applied to the court a quo, before the same judge, for an amendment of the citation of the respondent's name. He granted the order on 31 May 2018 under order number LC/MD/ORD/78/2018. It reads:

“It is ordered that:

1. The application to amend the citation of the respondent be and is hereby granted.

2. Each party is to bear its own costs.”

It is amazing, that, when the matter came up for hearing on the merits, the same judge held that the proceedings before the arbitrator were a nullity because the appellants had sued a non-existent person.

This was clearly a serious misdirection considering that the honourable judge was bound by his earlier order that had regularised the incorrect citation of the respondent.

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA
Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 7 July 2022 in which it declined to assume jurisdiction in respect of an application filed by the appellant for the review of the recommendations of the second, third and fourth ...

FACTS

Until 17 June 2021, the appellant was a sitting Judge of the High Court. She was removed from that office by the first respondent, the President of the Republic of Zimbabwe, acting in terms of section 187(8) of the Constitution of Zimbabwe 2013 (“the Constitution”).

Whenever the question of the removal of a sitting Judge arises, the Judicial Service Commission informs the first respondent, who, in terms of section 187(3) of the Constitution, is required to appoint a Tribunal to inquire into that question.

The second, third, and fourth respondents are members of the Tribunal appointed by the first respondent to inquire into the question of removing the appellant from the office of Judge of the High Court.

The salient facts are generally not in dispute and may be traced back to 9 October 2020, on which date the Judicial Service Commission advised the first respondent that a question of whether the appellant had to be removed from the office of Judge of the High Court had arisen.

On 5 November 2020, by dint of Proclamation 7 of 2020 published in Statutory Instrument 261B of 2020, the first respondent established a Tribunal constituted by the second, third, and fourth respondents to inquire into the aforementioned question of the removal from office of the appellant.

The Tribunal would conduct its business for a period of five months, from the date of the swearing in of its members.

The members of the Tribunal were duly sworn in on 18 November 2020, thereby triggering their mandate.

On 8 December 2020, the Tribunal served the appellant with a letter informing her of the matters into which it would inquire, chief among which was whether she had been grossly incompetent in performing or omitting to perform the acts mentioned in that letter.

The particulars of the matters into which the Tribunal would inquire are not germane to the resolution of this appeal.

The hearing before the Tribunal commenced on 18 March 2021 and was concluded on 22 April 2021 after several witnesses, and the appellant herself, had presented evidence.

The parties appearing before the Tribunal were thereafter requested to file their closing submissions, with the appellant being requested to submit her final response on 4 May 2021.

On 17 June 2021, having concluded its investigations, the Tribunal presented its recommendations to the first respondent.

The Tribunal found the appellant guilty of gross incompetence.

By letter of the same day, the Chief Secretary to the President and Cabinet advised the Honourable Chief Justice of Zimbabwe, that, the Tribunal had recommended the removal of the appellant from office for gross incompetence and that the first respondent had accordingly removed the appellant from office.

PROCEEDINGS BEFORE THE COURT A QUO

Against this background, the appellant harboured grievances. On 25 August 2021, she filed a court application for review in terms of sections 26 and 27 of the High Court Act [Chapter 7:06] as read with Rule 60 of the High Court Rules 2021. The appellant advanced multiple grounds of review.

Among the grounds was that the Tribunal had no jurisdiction to inquire into the question of her removal after 18 May 2021 since its five-month tenure had lapsed.

She added, that, it was grossly irregular for the Tribunal to disregard her preliminary objections on the basis of what had occurred during an earlier inquiry involving the removal of another Judge and not during her own inquiry.

It was also contended, that, it was a gross irregularity for the Tribunal to find her guilty of gross incompetence when she had not been charged with such a misconduct....,.

All in all, the appellant advanced no less than eight grounds of review...,.

the appellant made reference to section 190(4) of the Constitution intending to explain that the Tribunal ignored the preliminary point that she raised.

As a preliminary point, she had argued that she was first supposed to be subjected to the constitutional disciplinary procedure provided for in section 190(4) of the Constitution before the Tribunal could proceed to enquire into the matters that were before it.

The appellant also referred to section 69 of the Constitution, suggesting that the preliminary points she raised were of crucial importance to her right to a fair hearing before an independent and impartial Tribunal....,.

The appellant also made reference to section 56 of the Constitution in paragraph 15.5 of her founding affidavit to support her contention that the Tribunal did not consider the preliminary objection that the Judicial Service Commission submitted her matter to the first respondent without following the provisions of Statutory Instrument 107 of 2012.

She sought to make the point, that, the same provisions were followed in the case involving Mr Justice Bere who had earlier on been subjected to an inquiry.

Thus, reference to section 56 of the Constitution was intended to demonstrate, bearing in mind the imperativeness of the right to equality, that the Tribunal failed to pronounce on an important preliminary point....,.

On the allegation that she was not given a right to address the Tribunal in mitigation and to be heard on the appropriate penalty, the appellant averred in paragraph 14.7 of her founding affidavit that:

“The 1st Respondent was misled when the Tribunal members claimed that there were no extenuating circumstances when these could not be considered in the absence of a hearing in mitigation.”

On that score, she added that the recommendations to the first respondent, and his subsequent decision, ought to be set aside because he “ought only to act on recommendations properly reached after following due legal process.”

On the failure to determine the preliminary points she raised before the Tribunal, the appellant avowed that such a failure constituted a gross irregularity that vitiated the recommendation by the second, third, and fourth respondents as well as the subsequent decision of the first respondent.

This is set out in paragraph 15.7 of the appellant's founding affidavit.

Thereafter, the appellant canvassed the allegation that she was not provided with documents that would be relied on during the Tribunal proceedings. On that point, she concluded in paragraph 17 of her founding affidavit thus:

“It is my view that I have made a case for the review of the recommendations of the 2nd, 3rd, and 4th Respondent to be set aside, together with the subsequent decision of the 1st Respondent on this additional ground.”...,.

Essentially, the appellant argues that the decision of the first respondent is invalid simply because it is predicated upon recommendations that are null and unlawful due to the procedural irregularities cited.

It is trite that if an act is a nullity, then, nothing can stand on it.

Thus, taken to its logical conclusion, the appellant's basis for impeaching the first respondent's decision is that his decision is invalid since there were no lawful and valid recommendations in terms of which a decision could be taken, as stipulated by section 187(8) of the Constitution.

Whether the recommendations of the second, third, and fourth respondents are null and unlawful is a question that has not been adjudicated upon and determined. They can only be regarded as such when so declared by a court of competent jurisdiction.

They are presumed to be valid. As things stand, the recommendations are only voidable.

In this regard, the famous remarks of LORD DENNING, in MacFoy v United Africa Company Limited [1961] 3 All ER 1169 (PC)…, remain true:

“But, if an act is only voidable, then, it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the Court setting it aside: and the Court has discretion whether to set it aside or not. It will do so if justice demands but not otherwise. Meanwhile, it remains good and a support for all that has been done under it.”...,.

Drawing on an analogy of the facts in the case of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20, counsel for the appellant correctly argued, that, it is possible for an act, law, conduct, or decision to be set aside even after it has been concluded or finalised.

SC48-13 : STANLEY MAJURIRA vs TREDCOR (ZIMBABWE) (PVT) LTD
Ruled By: PATEL JA

The applicant in this matter was employed by the respondent as a Branch Manager. On 11 March 2011, he received a letter of final warning from a Senior Branch Manager (Mrs. Maisiri) arising from an allegation of dishonesty pertaining to an altered order for fuel. Subsequently, at 15.35 p.m. on 5 April 2011, he was given notice to attend a disciplinary hearing to be held on 8 April 2011 at 10.00 a.m. in relation to the same matter. The notice was written by the General Branch Manager (Mr. Goddard) who explained that the hearing was necessitated by “a conflict in the facts provided” to him.

On the date of the hearing, Mr. Goddard presided over the proceedings.

Thereafter, the applicant was found guilty on the allegations levelled against him and consequently dismissed.

The applicant then filed an application for review of the disciplinary proceedings before the Labour Court in Case No. LC/REV/H/36/11 (It is not clear from the papers why he did not appeal against his dismissal). The grounds for review were that:

(i) He was given inadequate notice of the hearing;

(ii) That Mr. Goddard was both the complainant and adjudicator;

(iii) That the minute taker was a junior; and

(iv) That he was punished twice for the same offence.

The Labour Court considered and rejected all of these grounds as being without merit and dismissed the application for review with costs. A subsequent application to the same court for leave to appeal was also dismissed in October 2012.

The applicant now seeks leave to appeal to this Court on the following four grounds:

(i) He was punished twice for the same offence;

(ii) He was not given three days to prepare for the disciplinary hearing;

(iii) The complainant was also the hearing authority;

(iv) The Labour Court ordered costs against him even though they were not sought by the respondent.

With respect to the first ground, he contends that the initial letter of warning constituted a final penalty for the offence in question and was never withdrawn or set aside before the hearing was instituted.

The respondent's position is as follows.

The letter of warning was not written pursuant to any hearing and was therefore of no consequence. The Labour Court properly found that two and a half days' notice was in substantial compliance with the notice requirement. Mr. Goddard was not the complainant and did not carry out any investigations. For these reasons, the Labour Court's decision was correct, and, therefore, this application should be dismissed….,.

MERITS OF GROUNDS OF APPEAL

Before dealing with the merits of the intended appeal, it is necessary to consider the nature of the relief sought by the applicant.

The order that he seeks, both before the Labour Court, and on appeal to this Court, is that his dismissal be set aside and that he be reinstated without loss of salary or benefits with effect from the date of dismissal.

In the event that the grounds of review or grounds of appeal are upheld, the appropriate relief would not be reinstatement but remittal to the respondent in order to correct all the alleged irregularities and institute fresh disciplinary proceedings thereafter.

In this regard, I fully agree with counsel for the respondent that the relief sought by the applicant is irregular and incompetent.

SC02-16 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs RONALD GODIDE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

The law is settled that labour disputes should not be delayed through the consideration of issues of a technical nature but should be resolved on substantive issues.

SC62-17 : PAUL GARWE vs THE PUBLIC SERVICE COMMISSION
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA JA

This is an appeal against a decision of the Labour Court which dismissed an appeal against the appellant's dismissal from employment.BACKGROUNDThe appellant was employed by the respondent as the Senior Payroll Clerk in the Audit Division of the Salary Services Bureau. Sometime in 2002, the appellant applied for a loan ...

This is an appeal against a decision of the Labour Court which dismissed an appeal against the appellant's dismissal from employment.

BACKGROUND

The appellant was employed by the respondent as the Senior Payroll Clerk in the Audit Division of the Salary Services Bureau. Sometime in 2002, the appellant applied for a loan from a moneylender, Dollartech Finance, hereafter referred to as Dollartech. He furnished Dollartech Finance with his pay slip in support of the application. His application was successful and he was granted the loan. Dollartech faced difficulties in having the monthly repayment deducted from the appellant's salary as his net salary was insufficient for the purpose.

The matter was brought to the attention of the respondent by Dollartech Finance. The appellant was charged with misconduct in terms of paragraph 13(d) of the First Schedule (Section 2) of the Public Service Regulations, 2000 - dishonesty including falsifying or attempting to falsify any document with fraudulent intent or uttering forged document. The allegation was that he used a fake September 2002 pay-slip to borrow money from Dollartech Finance and the amount could not be deducted because his net salary was insufficient.

The appellant was called upon to submit a written reply to the allegations. He complied. He wrote a letter on 21 February 2003.

A disciplinary hearing was held on 2 July 2004. The disciplinary committee found the appellant guilty of the misconduct charged and recommended his discharge from employment. The pertinent portion of the record of the disciplinary committee's proceedings reads:

“The Committee noted that:-

(1) Mr Garwe, in his letter of response to the allegations had shown that he felt ashamed of all what happened, he apologized, in the same letter, to the whole Department and Government as a whole for the image that could have been tarnished by his actions. He made an assurance that he would not do it again.(sic)

(2)…,.

(3)…,.

(4)…,.

(5) Mr Garwe's response before the Committee was inconsistent to his letter of response to allegations leveled against him. (sic)….,.

The committee found Mr Garwe guilty of an act of misconduct of dishonesty including falsifying or attempting to falsify any document with fraudulent intent or uttering forged document. This is in terms of section 13(d) of the First Schedule (Section 2) of the Public Service Regulations 2000. (sic)

Committee's Recommendations

The Committee recommended that Mr Garwe be discharged from the Public Service Commission Secretariat.”

After the disciplinary committee hearing, the appellant allegedly fell ill from August 2004 until sometime in early 2005. During this period of illness, and specifically on 29 October 2004, the appellant submitted a letter from his doctor to his employer, requesting early retirement on medical grounds.

On 11 May 2005, the appellant received a letter of even date by the Salary Services Bureau informing him of the decision of the employer, following the disciplinary hearing of 2004, to dismiss him from the Public Service. The final paragraph of the letter advised the appellant as follows:

“Section 51(1)(b) of the Public Service Regulations 2000 provides that if you are not happy with this determination and penalty, you are free to either appeal against this determination and penalty or both to the Labour Relations Tribunal or request the Commission, in writing, through the Secretary, to review the determination or penalty or both within 21 days of this minute.”

The appellant requested a review of the proceedings.

The appellant's request for review does not form part of the record. His grounds for review are captured in the Public Service Commission's record of proceedings of April 2006 as follows:

“Mr Garwe submitted the following as his grounds for review:-

(a) That there was an inordinate delay in the manner in which the case was handled. He was charged in February 2003, a disciplinary committee was appointed more than a year later and the determination was made in May 2005. This prejudiced him as memories fade and witnesses changed residence;

(b) That the disciplinary committee was chaired by Mr Chitambara who had earlier on received the complaint from Dollartech Finance. He investigated the matter and actually promised the complainant that disciplinary action was going to be taken. He was therefore biased;

(c) That members who constituted the disciplinary committee were appointed by the Secretary to the Commission even though the Commission was not the disciplinary authority;

(d) That the disciplinary committee found him guilty without the production of the alleged fake pay-slip. The pay-slip was not produced as documentary evidence when he was charged and neither was it produced at the disciplinary hearing;

(e) That Salary Service Bureau concerned itself with dishonesty that was not directed at the employer and had not arisen during the course of duty. Further, failure to repay a loan was only misconduct if the loan was owed to the State, a statutory fund or a local authority;

(f) That the department should not have concerned itself with what members do with their pay-slips;

(g) That the misconduct charge was not properly framed to enable him to respond from an informed position. It was not defined how fake the pay slip was and there were no witnesses at the hearing to explain why the pay-slip was thought to be fake;

(h) That a pay-slip just shows how earnings for that month were intended to be disbursed. The disbursement plan could be varied before the pay-slip was issued. The pay-slip therefore did not, as a matter of fact, show what the member's net income for the month or the following months will be. The fake pay-slip did not prejudice the money-lender.”

The record of proceedings also highlights the following:

“Mr Garwe prayed that he be reinstated into the service without loss of benefits. He also urged the department to concentrate on its core business of paying salaries rather than assist debtors of civil servants (sic) to recover monies they are owed.

In a letter dated 20 May 2005, Mr Garwe submitted that his discharge from the service was in complete violation of the recommendations of a Medical Board that had recommended his retirement on medical grounds.”

The Public Service Commission convened to consider the matter, and, on 12 April 2006, the Acting Secretary wrote to him confirming the determination of his guilt and the imposition of the penalty of discharge. The letter reads in part:

“REQUEST FOR REVIEW: MR PAUL GARWE: E.C. NO.1253558 M: FORMER SENIOR PAYROLL CLERK: SALARY SERVICE BUREAU: PUBLIC SERVICE COMMISSION

The above matter refers.

Be advised that the Commission, acting in terms of section 51(3) of S.I.1 of 2000 as amended, confirmed the determination of guilt and the penalty of discharge which was imposed on you.

In arriving at the above decision, the Commission took into account the following:-

(a) That in your response to the misconduct charge, you admitted having submitted a fake pay slip to Dollartech Finance. You submitted that the pay slip had been done by tricksters. The foregoing was considered an unequivocal admission that you deliberately used an incorrect record of your earnings in order to obtain a loan from Dollartech Finance;

(b) That there was no shred of evidence to support the claim that Dollartech Finance had a hand in the misconduct charges that were preferred against you;

(c) That the fake pay slip on record showed that you had a net salary of $48,026=54. However, the correct record of your net salary for September 2002 was $51=53;

(d) That after you had been charged with misconduct on 12 February 2003, you subsequently paid the money that you owed the money lender on 20 February 2003. It was therefore not in dispute that you received a loan from Dollartech Finance. In light of the above, the fact that you were not availed a copy of the fake pay slip which you had submitted to Dollartech Finance and which pay-slip you did not request from the disciplinary authority was considered immaterial and not an irregularity;

(e) That you did not explain why you did not request Mr. Chitambara to recuse himself from the hearing if you were aware that he had investigated your case and could have been partial in the hearing. Furthermore, you did not prove that he was biased as the Chairman of the hearing. Your argument that the Chair of the disciplinary hearing was biased could therefore not be sustained;

(f) That the Commission neither declared itself the disciplinary authority in your case nor did it appoint members of the disciplinary committee which heard your case; and

(g) That you could not be retired on medical grounds before the conclusion of your misconduct case.

There was nothing wrong with the Paymaster, Salary Service Bureau determining your misconduct case before considering the recommendations of the Medical Board.”

Aggrieved by the decision of the Public Service Commission, the appellant appealed to the Labour Court seeking, in his notice of appeal, the relief that the respondent “be compelled to determine whether the appellant is still fit to remain in service and if appropriate retire him on medical grounds.

In his heads of argument before the Labour Court, he sought more extensive relief. He prayed for his appeal to be allowed with costs and for the determination appealed against to be set aside and substituted with a finding that he is not guilty of misconduct; an order that he be paid the full amount of his salary, bonuses and benefits that he ought to have been paid during the period of suspension and discharge; that he be reinstated without loss of salary and benefits or grade and that steps be taken in terms of section 18(5) to retire him from service on grounds of ill health.

The appellant's grounds of appeal in the Labour Court were basically that –

(i) The disciplinary committee was improperly constituted;

(ii) That the Chairperson of the disciplinary committee was biased as he had been involved in the investigation of the matter;

(iii) That his disciplinary hearing was not conducted by a disciplinary authority for the reason that as he was engaged in the middle grade, only the head of Ministry could appoint a disciplinary committee to consider the allegations against him;

(iv) That the respondent had failed to prove its case against him; and

(v) That the issue of the fake pay-slip had nothing to do with his employer or his employment.

It was the appellant's contention that the essential elements of the misconduct with which he was charged were not proved as it was not established that he had been dishonest in the course of his employment or that there had been any prejudice caused as he repaid the loan in full. He further contended that the Public Service Regulations do not concern themselves with misrepresentations that take place outside employment.

Another ground raised by the appellant was that an improper motive had caused or resulted in the charges being preferred against him and contended that this was borne out by the fact that the misconduct process was selectively applied amongst employees who had conducted themselves in a similar fashion.

In his submissions to the Labour Court, the appellant alleged, among other things, that there are about ten other employees who had done exactly what he had done but were still in employment. He is recorded as stating:

“I just want to add that other people are still employed but were also investigated but had done exactly what I did. There are about 10 or so. I actually investigated and I have copies.”…,.

He also alleged that the respondent terminated his employment in order to avoid retiring him on medical grounds.

The Labour Court found that his appeal lacked merit and dismissed it.

THIS APPEAL

Aggrieved by the dismissal of his appeal by the Labour Court, the appellant appealed to this court. His lengthy grounds of appeal raise the following issues to be determined by this court:

1. Whether or not the procedural irregularities raised by the appellant are so fatal as to warrant the disciplinary proceedings being rendered a nullity.

2. Whether or not there was sufficient evidence to prove appellant's guilt and to justify his dismissal.

PROCEDURAL IRREGULARITIES

Authority to discipline a member of the Commission

The functions of the Public Service Commission are provided for in section 8(1) of the Public Service Act [Chapter 16:04]. The section reads:

“Subject to this Act and any other enactment, the functions of the Commission shall be -

(a) To appoint persons to the Public Service, whether as permanent members or on contract or otherwise, to assign and promote them to offices, posts and grades in the Public Service and to fix their conditions of service. …,.

(b) To inquire into and deal with complaints made by members of the Public Service;

….

(e) Subject to Part V, to exercise disciplinary powers in relation to members of the Public Service…,.” …,.

The appellant's post of Senior Payroll Clerk is graded by the respondent as middle grade…,. In his oral submissions before this court, the appellant said that he had merely assumed that as he was a Senior Payroll Clerk and it translated to him being in the senior grade. His assumption was erroneous. In any event, and curiously so, the submission is contradictory of his previous stance in the Labour Court that he was a middle grade employee.

With reference to disciplinary authorities for the different employment levels or grades in the Public Service, section 42 of the Regulations provides as follows:

“(1) The disciplinary authority for the purposes of appointing a disciplinary committee in terms of section 43, determining any allegations of misconduct by a member in terms of section 46 and imposing a penalty in terms of section 50 shall be –

(a) In the case of a member in a senior grade, the Commission;

(b) In the case of a member in a middle grade, the head of Ministry;

Provided that the Commission may determine that it shall be the disciplinary authority in any particular case.

(2) The disciplinary authority for the purposes of sections 44, 47 and 48 shall be –

(a) In the case of a member in a senior grade, the Commission;

(b) In the case of a member in a middle grade, the head of Ministry or the head of office in charge of the member;

The respondent gave a clear explanation of how this provision was adhered to.

The Commission is, for administration purposes, a Ministry in its own right. The authority for this is found in the definition section (section 2) of the Public Service Regulations which states:

“'Head of Ministry', in relation to a member of the Public Service, means the Secretary of the Ministry in which he is employed or the occupier of any other office or post which the Commission, with the concurrence of the appropriate Minister, directs shall constitute his head of Ministry…,.'”

In casu, the Secretary of the Commission holds this post, and, in exercising the role of disciplinarian of middle grade employees, the Secretary appointed a disciplinary committee.

The appellant was charged on 12 February 2003. The committee was appointed on 2 June 2004. It sat on 2 July 2004 and the determination was assented to by all the members in August 2004.

The appellant never challenged the disciplinary authority at the hearing. He subjected himself to it. If he had challenged the disciplinary committee at the hearing, its members would have been the best placed to deal with whatever submissions or evidence would have been presented to them on the issue.

The appellant's contention or alleged irregularity under this heading lacks any basis and is thus of no consequence.

Alleged improper constitution of the Disciplinary Committee

Regarding the allegation of improper constitution of the disciplinary committee, section 43 provides:

“(1) A disciplinary authority shall appoint a disciplinary committee to hear allegations of misconduct against members and make appropriate recommendations to the disciplinary authority.

(2) A disciplinary committee appointed by –

(a) The Commission shall consist of –

(i) A Chairman who shall be any head of Ministry appointed by the Commission; and

(ii) Two other members appointed by the Commission who are in a senior grade from any Ministry other than the one in which the allegation of misconduct arose.

(b) A head of Ministry shall consist of –

(i) A Chairman who shall be the principal establishment officer of the Ministry or a member of equivalent rank; and

(ii) Two other members appointed by the head of Ministry who shall be confirmed members;

(c) A head of department shall consist of –

(i) A Chairman who shall be the deputy head of department or a member nominated by the deputy head of department to act on his behalf who is approved by the head of department; and

(ii) Two other members appointed by the head of department who shall be confirmed members.”

In casu, the disciplinary hearing was chaired by the Deputy Head of the department.

In terms of the Regulations, no irregularity was occasioned thereby. The appellant's view that the other two members of the Disciplinary Committee were not qualified by reason of their not being members of his department is clearly erroneous. The Regulations merely provide that the other two members of the committee should be confirmed members. A confirmed member is defined in section 2 of the Regulations thus:

“Confirmed member means a member who is confirmed in the appointment after a period of probation, or was established officer in accordance with section 5 of the Public Service (General) Regulations, 1992, before the date of commencement of these Regulations.”

The section does not preclude members from other departments from being appointed in the disciplinary committee.

The appellant's contention or alleged irregularity on this aspect is also baseless and lacks merit.

Alleged bias of the Chairman of the disciplinary hearing

The appellant alleged that the Chairman of the disciplinary committee was biased because he was the same individual who investigated the matter when it was brought to the attention of the Commission.

There is no record of the appellant requesting the recusal of the Chairman as he would have been expected to do in such circumstances. See See Mupandasekwa v Green Motor Services (Pvt) Ltd SC30-15…, where the following was stated:

“…,. The likelihood of bias can only, logically, be raised before or perhaps during the proceedings in question. In such cases, an affected party would normally be expected to request that the person suspected of such bias recuse him or herself from participation in the proceedings in question. There is no record that in casu such a request was made by the appellant in respect of the Chairperson of the disciplinary proceedings. Consequently, proceedings continued to finality. The appellant could only, after that, have relied on demonstrated bias to request that the proceedings be set aside.

The court a quo found that he had failed to do so.”

There is no reason on record why he did not raise his concerns at that stage. To the contrary, he is on record thanking the Committee for facilitating the hearing and imploring them to allow him to resume his duties.

The hearing continued to finality.

The onus rests upon the person alleging bias to establish the allegation.

The appellant made an unsubstantiated allegation against the Chairperson of the committee and only did so after the conclusion of the hearing leading to his conviction and dismissal. He has failed to show that he suffered prejudice because of the alleged irregularities. In Musarira v Anglo American Corporation SC53-05, the following was highlighted:

“I would point out here that as long as a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party. However, this happens to be the situation in all misconduct cases. What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed. The rules of natural justice in such a case are that the party concerned –

(a) Must be given adequate notice;

(b) Must be heard or be able to present his/her side of the story; and

Equally pertinent is the following statement that was made in Watyoka v ZUPCO SC87-05:

“The appellant also raised a complaint about the composition of the disciplinary committee, but it was not shown that there was any bias or prejudice at all. The composition of the committee is a technicality that cannot be allowed to nullify the proceedings which, according to the record, reflect that he had a fair hearing.”

The same position at law was also highlighted in Nyahuma v Barclays Bank of Zimbabwe SC67-05 in the following statement:

“...., it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

The dicta in all the above cases can be applied with equal force in casu.

The appellant has not shown that the Chairperson was biased; neither has he shown that he suffered prejudice because of his involvement in the case. He has thus failed to substantiate the procedural irregularities that he raised.

There have, thus, not been shown to be any procedural irregularities that warrant that the disciplinary proceedings be rendered a nullity.

SC55-18 : WARDLOVE MUPARAGANDA vs COMMERCIAL WORKERS UNION OF ZIMBABWE
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

It is correct, as stated in the case of Bank of Zimbabwe v Chikomwe and 211 Others SC77-00, that, when disciplinary proceedings are set aside for irregularity, parties revert to the status quo ante...,.

View Appeal
SC06-17 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

The appellant appealed to the Labour Court against the decision of the respondent's Appeals Committee, alleging procedural irregularities and impugning the Committee's decision on the merits of his dismissal from employment with the respondent.The pertinent background to the matter is that the appellant, who was employed by the respondent, was ...

The pertinent background to the matter is that the appellant, who was employed by the respondent, was given a supervisory role over two casual employees. He sent the two to the premises of National Foods Limited to pack and stack used bags in packs of 100 bags each, as directed by National Foods. The bags had been paid for and were to be transported to the respondent's premises by the appellant. It was later discovered, just before the bags were to be removed, that the two employees had packed 110 instead of 100 bags per pack, suggesting an intention to steal the extra 10 bags per pack. The appellant was charged with theft and appeared before the disciplinary committee, and, later, the Appeals Committee.

During the disciplinary hearings the two casual employees testified that they had acted under the instructions of the appellant in packing more bags than had been instructed by National Foods. The appellant, when he was given the opportunity to do so, declined to cross examine the two witnesses.

The Labour Court found that the procedural irregularities raised by the appellant did not vitiate the proceedings of the Appeals Committee because:

(a) He had received a fair hearing before the disciplinary committee and the Appeals Committee, which relied on the evidence presented to the disciplinary committee; and

(b) No prejudice was shown to have been suffered by him as a result of the alleged irregularities.

The issue before us, therefore, is whether the court a quo erred in finding that the irregularities alleged were not so fatal as to vitiate the disciplinary proceedings; that the appellant was afforded a fair hearing and that he was properly found guilty of theft.

It is our unanimous view that the court a quo correctly found that the procedural irregularities alleged by the appellant did not vitiate the disciplinary proceedings conducted by the respondent. Furthermore, we are satisfied that the Labour Court correctly found that no prejudice was occasioned to the appellant, as, in the circumstances of the case, he had received a fair hearing before the disciplinary committee, and, subsequently, the Appeals Committee.

The court, in our view, properly relied on the case of Watyoka v Zupco SC87-05, where this court stated as follows:

“The appellant also raised a complaint about the composition of the disciplinary committee but it was not shown that there was any bias or prejudice at all. The composition of the committee is a technicality that cannot be allowed to nullify the proceedings, which, according to the record, reflect that he had a fair hearing.”

That being the case, we find that the court a quo correctly proceeded to determine the matter on the merits.

SC17-20 : ERASMUS GUDZA vs CITY OF HARARE
Ruled By: HLATSHWAYO JA, GUVAVA JA and CHIWESHE AJA

It is of concern that the appellant has not sought to deny allegations levelled against him and defend himself, but, rather, has sought to deploy allegations of procedural irregularities to escape liability.

SC35-12 : CANESIUS CHIPANGURA vs ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: OMERJEE AJA

This is an application for leave to appeal. The background relevant to the determination of this matter is as follows:

The applicant was employed by the respondent as Finance and Administration Manager. He was the head of the Finance Department. On 21 October 2009, the applicant was suspended from duty following allegations that the finance department could not account for US$15,607=25. The applicant directly supervised this department. It is not clear from the record what charge the applicant was facing but it is clear that a hearing was conducted in terms of S.I.15 of 2006. The applicant was found guilty and dismissed from employment.

The applicant's internal appeal was dismissed on 25 November 2009, leading to a referral of the matter to a Labour Officer for conciliation. On 1 March 2010, the Labour Officer issued a Certificate of No Settlement and referred the matter for compulsory arbitration.

The arbitrator, in his findings, accepted that there were some procedural irregularities in the way the hearing was conducted and set aside the employer's decision to dismiss the applicant. He ordered that the applicant be reinstated without loss of salary and benefits as from the date of dismissal pending the outcome of a hearing de novo. The arbitrator also set out guidelines to be followed by the respondent in the event of a hearing de novo. The respondent complied with the arbitral award.

On 7 May 2010 the respondent re-instituted disciplinary proceedings against the applicant. On 11 May 2010 the applicant appealed to the Labour Court against the determination of the arbitrator. In his Notice of Appeal the applicant averred that the arbitrator misdirected himself and erred at law when he permitted the respondent to conduct a hearing de novo.

The appeal was heard on 10 March 2011 and it was dismissed on 6 May 2011.

On 13 May 2011 the applicant approached the court a quo with an application for leave to appeal to this court. The application was dismissed on 12 July 2012 - some 14 months after the application was made. There has been an inordinate delay between the date of hearing of the application for leave to appeal and the date when the determination was made. No reasons were furnished for the refusal to grant leave or for the delay. This is unacceptable.

The applicant, on 20 July 2012, approached this Court in terms of section 92F(3) of the Labour Act [Chapter 28:01] seeking leave to appeal against the decision of the Labour Court.

During the hearing of the application, counsel for the respondent submitted that fresh disciplinary proceedings had been instituted against the applicant and had been taken to finality. The applicant was dismissed from his employment following new disciplinary proceedings.

Counsel for the applicant agreed that it was correct that the applicant had been charged, and, having been found guilty, was dismissed from his employment.

It is common cause that the arbitrator was exercising review powers over the matter when he was considering the proceedings before the disciplinary hearing with a view to determine whether the dismissal was procedurally correct. The arbitrator found that there were procedural irregularities in the manner in which the disciplinary proceedings were conducted.

As a general proposition, in cases where disciplinary proceedings have been set aside, on review, on purely procedural grounds, an employer has the power to institute proceedings afresh against the employee, if there exist bona fide grounds for doing so.

In an application of this nature one ought to consider whether there are any prospects of success on appeal.

In this case, there exist no prospects of success because there is no law that precludes the employer from instituting proceedings afresh especially when earlier proceedings had been impugned on the basis of procedural irregularities.

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

This is an appeal against the decision of the Labour Court which upheld the dismissal of the appellant from his employment with the respondent.The factual circumstances of this matter are common cause.The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He ...

The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He was dismissed from employment for disclosing confidential information during conciliation proceedings. He challenged his dismissal on the basis that it was an unfair dismissal and noted an appeal to the Labour Court. The Labour Court dismissed the appeal on the main ground that the appellant did violate the respondent's Code of Conduct in that he did not follow the laid down procedures on the obtaining and disclosure of confidential information.

The appellant was aggrieved by the decision of the Labour Court and has approached this Court on the grounds summarised below;

1. The court a quo misdirected itself and erred at law entirely in not finding that the disciplinary procedures set down in the Code of Conduct of the respondent were not followed thereby rendering the dismissal both substantively and procedurally wrong.

2. The court a quo further erred in rejecting the appellant's defence that the disclosure of the company information was not in breach of section 3(4) of Schedule 1 of the Employment Code of Conduct for the respondent as read with Part C 10.2.

3. The court a quo erred and misdirected itself at law in finding that the appellant was not unfairly dismissed.

Procedural Irregularities

The Labour Court did not address the issue of procedural irregularities in its judgment even though it had been raised as a ground of appeal.

Be that as it may, the appellant avers that the hearing authority that summarily dismissed him was not properly constituted, a circumstance that he argues rendered the disciplinary proceedings a nullity. The appellant, however, does not elaborate on this averment either in his grounds of appeal or in his heads of argument.

As correctly contended for the respondent, it is not enough to merely allege, as the appellant does in his heads of argument, that:

“In terms of the Code of Conduct for the respondent's entity, the hearing authority must be either, a Line Supervisor, Section Head, or Head of Department. This was not the composition of the Hearing Authority that dismissed the appellant.”

The appellant should have explained in what way he perceived the Code of Conduct to have been violated, at what stage of the proceedings this might have happened, and who, in his opinion, should have properly constituted the disciplinary authority.

The respondent, in any case, disputes that the disciplinary authority was not properly constituted.

In making the averment cited below, the respondent helpfully gives some insight into what the appellant's specific grievance might have been:

“Appellant was employed as a Human Resources Administration Officer. The Head of Department for Human Resources Department was Mr Moyo, who appointed Mr P. Muremba to hear the matter as Hearing Officer duly authorised thereby…,. The delegation of the function to conduct the hearing to P. Muremba as the Hearing Officer was permissible in terms of the Code.”

Assuming this was the appellant's concern, it is evident from the record that he has tendered no evidence that may in any way be interpreted as disproving the respondent's averment on this issue. Nor has he alluded to any prejudice having been suffered by him as a result of the alleged improper constitution of the disciplinary authority.

The respondent, I find, correctly contends that it is not every procedural irregularity that may render render the proceedings in question a nullity, especially in labour matters: see Dalny Mine v Banda 1999 (1) ZLR 220…,.

The respondent further cited the case of Air Zimbabwe (Pvt) Ltd v Chiku Mnensa & Mavis Maweyi SC89-04, where this Court stated that a person guilty of misconduct should not escape the consequences of his misdeeds simply because of improperly conducted disciplinary proceedings. He should escape because he is innocent.

I find, in the result, that the appellant has failed to place before the court sufficient evidence for a proper determination of whether or not there was a fatal irregularity in the conduct of the disciplinary proceedings. The onus to prove his case on this point lay on the appellant, and it is abundantly clear that he has failed to discharge it.

Accordingly, the appellant's ground of appeal relating to the composition of the Disciplinary Authority is dismissed.

SC07-22 : POLICE SERVICE COMMISSION and THE COMMISSIONER GENERAL OF POLICE vs DHERERAI MANYONI
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against part of a judgment of the High Court, dated 17 July 2019, in which the court a quo set aside the respondents dismissal from the Police Service Commission and ordered his reinstatement without loss of salary and benefits.

After hearing submissions from both the appellants' counsel and the respondent we gave an ex tempore judgment and made the following order:

“1. Accordingly, the appeal succeeds with no order as to costs. The decision of the court a quo is set aside and substituted with the following:

“(a) The appeal by the respondent to the Police Service Commission is upheld.

(b) The decision of the Police Service Commission is hereby set aside.

(c) The matter is remitted to the Police Service Commission for a hearing de novo.

(d) There shall be no order as to costs.”

The respondent has requested written reasons. These are they:

BACKGROUND FACTS

The first appellant is a Commission established in terms of section 221(1) of the Constitution. Its mandate, amongst others, is to fix and regulate the affairs of the members of the Police Service Commission.

The respondent was a member of the Zimbabwe Republic Police. Before his discharge from the service, he was stationed at Rose Camp in Bulawayo.

On 28 December 2015, the respondent was discharged from employment. The respondent alleges that his discharge was not in accordance with the Police Act as he was not informed of the charge preferred against him nor was a Board convened to enquire into the merits of the matter.

It was on these allegations that he approached the court a quo seeking a review of the proceedings that led to his discharge. He prayed for the setting aside of his discharge and reinstatement without loss of salary and benefits.

The court a quo found that there were procedural irregularities as the respondent was not given an opportunity to be heard. It was on that basis that the court a quo ordered the respondent's reinstatement.

Aggrieved by the order granted a quo the appellants appealed to this Court.

The main gripe of the appellants was that the court a quo erred in ordering the reinstatement of the respondent when there was no evidence of malice or bias towards the respondent and no evidence to show that the respondent had been improperly discharged.

In the court's view, the crisp issue that presents itself is whether or not the order of the court a quo was competent.

THE LAW

The law relating to reviews in terms of the High Court Act [Chapter 7:06] and the Rules of that court is settled. The application for review must be made within eight (8) weeks of the decision and on such grounds as are set out in section 27 of the High Court Act.

Section 28 of the High Court Act provides for the powers that the court is imbued. It reads:

“On a review of any proceedings or decision, other than criminal proceedings, the High Court may, subject to any other law, set aside or correct the proceedings or decision.”

APPLICATION OF THE LAW TO THE FACTS

It is trite, and this appears clearly from the above cited provisions, that, in an application for review, the court must confine itself to establishing whether or not the proceedings were afflicted with irregularities.

Once it found, as it did in this case, that there were irregularities in the process in which the appellants discharged the respondent, then, its power should have been exercised in terms of section 27 of the High Court Act.

As set out above, section 28 of the High Court Act provides that the High Court can only set aside or correct the proceedings or decision complained of. The High Court has no power to order the reinstatement of a person if a matter is brought on review.

This was clearly stated in Standard Chartered Bank of Zimbabwe Ltd v J. Chikomwe and 211 Ors s77–2000.

“This is because reinstating the respondents in the circumstances implies a finding that the respondents were innocent of the charges of misconduct against them by the hearing officer. It should be borne in mind that the respondent, in their appeal to the Appeals Board, were mainly challenging the procedural irregularities in the hearings before the disciplinary Committee. The merits of the case were not really challenged…,.”

See also Air Zimbabwe Ltd v Mensah SC89-04.

So too, in this case, the respondent was not happy with the manner in which his matter was handled. It was his case that there was no Suitability Board which was convened neither was he called to answer to any charges.

The court a quo agreed with him but then ordered his reinstatement. Clearly, this was ultra vires the powers of the court where it finds an irregularity. Its powers are limited to setting aside, or correcting, the decision of the Tribunal.

As the matter is not an appeal on the merits, the court a quo would not have had the power to set aside the decision of the Police Service Commission and substitute it with its own decision.

It was not in dispute that the record of the suitability Board was not before this Court. There was no valid explanation as to why it was not part of the record as it is in dispute whether or not the record was placed before the Police Service Commission or before the court a quo.

In view of these irregularities, and the fact that these documents do not appear to have been placed before the court a quo, the proper relief should have been the setting aside of the decision of the first appellant, and a remittal of the matter so that it can be determined following the proper procedures.

DISPOSITION

It was for the above reasons that we issued the order set out at the beginning of this judgment.

SC44-20 : TAFADZWA SAKAROMBE N.O. and WONDER SIMUKA vs MONTANA CARSWELL MEATS (PVT) LTD
Ruled By: GOWORA JA, PATEL JA and BERE JA

This is an appeal against a judgment of the Labour Court dismissing the first appellant's, a labour officer, application for confirmation.

The ruling was in favour of the second appellant, a former employee of the respondent, who was dismissed from employment sometime in March 2016 on allegations of certain acts of misconduct, including theft and/or fraud.

At the hearing of the appeal, we allowed the appeal and issued an order in the following terms:

IT IS ORDERED THAT:

1. The appeal be and is hereby allowed with no order as to costs.

2. The proceedings before the Labour Officer and the Labour Court be and are hereby set aside.

2.1 The matter is remitted to the Labour Court to be heard as an appeal against the decision of the Designated Appeals Officer in terms of section 92(1) of the Labour Act.

3. The second appellant herein shall file his Notice of Appeal to the Labour Court within 15 days from the date of this order.

3.1 Thereafter, the matter shall proceed in terms of the Labour Court Rules.

We indicated that reasons for judgment would follow. These are they.

FACTUAL CONSPECTUS

The second appellant was employed by the respondent as an Administration Clerk in charge of cash sales. He was in the respondent's employ for a period running from May 1998 until March 2016 when he was dismissed from employment following allegations of misconduct.

The background relating to the dismissal is the following:

On 29 February 2016, the second appellant was issued with a charge letter detailing the grounds upon which the misconduct charges were premised. He was charged with theft or fraud in breach of section 4(d) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15/2006), also commonly known as the Model Code of Conduct.

It was alleged, that, sometime in October to November 2015, he was assigned, by management, to backstop one Shayne Mbizi who was going on leave, and, that, during the course of that period the appellant failed to account for R1,780 and USD600 respectively.

The respondent alleged that during the period in issue, the second appellant had:

(a) On 29 October 2015, been given a cash sales book together with sales for that day. Among those sales was R1,780 as per receipt number 018461. The said amount was neither posted onto the daily cash book nor was it banked with the cash office as per the company practice.

(b) On 2 November 2015, received USD1,200 in cash sales but had only posted USD1,000 onto the cashbook. In terms of receipt number 018529, received a cash sale of USD286 but only USD186 was posted onto the cashbook.

(c) On 16 November 2015, posted USD120 from receipt number 018538 valued at USD220, and, as a result, USD100 was not remitted to the cash office.

(d) On 18 November 2015, a receipt number in the name of a client, one Thomas Knowledge, indicated a cash payment of USD546 but only USD446 was posted onto the cash sale.

In response to the charge letter, the second appellant accepted indebtedness of the USD600, and, as far as the issue of the missing R1,780 was concerned, he requested that further investigations be conducted.

Pursuant to the charges, disciplinary proceedings were conducted wherein the second appellant was found guilty and dismissed from employment.

An internal appeal was lodged to the Appeals Committee which upheld the decision of the disciplinary authority.

Thereafter, the second appellant approached the Ministry of Public Service, Labour, and Social Welfare with a complaint of unfair dismissal.

The parties then appeared before the first appellant for conciliation.

They reached a stalemate, which led to the subsequent issuance of a Certificate of No Settlement.

The first appellant, the labour officer, then proceeded to deal with the matter in terms of section 93(5)(c) of the Labour Act [Chapter 28:01].

Before the labour officer, the second appellant raised six grounds of appeal in which he contended, that, he had been wrongly accused of the said charges. He further argued, that, the acknowledgment of debt, which he is said to have purportedly written, was fabricated. In his final submissions, the second appellant argued, that, these charges were a ploy by the respondent to deprive him of his retrenchment package.

The respondent opposed the second appellant's case in all material respects.

Following the arguments, the labour officer made a ruling in favour of the second appellant. She overturned the decision of the Disciplinary Committee on the basis, that, the respondent had failed to prove its case beyond a reasonable doubt. In arriving at this decision, reliance was placed on the case of Astra Industries Ltd v Chamburuka SC27-12.

The labour officer consequently ordered the reinstatement of the second appellant without loss of salary and benefits.

It is this ruling which was subject of confirmation before the court a quo in terms of section 93(5a) and (5b) of the Labour Act.

The application for confirmation was opposed.

The issue for determination before the court a quo was whether or not the second appellant was unfairly dismissed.

Contrary to the findings of the labour officer, the court a quo held that the onus of proof in disciplinary proceedings was on a balance of probabilities.

The court a quo held, that, the labour officer had erred in placing reliance on Astra Industries Ltd v Chamburuka SC27-12.

In assessing the charge, on a balance of probabilities, the court a quo found that there was no unfair dismissal and proceeded to dismiss the application for confirmation.

Aggrieved by the decision of the court a quo, the second appellant noted an appeal to this Court on the following grounds:

“(a) The court a quo erred on a point of law in finding, that, the second appellant (the employee) had the onus to prove the admitted fact, that, in compiling the electronic cash book, he had relied only upon the cashier's handwritten notes.

(b) Further, the court a quo erred on a point of law in not finding that the respondent had failed to prove the essential elements of theft or fraud.

(c) Further, the court a quo misdirected itself in interfering with the labour officer's factual findings which had not been proved to be irrational or grossly unreasonable.”

ARGUMENTS ON APPEAL

Although the labour officer was cited as the first appellant she has not participated in this appeal nor has she filed any documents.

That is the proper way of dealing with the dispute, as she is not a litigant.

She would only have filed the application for confirmation in compliance with the law. She would therefore have no interest in the matter and we heard the appeal in her absence.

In his heads of argument, the second appellant argued, that, the court a quo erred in holding that he, the second appellant, had the onus to prove an admitted fact.

The appellant argued, that, the nature of the court a quo's misdirection in that regard was such that the conclusion arrived at by the court a quo was per incuriam.

The appellant further argued, that, the court a quo erred when it failed to make a finding that the respondent had failed to prove the essential elements of theft or fraud.

It was his argument that the respondent failed to prove its case, even on a preponderance of probabilities, and, as such, the court a quo ought not to have found in its favour.

In his final submissions, the appellant averred that the court a quo misdirected itself when it interfered with the factual findings of the labour officer without a finding of irrationality on the part of her decision.

Per contra, the respondent argued that the key issue for determination was whether or not the court a quo had erred in making its decision.

The respondent argued, that, the burden of proof in labour proceedings was proof on a balance of probabilities; therefore, the appellant had failed to interpret the position in Astra Industries Ltd v Chamburuka SC27-12.

It further argued, that, what determines where the onus of proof lies is the person who makes the allegations. In casu, the respondent argued, that, it was the appellant making the allegations, and, therefore, on principle, he must be able to prove the point.

The respondent further argued, that, the court a quo was not in error, as such, the appeal ought to be dismissed with costs.

Although the parties have made arguments on the merits, it is our view that a more fundamental issue, pertaining to the procedure adopted by the parties, including the labour officer, in the resolution of the matter, arises in this case.

It is imperative to note, that, a claim for unfair dismissal was brought by the second appellant in terms of SI 15/2006 subsequent to the dismissal of an appeal by the appeals authority.

The court notes, that, the disciplinary authority, when hearing the matter, made factual findings which were confirmed by the designated Appeals Officer.

It is against this background that the court takes the view, that, a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings in question were properly before the labour officer in the first place.

In that regard, the issues that arise for determination are the following:

(i) The ambit of the jurisdiction of a labour officer, under section 93 of the Labour Act, where a matter is referred to him or her in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006, otherwise referred to as the Model Code of Conduct; and

(ii) Consequent thereto, whether or not the subsection is consistent with sections 101 and 92D of the Labour Act [Chapter 28:01] (the Act) as well as section 12B thereof.

We are indebted to counsel for undertaking further research and submitting additional written submissions to the court so that clarity on this issue may be achieved.

Counsel for the appellant made the following submissions:

He submitted that sub-section (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006 (the Model Code of Conduct) is inconsistent with sections 92D and 101(5) of the Labour Act [Chapter 28:01].

In this regard, he sought reliance on the authorities of Mwenye v Lonrho Zimbabwe Ltd 1999 (2) ZLR 429 (S) and Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170 (S).

In consequence thereto, he has submitted that due to the inconsistency, subsection (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) should be struck down.

On the other hand, counsel for the respondent has argued an alternative position to that presented by counsel for the appellant.

He urged the court to find, that, there is in fact no conflict between the provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct).

Further to the above, counsel has urged the court to find that a labour officer has the requisite jurisdiction to deal with a matter referred to him on the basis that a dismissal has been effected in contravention of section 12B(3) of the Labour Act.

THE ISSUES AND DISPUTES FOR DETERMINATION BY A LABOUR OFFICER FOLLOWING A REFERENCE UNDER SECTION 101 OF THE LABOUR ACT

Although the issues for determination in this appeal emanate from a reference of an unfair dismissal under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct), the enabling legislative provision for such reference is section 101 of the Labour Act, in particular subsections (5) and (6) thereof.

The law provides:

“(5) Notwithstanding this Part, but subject to subs (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subs (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

The Labour Act has been subjected to numerous amendments ever since it was initially promulgated as the Labour Relations Act [Chapter 28:01], ultimately ending as the Labour Act as it is currently known.

For some reason, section 101 of the Labour Act has remained in the same format as it was, with minor amendments which are not pertinent for the resolution of this dispute.

Subsections (5) and (6) have been considered by this Court in order to ascertain what it is that a labour officer is empowered to do or determine upon reference of a matter to such labour officer in terms of section 101(5) or (6) of the Labour Act.

Section 101(5), under the former Labour Relations Act, was considered by this Court in Mwenye v Lonrho Zimbabwe 1999 (2) 429 (S). At 433C-434B, GUBBAY CJ remarked as follows:

“Section 93(1) vests in a labour relations officer a general jurisdiction to deal with any dispute, either on his own initiative or on reference to him by one of the parties. Section 101 of the Act (then as s117A) was introduced on January 1, 1993 by the Labour Relations Amendment Act 12 of 1992. It then became possible for an employment code of conduct, binding in respect of a particular industry, undertaking, or workplace, to be registered; provided it contained the matters specified in s101(3) of the Act….,.

Against this background, it does not seem to me that the legislative objective introducing the new procedure was to relieve labour relations officers of the burden of determining disputes. It was rather to return to the employee and employer a greater degree of autonomy with regard to the determination of their disputes than previously enjoyed.

Section 101(5) of the Act is, in effect, an exception to section 93.

It is a provision designed for the benefit of the parties. As long as the dispute or matter is: (a) the subject of proceedings under a code; or (b) liable to be the subject of proceedings under a code; no labour relations officer may intervene.

His power to determine or otherwise dispose of the matter under section 101(6) is placed in abeyance for a period of thirty days. This is to afford the parties, should one of them so wish, the opportunity to utilize the internal mechanisms specified in the code.

Consequently, if either party were to refer the matter to a labour relations officer before the expiry of the thirty day period, the other could raise section 101(5) as a defence.

On the other hand, where the parties are ad idem that their dispute is incapable of resolution under the code, or both deem it more advantageous to have it determined by a labour relations officer, then, the dispute or matter is no longer 'liable' to be the subject of proceedings under the code. It may be referred immediately to a labour relations officer.”

The import of this authority is to illustrate the ambit of the jurisdiction of the labour officer under section 93 of the Labour Act.

In other words, does a labour officer have carte blanche to deal with the matter as he sees fit or is his jurisdiction specific?

The import of these provisions was considered by this Court in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170. At p172F-173D, this Court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).

In this case, there were delays in the determination of the matter due to a number of postponements at the request of the appellant. At one meeting, the appellant and his legal practitioner attended without submitting the appellant's response to the allegations. At yet another meeting, the appellant and his legal practitioner walked out before the meeting was closed, as the legal practitioner said he wanted to catch his flight and had other business to do in Harare.

When the appellant and his legal practitioner raised the issue of delay, the chairperson did point out to them that it was actually their fault, as they were responsible for the delay.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”…,.

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the code of conduct.”…,.

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were, firstly, the fact that a determination had been made, and, secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

Although this Court has clearly set out the procedures applicable when a matter is referred to a labour officer in terms of section 101 of the Labour Act, it is evident that the process is fraught with confusion.

In fairness to the parties involved in this debacle, the incidence of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) and the provisions of section 8(6) and (7) of the Model Code of Conduct might have, to a large extent, contributed to the confusion.

It is imperative, therefore, that the role of a labour officer under the enabling sections be examined.

WHAT IS THE JURISDICTION OF A LABOUR OFFICER UNDER SECTION 93 OF THE LABOUR ACT

The issue before the court is a simple one: what are the powers exercisable by a labour officer in terms of section 93 of the Labour Act?

A labour officer is not a stand-alone court or tribunal, and exercises his or her powers upon reference to him of matters or disputes.

Viewed in this context, one does not envisage any issue over the exercise of those powers under the Labour Act.

The labour officer is a creature of the Labour Act. He is imbued with certain and specified duties and obligations under the Labour Act, and, perforce, his powers are only to be exercised as defined in the Labour Act. Therefore, the jurisdiction that he is empowered to exercise, and the nature of the relief that he provides, after an exercise of such jurisdiction, must be found in the Labour Act.

It cannot emanate from any other source.

However, a ticklish question on the exercise of this jurisdiction may arise in this regard, mainly emanating from the provisions which stipulate the matters in terms of which the labour officer exercises his jurisdiction and make provision for the reference of such matters to the labour officer.

Section 93 of the Labour Act is not a stand-alone provision. It must be read with other provisions in the Labour Act or related provisions from codes of conduct. It is therefore to the Labour Act that one must look, in particular section 93(1), (2) and (3) of the Labour Act.

Section 93 of the Labour Act, as amended by Act 5 of 2015, reads:

“93 Powers of labour officers

“(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation, or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.

(3) If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under ss (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.”

The question is: what dispute is a labour officer empowered to preside over in terms of section 93(1) of the Labour Act?

The clear principle that emerges from the authorities in which section 93 of the Labour Act has been considered is that his mandate is to preside over a fresh hearing wherein a complaint has been lodged against an employer or there exists a dispute between the parties.

Consequently, his jurisdiction is limited to matters where there are allegations of unfair labour practices or unfair dismissal.

Unfair labour practices are defined in section 8 of the Labour Act and include a whole host of wrongs that an employer may be guilty of in the workplace.

This is not the complaint here.

On 5 May 2016, the designated Appeals Officer advised the second appellant, in writing, that his appeal had not been successful. The latter acknowledged receipt on 9 May 2016.

On 29 April 2016, he filed a complaint with the Ministry of Public Service, Labour and Social Welfare, alleging “an unfair dismissal”.

On 3 May 2016, the labour officer notified the parties to appear before her for a hearing on 7 May 2016.

On 17 May 2016, the labour officer issued a Certificate of No Settlement.

On some unnamed date, she advised the parties to file submissions for her consideration. It is common cause that she issued a draft ruling on 5 September 2016, which ruling was the subject of the application for confirmation which was refused by the Labour Court. She stated therein that she had determined the matter in accordance with section 93(5)(c) of the Labour Act.

In his submissions before the labour officer, the second appellant made allegations that there had been a delay in the determination of his appeal - even though, at the time he lodged the complaint, he had been notified of its dismissal.

I note that he did not seek an appeal before the labour officer.

The respondent filed a response in which it responded to the complaints on the merits. It also feebly raised a point in limine on the procedure adopted by the second appellant.

The labour officer was of the opinion that the second appellant had lodged an appeal for determination by her.

This is confirmed by the labour officer making reference to the following grounds of appeal as being issues for determination before her:

“1. Wrongly accused of stealing 1,730 Rands (one thousand seven hundred and thirty rands);

2. Wrongly accused of stealing/misrepresenting US600 (six hundred dollars);

3. Withdrawal of police report;

4. Fabricated acknowledgement of debt;

5. Report to Ministry of Labour and subsequent courtesy call from M C Meats Human Resources;

6. Prejudiced of retrenchment package.”

The labour officer thereafter proceeded to analyze the facts and consider the applicable law. She then addressed the grounds of appeal.

After this exercise, she went on to quash the conviction of the second appellant on the misconduct charges and ordered that he be reinstated to his original position without loss of salary and benefits.

In making this ruling she said:

“It is clear from what has been discussed above, that, the Respondent failed to prove its case that the appellant contravened section 4(d), theft or fraud (sic) of the National Employment Code of Conduct S.I. 15 of 2006. In light of the above, the conviction of Appellant be and is hereby quashed. The Respondent be and is hereby ordered to reinstate the appellant to his original position without loss of salary and benefits from the date of dismissal within 30 days of receipt of the ruling.”

A perusal of the ruling issued by the labour officer will tend to show, that, the proceedings conducted by her were in effect an appeal against the decision of the designated Appeals Officer dismissing the second appellant's appeal against the findings of guilt by the disciplinary authority and the penalty of dismissal meted out as a result.

Undoubtedly, she was acting as an appeal tribunal.

A simple reading of the subsections of section 93 of the Labour Act set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1) of the Labour Act, it is a matter where the labour officer must conciliate on the dispute.

At this stage, all that a labour officer is obliged to do under the Labour Act is to attempt to bring the parties to a stage where a settlement is achieved.

Thus, the proceedings before the labour officer, under section 93(1) of the Labour Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Labour Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

In casu, since the disciplinary proceedings against the appellant were conducted under the aegis of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) it stands to reason that the matter was referred to a labour officer in accordance with the provisions of the same.

Section 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 provide as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days of receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

Section 8 of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) is concerned with the respective parties rights in a disciplinary process to appeal against a determination made in terms of the Code.

Provision is made in the section for internal processes of appeal against determinations of formal tribunals at the workplace.

To be fair, a simple reading of the above statutory provisions would appear to suggest, that, a reference to a labour officer, or an Employment Council Agent, under the same, is an appeal.

To place the matter in its proper context, regard must be had to the provisions in the Labour Act which permit a reference to a labour officer, or an Employment Council Agent, as the case may be.

Therefore, and in addition, regard must be had to section 101(5) and (6) of the Labour Act which empower a labour officer to exercise powers inherent in such officer under section 93 of the Labour Act.

Section 93(1), (2) and (3) of the Labour Act make provision for conciliation.

To conciliate is to reconcile or make compatible. Thus, the first duty of a labour officer, in conciliation proceedings, is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute.

Section 93 of the Labour Act, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.

The finding that the labour officer had no jurisdiction to entertain the matter disposes of the issue.

In casu, it matters not that the labour officer went on to decide the matter under section 93(5) of the Labour Act after which she issued what she termed “a draft ruling”.

That is not an issue for consideration before the court as nothing turns on that ruling.

The method by which she arrived at a draft ruling is, as a result, of no consequence to the determination of this appeal.

The reason I say this is that section 93(5) of the Labour Act does not empower a labour officer to examine earlier proceedings and make a determination as to their correctness.

That said, it only remains for me to consider the relationship of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) with section 93 and section 101 of the Labour Act.

It seems to me that section 8(6) of the Model Code of Conduct appears to be out of sync with the whole section.

It seems to suggest, that, a party aggrieved by a decision or manner in which an appeal has been conducted has a right of appeal to a labour officer in terms of section 93 of the Labour Act.

To my mind this is obviously incorrect, if regard is had to the wording of section 93 of the Labour Act.

The powers bestowed upon a labour officer under the section are confined to disputes related to unfair labour practices or unfair dismissals.

A reference under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 cannot be defined as relating to either an unfair labour practice or unfair dismissal.

Given the scenario related above, what is it that the labour officer was presiding over?

What then is the import of section 8(6) and (7) of the Model Code of Conduct in terms of which this dispute was referred to the labour officer?

Is the reference meant to give the parties an opportunity to present their respective positions to the dispute before the labour officer afresh and for him to make a determination?

Is the labour officer exercising review or appeal powers, and, in accordance with which provision of the Labour Act?

If regard is had to the nature of the disputes that a labour officer is mandated to deal with, it becomes clear that the jurisdiction is limited to a dispute or unfair labour practice or unfair dismissal.

When one has regard to section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code) one may be misled into assuming that even completed disciplinary hearings should be referred to a labour officer.

It is not suggested, in the Labour Act, that the labour officer, in this context, can exercise powers of appeal or review.

In casu, a determination on the merits had been made by the disciplinary authority, as provided for in the Code of Conduct. The reference to the labour officer, in terms of section 8(6) of the Model Code of Conduct would, as a consequence, seem to be in direct conflict with the provisions of section 101(5) and (6) of the Labour Act.

And yet, under the various provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) a labour officer has been imbued with the power to entertain parties to a dispute without any apparent restriction.

The nature of the disputes he can entertain is not specifically defined. They have to be construed by reference to section 93(1) of the Labour Act in order to achieve clarity.

An exercise of power under section 93 of the Labour Act must be provided for in terms of the Labour Act itself. Reference must therefore be had to section 101 of the Labour Act, which reads in relevant part:

“101 Employment Codes of Conduct

(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

A perusal of the Labour Act will show, that, the only section providing for reference of a matter to a labour officer for intervention under section 93 is to be found in section 101(6): and yet, when read with subsection (5) of the same section, it becomes evident that the procedure adopted before the labour officer was not permitted by law.

In this context, the implications of what the labour officer did are obvious.

First, she assumed jurisdiction to entertain a matter which the law did not sanction. An appeal against proceedings under the Code can only lie to a court or a tribunal which is empowered by law to act as an Appeal Court or tribunal.

In casu, the labour officer assumed unto herself the jurisdiction that is imbued, by law, in an Appellate Court or tribunal.

A labour officer is not an appeal structure for purposes of section 93 of the Labour Act, nor can that power be read into the section no matter where the referral of a dispute or matter emanates from.

The view I take, therefore, is that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been any procedural process that has been completed.

His jurisdiction is limited to that of a tribunal of first instance.

There is a presumption that the Legislature does not intend to alter the law, whether it is statutory or common law, unless it provides so in specific terms. This presumption is fundamental to the interpretation of statutory provisions.

As a result, courts are enjoined, as much as possible, to construe statutes in a manner that seeks to reconcile seemingly contradictory provisions.

The appellant in this dispute was charged with misconduct in terms of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) after which he was dismissed from employment.

It is therefore clear to the naked eye, that, he could not lodge a complaint with the labour officer alleging unfair dismissal.

The labour officer would not have the jurisdiction to entertain any complaint from the appellant, as what the appellant was seeking was the setting aside of the determination of the disciplinary process.

She also, again without having the jurisdiction to even hear the parties, set aside findings of fact made by a tribunal of first instance without regard to settled principles by which such findings should be set aside.

These same findings of fact reached by the disciplinary authority were confirmed by the appeal structures of the respondent.

To describe the process by which this decision was reached as being irregular is mild. It is not only irregular, it was unlawful and nothing can stand on that decision.

The provisions of section 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) must be read together with the Labour Act under which the statutory instrument was promulgated. Where the Code conflicts with any provision of the Act, it stands to reason that the provisions of the Act must prevail.

Section 2A(3) provides that the Labour Act shall prevail over any enactment which is inconsistent with it.

DISPOSITION

In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

It is clear that the labour officer presided over a matter over which she did not have any jurisdiction.

As stated in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170, once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Labour Act. Accordingly, the subsequent procedures were a nullity as the labour officer could not subsequently purport to make factual findings on the same matter.

I conclude, therefore, that, the labour officer did not have jurisdiction to hear a complaint from the appellant, of whatever nature, and, therefore, the proceedings conducted under section 93(5)(c) of the Labour Act, by the labour officer, were, as a result, an irregularity.

In addition, the proceedings before the Labour Court, to confirm the ruling, were also a nullity.

This Court is of the view, that, the matter should have been brought before the Labour Court as an appeal.

Both counsel were in agreement with this position.

This finding has necessitated the writing of the present judgment so as to give the position that should obtain where a dispute is dealt with in terms of an employment code of conduct.

In addition it is necessary, in order that the apparent confusion that exists between the Labour Act and section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code), as highlighted in this judgment, be rectified; that the relevant Minister responsible for the administration of the Labour Act be appraised of the need to call upon the Legislature to align S.I 15/2006 to its parent statute, the Labour Act.

It is for the above reasons that this Court issued an order as described above.

SC52-19 : ZIMBABWE OPEN UNIVERSITY vs PERPETUAL NDEKWERE
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

At the conclusion of the hearing of an appeal noted to the Labour Court by the appellant, the Labour Court upheld the point in limine taken by the respondent, that, the appeal was improperly before the court as it sought to impugn findings of fact rather than law.

As a consequence of that finding, the court a quo dismissed the appeal with costs.

It is against that order that the appellant has now approached this Court seeking an order setting aside that finding and remitting the matter to the court a quo for a determination of the matter on the merits.

FACTUAL BACKGROUND

The respondent was employed by the appellant as its Finance Director. Although both the arbitrator and the court a quo say that she was employed on fixed term contracts which were periodically renewed, the record, in fact, shows that she was employed in that capacity on a fixed three-year contract which commenced on 8 June 2009 and was set to expire on 7 June 2012.

For the duration of the contract period, either party had the right, in terms of the contract, to terminate the contract upon giving six months notice in writing of such termination.

On 27 March 2012, less than three months before her contract was set to expire, the appellant's Human Resources Committee held a meeting at which all the members present (excluding the respondent, who had been asked to recuse herself) recommended that her contract be renewed, subject to approval by the Council of the appellant.

A special executive committee of the Council met two days later and also “strongly and unanimously” recommended that the respondent's contract of employment as Finance Director be renewed for a further period of three years, on the same terms and conditions, subject to approval by the Minister.

On 7 June 2012, the date on which her contract was set to expire, the Vice-Chancellor of the appellant, a Dr P. Kurasha, wrote to the respondent advising that the Council of the appellant had decided to appoint her in an acting capacity from 9 June 2012 “until further notice”.

Pursuant to that communication, the respondent continued offering her services as Finance Director until 27 June 2013, over a year later, when she received a letter from the chairman of the Council.

The letter advised that the Council was now in a position to make a substantive appointment of a Finance Director.

In the letter, the chairman gave the appellant notice of termination of her contract of employment, effective 30 September 2013.

It bears mention, at this stage, that, as a matter of fact, the chairman of Council gave her three calendar months notice of the termination of her employment.

The letter also requested that she vacates her office immediately and that she carries out a handover-takeover of assets and records with the Acting Finance Manager.

Unhappy with the sudden turn of events, the respondent lodged a complaint of unfair dismissal with a labour officer.

Having failed to conciliate the dispute between the parties, the Labour Officer (then) referred the matter to an arbitrator to determine whether she had been unlawfully dismissed, and, if that was the case, the appropriate remedy.

In proceedings before the arbitrator, the appellant disputed that the respondent could have entertained a legitimate expectation of her contract being renewed. It argued that the respondent could not rely on a mere recommendation of a committee of the Council.

The appellant also argued, that, the respondent had accepted her termination, and, pursuant thereto, had vacated her office and accepted her terminal benefits.

In his findings, the arbitrator rejected the contention that the respondent had waived her right to appeal.

The arbitrator agonised over the status of the respondent between 7 June 2012 and 27 June 2013 when her employment was formally terminated.

He noted that the acting appointment did not “mention an extension of the fixed term contract…,.; nor does it specify the basis for such acting appointment or the duration of the same.”

He concluded that this was a contract without limit of time as there could not be an employment relationship “on a temporary basis.”

He expressed the view that the nature of the employment relationship that subsequently subsisted between the parties was one of a contract without limit of time.

Notwithstanding that conclusion, the arbitrator proceeded to determine whether the respondent had a legitimate expectation of being re-engaged.

He noted that the position that she had previously occupied had been filled by someone else in an acting position. He concluded, that, the respondent may have had a legitimate expectation of her contract being renewed, taking into account the favourable recommendation made by both the Human Resources Committee and the Special Executive Committee of Council, and the fact that she was appointed to act in the same position, albeit for an indefinite period.

Consequently, he determined that the respondent had been unfairly dismissed and that she should be reinstated to her position without loss of salary or benefits, or, alternatively, that the appellant pays damages in lieu of reinstatement.

PROCEEDINGS BEFORE THE LABOUR COURT

Aggrieved by the above arbitral determination, the appellant appealed to the Labour Court. It did so on a number of grounds of appeal.

As the determination of the Labour Court was predicated on the validity of those grounds of appeal, it is necessary to set these out in full. I cite them verbatim:

“1. The Honourable Arbitrator erred at law in exploring and making a finding on the nature of the contract entered into between the parties with effect from 9 June 2012 when such was not an issue before him.

2. The Honourable Arbitrator erred, grossly, on the facts, in finding that the contract entered into between the parties, with effect from 9 June 2012, was a contract without limit of time. The Honourable Arbitrator's findings in this respect is not supported by any evidence and is so grossly unreasonable such that no reasonable person, properly applying his mind to the matter, would have arrived at such a decision.

3. The Honourable Arbitrator made a finding to the fact, that, the respondent had legitimate expectation of renewal of a contract based on recommendations made during Council meetings.

4. The Honourable Arbitrator erred at law in relying on the proceedings and resolutions in those meetings.

The Honourable Arbitrator erred, grossly, on the facts, in finding that respondent was legitimately entitled to expect the renewal of her contract. The Arbitrator's findings in this regard are so grossly unreasonable such that no reasonable person, properly applying his mind to the matter, would have arrived at such a decision.

4.1 The Honourable Arbitrator also made a finding that the fact that the Executive Committee made its decision subject to the approval of full Council or the Minister did not deny respondent a legitimate expectation since her appointment on 7 June 2012 was not blessed with Council or Ministerial approval.

The Arbitrator's finding in this regard is grossly unreasonable as:

(a) Whether or not the consent of Council or the Minister was asked for and/or obtained for the 7 June 2012 appointment was never an issue; in any event, the 7 June 2012 appointment was a temporary appointment (sic) while the appointment allegedly expected is a three (3) year appointment;

(b) Further and any event, it is the employer's prerogative to choose which appointment to subject to approval and which not. Once one is informed that a specific appointment is subject to approval, then, without such approval, no legitimate expectation can arise.

(c) The Arbitrator also made a finding that a year's delay in obtaining Council or Ministerial approval entitled respondent to legitimately expect that her three year (3) fixed term contract will be renewed. This finding by the Arbitrator is so grossly unreasonable such that no person, properly applying his mind to the matter, would arrive to such a decision.

4.3 The Arbitrator also held that no proof of a negative decision from the decision maker was furnished, and, as a result, respondent was entitled to legitimately expect that her contract will be renewed. The Arbitrator's decision in this respect is so grossly unreasonable such that no person, properly applying his mind to the matter, would arrive at such a decision.”

In its submissions a quo, the appellant stated as follows:

1. First, that the arbitrator made a finding on an issue that was not before him and in respect of which no evidence had been led. In particular, the appellant submitted that the nature of the contract that subsisted between the parties, from 7 June 2012, was not an issue before the arbitrator, and, therefore, his finding that there existed a contract without limit of time was irregular.

2. Second, that the crux of the matter revolved around the question of legitimate expectation. The recommendation to extend her contract had not been communicated to her. It had been made by the appellant's Executive Committee of Council, not to her, but to the appellant. The respondent could not, therefore, rely on a representation that was never made to her. In any event, no representation was ever made by the appellant so as to induce her to legitimately expect that her contract was to be extended.

3. Third, the recommendation made by Council was subject to acceptance or rejection by the appellant. That recommendation was therefore “not clear, unambiguous, and devoid of relevant qualifications” as required by the law.

4. Lastly, the submission was made that criminal conduct, involving abuse of trust, had been unearthed in the finance department, and the respondent's innocence was therefore questionable. She could not therefore have expected her contract to be extended given that circumstance.

In her submissions before the Labour Court, the respondent argued that the arbitrator had correctly found that she had a legitimate expectation to be re-engaged as Finance Director. It being common cause that another person had been engaged in her place, she had therefore been unlawfully dismissed.

The respondent also took the point, that, the appeal had been noted against findings of fact and not law. No real question of law had been ventilated.

She therefore prayed that the appeal should fail on that basis and that costs be awarded in her favour.

At the hearing of the appeal, the court a quo, quite correctly, decided to determine the point in limine raised by the respondent, that the appeal was not properly before the court as it did not implicate any issues of law.

The first and second grounds of appeal were abandoned by the appellant at the commencement of the hearing. The court a quo accordingly confined its enquiry to the remaining grounds of appeal.

The court found, that, the third ground of appeal raised a factual finding since no allegation had been made that the arbitrator's reasoning was so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided would have arrived at such a conclusion.

It also found the fourth ground to have been similarly afflicted.

Whilst in this ground the appellant had alleged that the arbitrator's finding had been grossly unreasonable, the court found, that, on a perusal of the record, it was apparent that the issue whether or not the recommendation had been communicated to her had not been raised before the arbitrator. It accordingly found, that, it was improper for the appellant to have raised this issue for the first time on appeal; the issue raised before the arbitrator having been whether the respondent could rely on a recommendation made by a Committee of Council to found a claim for legitimate expectation.

The court also considered the submission by the appellant, that, the Executive Committee of Council had made its decision to recommend the re-appointment of the respondent subject to approval by the full Council and the Minister, and that, in the circumstances, no legitimate expectation could have arisen.

The Court accepted the respondent's submission, that, a legitimate expectation can arise from a representation made by, or the conduct of, the employer.

It determined, that, the placement of the respondent in an acting position, coupled with the recommendation by the Executive Committee of Council that her contract of employment be extended, gave rise to that expectation. Therefore, the arbitrator could not be faulted for relying on previous conduct by the appellant, regard being had to the fact that the two meetings that recommended her re-engagement were held before she was re-appointed in an acting capacity.

It found that the arbitrator's reasoning in this regard could not be termed outrageous or irrational.

The court also considered the attack against the arbitrator's finding, that a year's delay in obtaining a determination from the Council or the Minister, on the recommendations previously made, was a basis for legitimate expectation.

It considered, that, in the absence of a further averment that the finding was so grossly unreasonable that no person properly applying his mind to the fact would have arrived at such a decision, the attack remained one on a factual finding.

Lastly, the court a quo found that the attack against the finding by the arbitrator that “no proof of a negative decision from the decision maker was furnished” and, consequently, that the respondent legitimately expected that her contract would be renewed, did not elaborate in what way the finding was grossly unreasonable. Merely stating that the decision was grossly unreasonable does not suffice.

The court accordingly found, as it had done with the other grounds, that the appeal was improper as it sought to impugn factual findings.

Having found that all the grounds of appeal were impugning factual findings, the court a quo upheld the point in limine. Consequently, it dismissed the appeal with costs.

Hence the appeal to this Court.

GROUNDS OF APPEAL

The appellant seeks an order setting aside the judgment of the court a quo and remittal of the matter to the Labour Court for a determination of the dispute between the parties on the merits.

“1. The court a quo erred in finding that the grounds of appeal relied upon by appellant did not raise points/issues of law either in the primary or secondary sense of the expression.

2. The court a quo erred in finding that grounds of appeal which attack factual findings made by a Labour Arbitrator fail by that circumstance to disclose points/issues of law as required by statute.

3. The court a quo erred in failing to appreciate the distinction between the validity of grounds of appeal, on the one hand, and the sufficiency thereof, on the other, and, so erred in finding that there were no valid grounds of appeal based on the view it took to the effect that the grounds were meritless.

4. Having found, at any rate, that there were no valid grounds of appeal, the court a quo erred in -

(a) Relating to the substantive issues raised in the grounds which it had found to be non-existent; and

(b) In dismissing the appeal instead of striking it off the roll.

5. Alternatively, the court a quo erred in finding that the Arbitrator had properly come to the conclusion that respondent had a legitimate expectation of continued employment with appellant and that appellant's failure to so employ her constituted unfair dismissal.”

APPELLANT'S SUBMISSIONS ON APPEAL

In its submissions before this Court, the appellant has argued, that, in large part, the determination of the court a quo was predicated on a finding that the grounds of appeal had no merit.

This, the appellant submitted, was an incorrect approach.

The court a quo was limited to an assessment of the phraseology of the grounds of appeal, without reference, at that stage, to the merits. Instead, the court assessed the merits of the grounds of appeal in order to determine whether or not they properly raised issues of law. It was for that reason that the court a quo remarked at one stage that it found “…, the arbitrator's reasoning cannot be termed outrageous or irrational.”

The merits were not a relevant consideration in determining the validity of the grounds of appeal.

Therefore, the court a quo conflated the two processes, namely, the assessment of the validity of the grounds of appeal and their sufficiency.

Further, the appellant submitted, that, if, indeed, there were no valid grounds of appeal before the court a quo, the court should have found that there was no valid appeal before it. Consequently, it should have simply struck the matter off roll instead of dismissing it.

A dismissal would ordinarily suggest that the matter was considered on the merits and was then dismissed.

The appellant has further argued, that, there was no legitimate expectation that the contract would be renewed. No evidence of the expectation was given.

Moreover, the resolution on which the respondent's claim was predicated was never officially communicated to her by the full Council of the appellant. In any event, the resolution remained a mere recommendation which meant that Council was at liberty either to accept or reject it.

Lastly, the appellant submitted, that, having found that the respondent was not on a fixed term contract, but, was on a contract without limit of time, the question of legitimate expectation did not, therefore, arise.

Since the acting appointment did not provide for the duration of the contract, she became a permanent employee whose tenure could be terminated on notice as enunciated in the case of Nyamande & Anor v Zuva Petroleum SC43-15.

The arbitrator could not, therefore, apply section 12B of the Labour Act which applies to a person on a fixed term contract.

RESPONDENT'S SUBMISSIONS ON APPEAL

In her response, the respondent has submitted, that, the court a quo was correct in finding that the grounds of appeal were impugning factual findings and that they were, therefore, not valid.

It is not sufficient, in formulating grounds of appeal, to merely assert that a judicial officer erred at law. The particular mistake of law should be stated, and, unless substantiated, such a ground remains one of fact.

The respondent further argued as follows:

Since the sole issue for determination before the court a quo was whether the arbitrator's findings on the issue of legitimate expectation could be impugned, that issue could only be dealt with by considering the merits.

In any event, a court can interrogate the record of the proceedings in order to resolve the question whether there is substance to the grounds themselves. Having found that the grounds raised factual issues, and that the grounds had no merit, the court a quo correctly dismissed the appeal.

Further, the court a quo was correct in finding that the respondent had a legitimate expectation that her contract would be extended.

Lastly, the submission made by the appellant, that, the contract was terminated on notice was not an issue before the court a quo and cannot, therefore, be an issue before this Court.

ISSUES FOR DETERMINATION

On a consideration of the record of the proceedings, and the submissions made by both parties before this Court, it seems to me that three issues arise for determination by this Court:

(i) The first relates to the correct approach in determining whether a ground of appeal raises an issue of law, and whether, in so determining, it is permissible for a court to have regard to the merits of the matter in order to make that determination.

(ii) The second is whether the grounds of appeal before the Labour Court raised questions of law, i.e. whether they were valid grounds of appeal.

(iii) The third is whether the court a quo was correct in dismissing the appeal once it found, as it did, that the grounds of appeal were not valid.

I consider each of the issues in turn.

DETERMINATION OF THE VALIDITY OF GROUNDS OF APPEAL

There is a dispute in this matter on the correct approach by a court in determining whether a ground of appeal raises an issue of law. There is, therefore, need to clarify the correct approach in assessing whether a ground of appeal complies with the legal requirement that it must be predicated on an issue of law.

The term “question of law” is used in three distinct, though related, senses:

(i) First, it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit;

(ii) Second, it means a question as to what the law is; and

(iii) Third, any question which is within the province of the judge instead of the jury or assessors;

See Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S)…,.; Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10.

Used in the three related senses referred to above, the term causes no difficulty.

It is, however, used in a fourth sense, that is: where the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person, who has applied his mind to the question to be decided, could have arrived at such a conclusion.

The nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.

A serious misdirection on the facts amounts to a misdirection in law: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC)…,.

The dispute in this case centres around how an appellant, who alleges a misdirection on the facts, should formulate such a ground in his Notice of Appeal.

To answer this question, I proceed to look at cases previously decided by this Court on the subject.

In Reserve Bank of Zimbabwe v Granger & Anor SC34-01, MUCHECHETERE JA remarked as follows:

“An appeal to this Court is based on the record. If it is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person, who applied his mind to the facts, would have arrived at such decision. And a misdirection of facts is either a failure to appreciate a fact at all, or a finding that is contrary to the evidence actually presented….,.”

In Zvokusekwa v Bikita Rural District Council SC44-15, this Court further added:

“(22)…,. The remarks in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying, that, to constitute a point law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person, properly applying his mind, would have arrived at such a decision.

One must, I think, be guided by the substance of the grounds of appeal and not the form….,.

What is important, at the end of the day, is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.”

The pertinent question in the present case is this: in determining whether a ground of appeal raises an issue of law, should a court be confined to the wording of the ground of appeal only or should it, additionally, have recourse to the record or the merits of the case?

In Chinyange v Jaggers Wholesalers SC24-04 GWAUNZA JA…, writing for the court, stated at page 2 of the cyclostyled judgment:

“…,. The appellant must, in other words, not only allege, but, also show, that the Labour Court misdirected itself on a point of law.”

At page 3, the learned judge continued:

“The appellant has not alleged, nor shown, that the Labour Court misdirected itself, nor that such misdirection, being based on findings of fact, was so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.”

In Mutsuta and Anor v Cagar (Private) Limited SC47-09 SANDURA JA stated at page 6 of the cyclostyled judgment:

“Applying the principles set out in the three cases cited above, I have no doubt in my mind that the appeal raises questions of law. There are allegations in the grounds of appeal that the Labour Court committed misdirections on the facts which are so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. The appeal is, therefore, properly before the court.”

In Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10, this Court remarked at page 5 of the judgment:

“The first ground of appeal is that the Labour Court erred on a question of law in holding that the disciplinary committee was improperly constituted. It is the respondent's submission that this question is one of fact and not law. I agree with the respondent's submission in this regard.”

And at page 7:

“There is no suggestion by the appellant that the court a quo misdirected itself on the facts in coming to the conclusion that the committee was not properly constituted and that such misdirection constitutes a question of law. I would agree with the respondent that this ground of appeal raises a question of fact and not law.”

It is correct, that, in Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10, the impression was created that a court can have regard to the merits in order to determine the validity of a ground of appeal.

It is clear, however, on a proper reading of the case, that, in fact, the court determined the validity of the grounds of appeal based only on the specific allegations made in the grounds of appeal and not the merits of the matter.

Everything considered, therefore, the correct approach, in my view, is that, in determining whether a ground of appeal raises an issue of law, a court will confine itself to the wording of the ground of appeal only and not to the merits of the matter.

The merits of the matter only become relevant if a ground of appeal is found to be valid.

Whether or not an appellant's case has merit and whether or not the appeal should succeed are issues to be determined separately - and only after a finding on the validity of the grounds of appeal.

A ground of appeal which attacks findings of fact must, therefore, not only allege that the lower court misdirected itself on the facts, but, must go further and show how that misdirection came about.

Merely alleging a misdirection, without further substantiation, would not be enough, as the attack would remain one against a factual finding.

In other words, in alleging a misdirection on the facts, the ground of appeal must also show in what way those findings of fact are irrational.

To the extent, therefore, that the decision of this Court in Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10 may have created an impression to the contrary, it does not reflect the correct approach and should therefore, to that extent, not be followed.

THE GROUNDS OF APPEAL BEFORE THE COURT A QUO - WHETHER VALID

This is really the crux of the matter.

To answer the question, it is necessary to look at the individual grounds that were considered by the court.

The judgment of the court a quo reflects that grounds one and two were abandoned at the hearing of the matter. Essentially, therefore, there were three grounds of appeal before the court a quo. The court a quo found that these attacked factual findings.

I proceed to consider each of these in turn.

The third ground of appeal before the Labour Court was couched in the following manner:

“3 The Honourable Arbitrator made a finding to the fact, that, the respondent had legitimate expectation of renewal of the contract based on the recommendations made during council meetings. The Honourable Arbitrator erred at law in relying on the proceedings and resolutions of these meetings.”

Whilst the ground could have been more elegantly phrased, there is no doubt in my mind that it did, in fact, raise the question whether the arbitrator could base his finding, that the respondent had a legitimate expectation of re-engagement, on proceedings and resolutions of a Council meeting.

As stated in Zvokusekwa v Bikita Rural District Council SC44-15, one should be guided by the substance rather than the form.

I am satisfied, that, the court a quo was wrong in treating this ground as one attacking a finding of fact.

The fourth ground of appeal before the court a quo read as follows:

“The Honourable Arbitrator erred grossly on the facts in finding that the respondent was legitimately entitled to expect the renewal of her contract. The arbitrator's findings in this regard are so grossly unreasonable such that no reasonable person properly applying his mind to the matter would have arrived at such a decision.”

The gross aberration on the facts was not articulated. It remained a bald allegation impugning findings of fact. It did not state how and in what way the arbitrator grossly erred in reaching the conclusion that was sought to be impugned.

In these circumstances, it remained an attack against a simple finding of fact, and, clearly, does not raise any issue of law.

Ground 4.1 read:

“4.1 The Honourable arbitrator made a finding that the fact that the Executive Committee made its decision subject to the approval of full council or the Minister did not deny respondent legitimate expectation since her appointment on 7 June 2012 was not blessed with council or ministerial approval. The arbitrator's finding in this regard is grossly unreasonable as:

(a) Whether or not the consent of Council or the Minister was asked for and/or obtained for the 7 June 2012 appointment was never an issue;

(b) In any event, the 7 June 2012 appointment was a temporary appointment while the appointment allegedly expected is a 3 (three) year appointment;

(c) Further, and any event, it is the employer's prerogative to choose which appointment is subject to approval and which not (sic). Once one is informed that a specific appointment is subject to approval, then, without such approval, no legitimate expectation can arise.”

The difficulty with this ground was its lack of particularity and precision. It sounded argumentative.

Unlike in appeals from the High Court, there has not been a requirement, in labour cases, that the grounds of appeal must be clear and concise.

However, the Labour Court Rules 2017, in LC4, now require grounds to be clear and concise.

This was not a requirement at the time the present appeal was argued before the Labour Court.

In my view, the ground, though not formulated with precision, did indeed raise an issue of law.

What the ground says, in a nutshell, is that, whilst the recommendation that the respondent's contract be renewed was subject to approval by both the Council and the Minister, this did not affect the decision of the appellant to appoint her in an acting position for an indefinite period.

The appellant was further saying, that, the issue whether or not the consent of the Council or Minister was sought and obtained was not an issue before the arbitrator, and that, in any event, the appointment was temporary.

Lastly that, once an employee is advised that a re-engagement is subject to approval, then, without such approval, no legitimate expectation of re-engagement can, in this situation, arise.

I am satisfied, that, properly considered, ground 4.1 did in fact raise issues of law and that the court a quo was wrong in reaching a contrary conclusion.

Ground 4.2 stated, and I quote:

“4.2.The arbitrator also made a finding that a year's delay in obtaining council or ministerial approval entitled respondent to legitimately expect that her three (3) year fixed term contract will be renewed. This finding by the arbitrator is so grossly unreasonable such that no person properly applying his mind to the matter would arrive at such a decision.

4.3 The arbitrator also held that no proof of a negative decision from the decision maker was furnished, and, as a result, respondent was entitled to legitimately expect that her contract will be renewed. The Arbitrator's decision in that respect is so grossly unreasonable such that no person applying his mind to the matter would arrive at such a decision.”

What the appellant sought to challenge in the court a quo was the conclusion reached by the arbitrator on the facts which were before him.

The appellant was saying delay, on its own, could not have led the respondent to believe that her employment would be extended by a further three years and that a conclusion to that effect would be irrational.

The court a quo was therefore wrong in coming to the conclusion that grounds 4.2 and 4.3 did not raise any questions of law.

In all the circumstances, therefore, I am satisfied, that, save for the fourth ground of appeal, the court a quo was not correct when it non-suited the appellant on the preliminary point raised; that the appeal before that court was not predicated on issues of law.

Having made that decision, the court a quo went on to dismiss the appeal in its entirety.

That this was also improper goes without saying.

COURT A QUO SHOULD HAVE STRUCK THE MATTER OFF THE ROLL

One of the complaints by the appellant is that once the court a quo had come to the conclusion that the appeal before it was a nullity, on account of defective grounds of appeal, it should not have dismissed the appeal, but, rather, struck the matter off the roll.

I agree entirely with this submission.

Once the court had determined that all the grounds of appeal before it were attacking factual findings and not issues of law, it should have found that there was, therefore, no proper appeal before it; and, if there was no proper appeal before it, there was, in fact, nothing before it; and, if there was nothing before the court, there was therefore nothing to dismiss.

The only appropriate course of action, in these circumstances, would have been to strike the matter off the roll.

An appellant whose matter is struck off would not be without a remedy. He can still apply for condonation and extension of time in which to appeal. But, if a matter is dismissed, then, in reality, that is a final determination.

DISPOSITION

I am satisfied, that, the court a quo was wrong in determining, as it did, that the grounds of appeal did not, in their entirety, raise issues of law. The appeal must therefore succeed.

The appellant has largely been successful, and is, therefore, entitled to an award of the costs of this appeal.

In the result, it is ordered as follows:

1. The appeal succeeds, in part, with the respondent paying the costs of the appeal.

2. The judgment of the court a quo is set aside and in its place the following is substituted:

“Save in respect of ground 4, the preliminary point raised by the respondent, in respect of the remaining grounds, is dismissed.”

3. The matter is remitted to the Labour Court for a determination on the merits.

SC86-23 : GUTU RURAL DISTRICT COUNCIL vs JASON MUGAYO
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the Labour Court handed down on 11 November 2022 wherein it dismissed the appellant's appeal against a decision of a Designated Agent of the National Employment Council for Rural District Councils.FACTUAL BACKGROUNDThe respondent was employed by the appellant as a Housing ...

FACTUAL BACKGROUND

The respondent was employed by the appellant as a Housing Officer. He was indicted for a disciplinary hearing on 11 November 2017 before the appellant's Disciplinary Committee. He was charged with 'committing any act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment' in terms of clause 8(d) of Statutory Instrument 87/2017; specifically, that, he unilaterally and unlawfully exempted some council tenants from paying rentals which resulted in the appellant losing revenue.

The Disciplinary Committee found in favour of the employer and dismissed the respondent.

He then appealed the decision to the Internal Appeals Committee which upheld the decision of the Disciplinary Committee.

Aggrieved by the decision, the respondent again appealed to the National Employment Council Exemptions Committee (“the Exemptions Committee”) which set aside the decision of the Internal Appeals Committee and referred the matter back to the Disciplinary Committee, for a hearing de novo, on the basis that the Disciplinary Committee was not properly constituted when it presided over the matter.

The matter was heard again by the Disciplinary Committee and it reached the same verdict and penalty. The respondent then appealed to the Internal Appeals Committee which, again, upheld the dismissal.

On 13 March 2018, he further appealed the dismissal to the National Employment Council Exemptions Committee (the Exemptions Committee) which heard the matter on 14 March 2018.

On the basis that the Exemptions Committee failed to conclude the matter within the time stipulated in section 14 of SI 87/17, and on 26 November 2018, the respondent wrote to the Designated Agent advising him of that fact.

Consequent to the respondent writing to the Designated Agent complaining about the failure by the National Employment Council Exemptions Committee to determine the matter within 30 days, the Exemptions Committee handed down reasons for its determination on 4 December 2018.

On 11 March 2021, the respondent filed an appeal with the Labour Court under cover of case number LC/H/57/19 seeking a referral of his appeal in accordance with clause 14(c) of SI 78/17.

He was seeking that the appeal be disposed of by the Designated Agent due to non-observance of the timelines and the lack of jurisdiction of the National Employment Council Exemptions Committee (the Exemptions Committee).

The grounds of appeal were couched as follows:

1. The Exemptions Committee erred at law in determining a matter without jurisdiction outside the prescribed thirty (30) working days and after the matter had been referred to the Designated Agent for disposal.

2. The Exemptions Committee erred at law in making a determination without providing reasons for such determination.

The respondent sought the following relief:

'(a) That the appeal succeeds with costs.

(b) That the decision of the Exemptions Committee be set aside.

(c) That the matter shall be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the appellant on 26 November 2018.'

On 22 May 2020, the Labour Court allowed the appeal under case number LC/H/57/19. It granted the following order:

“(a) That the instant appeal succeeds with costs.

(b) That the decision of the Exemptions Officer be set aside.

(c) That the matter be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the respondent.”

The respondent then approached the Designated Agent on the basis of this order of the Labour Court.

On 21 June 2021, the parties attended proceedings before the Designated Agent who advised the parties that he would proceed in terms of section 63(3a) of the Labour Act (the Act).

The parties were invited to file written submissions and the Designated Agent proceeded to pronounce on the matter on 19 October 2021.

In his determination, he made a finding that he lacked the requisite jurisdiction to preside over the matter as it raised review grounds. He, however, went on to deal with the substantive aspects of the matter and ultimately gave an order reinstating the respondent.

Disgruntled by the determination of the Designated Agent, the appellant appealed to the court a quo on 17 November 2021. The court found that the Designated Agent properly dealt with the matter.

It found that the issue of grading was before the Designated Agent and that he properly disposed of it. In addition, it found that the reinstatement of the respondent was proper as reinstatement could be ordered where the merits of the matter have not been entertained. In the result, the court a quo dismissed the appeal.

It is against this judgment that the present appeal was noted.

SUBMISSIONS ON APPEAL

At the hearing of the appeal, the court asked counsel for the appellant to address the question of whether section 63(3a) as read with section 93 of the Labour Act confer appellate jurisdiction on a Designated Agent in view of the referral of an appeal to him by the Labour Court.

Counsel for the appellant submitted, that, the matter was referred for hearing before the Designated Agent as an appeal. He contended that the National Employment Council Exemptions Committee (the Exemption Committee) was seized with an appeal that it failed to conclude within the prescribed 30 days hence the appeal was then placed before the Designated Agent.

He submitted that section 63(3a) of the Labour Act does not confer appellate jurisdiction on Designated Agents, but, that a provision in SI 87/17 allows for matters not determined within the stipulated timeframe to be referred to a Designated Agent.

He asserted that Designated Agents have no such powers to hear appeals.

It was his submission that the Labour Court ought to have presided over the matter instead of deferring it to the Designated Agent. He relied on section 14 of SI 87/17 which provides that an appeal against the determination of the National Employment Council Exemptions Committee (the Exemptions Committee) lies with the Labour Court.

Counsel submitted that if a matter is not concluded within 30 days, it is then supposed to be referred to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act.

On the merits, counsel submitted that the court a quo erred in upholding the decision of the Designated Agent when he had conceded that he did not have jurisdiction, but, nonetheless, went on to deal with the substance of the matter.

In addition to this, it was his contention that the court a quo misdirected itself by upholding the appeal and reinstating the respondent without having dealt with the merits of the matter.

In this light, he moved that the matter be remitted to the Labour Court to deal with the matter on the merits and that the decision of the Designated Agent be set aside.

He also stated, that, if the respondent's contention was that his matter was not heard within 30 days, the correct procedure available to the respondent was to file an application for review and not launch an appeal as he did.

Conversely, the respondent submitted that his appeal lay with the Designated Agent in terms of section 14 of SI 87/17 given that the matter was not heard and concluded by the National Employment Council Exemptions Committee (the Exemptions Committee) within 30 days.

He was convinced that the determination of the Designated Agent, despite the absence of jurisdiction, was proper as well as the accompanying order for reinstatement. He believed that the Designated Agent has powers conferred upon him to give redress in matters such as his.

THE LAW

Section 63(3a) of the Labour Act provides as follows:

“(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

It is common cause that the provision that confers power on the Designated Agent to give redress to parties is section 63(3a) of the Labour Act.

The role of a Designated Agent was explained in the judgment of Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 wherein the court remarked as follows…,.:

“Section 63(3a) of the Act allows a designated agent, upon authorisation by the Registrar of Labour, to either redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention. That is the case where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered.

Section 63(3b) of the Act expressly ousts the jurisdiction of a labour officer where a designated agent is authorised to redress any dispute or unfair labour practice in terms of section 63(3a) of the Act….,.

What is key in understanding what a designated agent can or cannot do is to understand the meaning of the phrase 'redress any dispute' used in section 63(3a) of the Act.

When used as a verb, the word 'redress' according to the Oxford English Dictionary, means to remedy or set right an undesirable or unfair situation. A designated agent authorised by the Registrar of Labour redresses a dispute referred to him or her. He or she offers a remedy or sets right an unfair situation.”

In as much as the above case discusses the role of a Designated Agent, it does not expressly deal with whether or not a Designated Agent has any powers conferred upon him to deal with appeals.

From a reading of the provision, there is nothing suggesting that a Designated Agent has appellate jurisdiction.

To have an appreciation of the powers bestowed upon a Designated Agent, one has to examine what it is that the Designated Agent has to do in redressing or attempting to redress a dispute.

In Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20…, it was stated;

“A designated agent may only exercise one power over a dispute. He or she may redress the dispute or attempt to redress it. He or she cannot do both. If he or she chooses to redress the dispute by hearing and determining the issues in dispute, he or she cannot, at the same time, attempt to redress the dispute.

It is clear from the provisions of section 63(3a) as read with section 93(1) of the Act that a designated agent can only proceed in terms of section 93 of the Act if he or she has not redressed the dispute.

He or she would be attempting to settle the dispute through conciliation.

There can be no attempt to settle a dispute which has been redressed.

The provisions of section 93 of the Act would apply when the power to be exercised by the designated agent is an attempt to redress the dispute through conciliation.”

From the above, it is clear that a Designated Agent can do one of two things, that is;

(i) Redress a dispute by hearing and determining the issues in dispute; or
(ii) Attempt to redress the dispute through conciliation.

He cannot do both.

What is coming up from the above-quoted excerpts from Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 is that the Designated Agent will be redressing or attempting to redress a dispute in a fresh hearing.

Given the above, it is apparent that a Designated Agent does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

In casu, the matter was referred to the Designated Agent by the Labour Court in terms of section 14(c) of S.I. 87/17 which provides as follows:

“Appeals to the NEC

14. The Exemptions Committee of the National Employment Council shall hear and conclude appeals referred to it within seven working days;

(a)…,.

(b)…,.

(c) An appeal against the decision of the Exemptions Committee shall lie with the Labour Court;
if a matter is not determined or concluded within 30 working days, the employee or employer concerned may refer such matter to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act [Chapter 28:01].”

The 'matter' being referred to in subsection (c), in the context of the present matter, is an appeal against the determination of the Appeals Committee.

In other words, the above provision purports to give the Designated Agent power to 'redress or attempt to redress' the determination of the Appeals Committee.

This Court, in a line of authorities, has spoken on this, that, a Designated Agent cannot preside over a matter where a determination has been made: see Watyoka v Zupco (Northen Division) SC87-05; Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19; and Living Waters Theological Seminary v Rev Chikwanha SC59-21.

These matters were analysed in the recent case of Nicholas Mukarati v Pioneer Coaches (Private) Limited SC34-22 where MATHONSI JA concluded on the issue as follows:

“The reasoning in Mabeza, supra, rhymes with that in Sakarombe N.O. & Anor v Montana Carswell Meats (Pvt) Ltd SC44-20 where the court was called upon to consider the ambit of the jurisdiction of a Labour Officer under section 93 of the Act where a matter is referred to him or her in terms of section 8(6) of the National Code of Conduct.

It concluded that under section 93(1) of the Act, a Labour Officer is only mandated to preside over a fresh hearing where a complaint has been lodged. The Labour Officer does not preside over any matter where a determination has been made or one in which completed disciplinary proceedings were conducted at the workplace.”

Although the above authorities were dealing with the powers of a labour officer, the same principle applies with equal force to a Designated Agent, as, in terms of section 63(3a) of the Labour Act “the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

Section 8(6) of the National Code, which was under discussion in these cases, is similarly worded to section 14(c) of SI 18/17.

Further down on the same page, MATHONSI JA observed the following:

“In fact, in Living Waters Theological Seminary v Chikwanha, supra, the court went further to state that the provisions of section 8(6) of the National Employment Code are rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.”

The same can be said about section 14(c) of S.I. 87/17.

It is rendered inoperative by being ultra vires and inconsistent with the provisions of sections 63(3a) and 93 of the Labour Act.

In casu, the Designated Agent presided over a matter over which he did not have jurisdiction.

When there is a determination on the merits of a dispute, a Designated Agent has no jurisdiction, under section 93 of the Labour Act, to redress or attempt to redress such a dispute.

The ramifications of what the Designated Agent did in this situation are clear.

There is no power conferred upon him to hear appeals in terms of the Labour Act.

The matter was improperly referred to him, and, consequently, the proceedings before him and the resultant appeal before the court a quo were a nullity.

There was therefore no proper appeal before both the Labour Court and this Court.

Regarding costs, the appellant had prayed for costs of the appeal. In view of the fact that the matter turned on the interpretation of section 14 of SI 18/17 it would be in the interests of justice that there be no order as to costs.

Given the irregularities deliberated in this judgment; in the result, it is ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of this Court's review powers in section 25(1) of the Supreme Court Act [Chapter 7:13] the proceedings before the Designated Agent and the Labour Court are hereby set aside.

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA

On 9 January 2008, the respondent engaged the appellant as an Operations Contract Manager in terms of a written agreement.

The agreement provided that the appellant would be an area manager responsible for Ngezi North.

The preamble to this agreement read as follows:

“Sandvik Mining and Construction Zimbabwe have entered into an agreement with various mines to provide maintenance service contracts. Under the terms of these contracts, Sandvik Mining and Construction Zimbabwe has agreed to make human resources available to these mines in order to maintain their equipment.”

At the time of the occurrence of the events central to the dispute between the parties, the appellant was based at Unki Mine.

For reasons known only to the parties, its exact location has never been revealed. It was probably assumed that the location plays very little part in the determination of the dispute.

The parties may be correct.

Early in the morning of 8 October 2014, the appellant and a colleague, one Christopher Tias, left the mine proceeding to Harare. It is common cause that Christopher Tias was the appellant's subordinate.

The appellant was driving.

Sometime around 7am the appellant received a telephone call from Sandi Zaranyika, his immediate supervisor based in Harare. The connection was bad resulting in Sandi Zaranyika terminating the phone call.

When the duo were near Featherstone, Sandi Zaranyika sent a message on Christopher Tias's mobile phone.

Although addressed to Christopher Tias, it is common cause between the parties, that, the appellant was the intended recipient.

He was told to go back to the mine and not to come to Harare until the situation at the mine had become stable.

It is common cause that the appellant was shown the message by Christopher Tias. They proceeded to Harare nevertheless.

The appellant, instead, called a subordinate at the mine. He was given information on the situation. On arrival in Harare, he was informed that the meeting had been cancelled. He was instructed to return to the mine.

On the same day, that is, 8 October 2014, he was given notification to attend a disciplinary hearing on 22 October 2014. The charge against him was that he had willfully disobeyed a lawful order in contravention of section 4(b) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (“the National Code of Conduct”).

The disciplinary hearing was held as scheduled and he was convicted of misconduct on the single charge and was dismissed from employment.

He appealed internally but was not successful.

In accordance with the Code of Conduct, the matter was referred, by the appellant, to a labour officer.

The labour officer was unable to resolve the matter and it was referred to compulsory arbitration for resolution.

The arbitrator found, that, the appellant had not willfully disobeyed a lawful order.

It was his finding, that, the only thing that the appellant did not do was to return to the mine. It was also his conclusion that it was not necessary for the appellant to go to the mine to physically check the situation in view of the fact that “someone competent to do his duties was fully in charge of the mine and confirmed that the situation was under control.”

As a result of the above findings, the arbitrator found that the appellant had committed no wrong justifying his dismissal. He ordered that the appellant be reinstated without loss of salary and benefits, or, in lieu of reinstatement, that he be paid damages if his employment was no longer tenable.

The respondent appealed to the Labour Court, which appeal succeeded.

The Labour Court found, that, the appellant had committed the misconduct that he had been charged with. The learned judge in the court a quo, as a result, found that there was wilful disobedience of a lawful order. The court therefore allowed the appeal and set aside the arbitral award in its entirety.

It is against that decision that the appellant approaches this Court.

The grounds of appeal upon which the appellant seeks relief are the following:

(1) The court a quo grossly misdirected itself on the facts, amounting to a misdirection at law, in finding that the appellant's conduct, in ascertaining the situation at the mine through his subordinate, Luis Matizha, constituted a wilful disobedience to a lawful order. Such a finding is grossly unreasonable so as to raise a sense of shock that no reasonable tribunal properly applying its mind to the question and the order given by the employer would come to that conclusion.

(2) The court a quo grossly misdirected itself on the facts, amounting to a misdirection at law, in failing to appreciate that the effect of the evidence of Luis Matizha showed that he had managed the situation at the mine to be stable. Thus, the court's finding that the witness's evidence connoted that all was not well at the mine was so outrageous in its defiance of logic that no sensible person who has applied his mind to the question to be decided could arrive at it.

This matter proceeded to compulsory arbitration through a reference to the labour officer in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 (the National Code of Conduct).

The documentation in terms of which the matter was referred to the labour officer is not on record. His deliberations are not on record. His own referral to compulsory arbitration is also not on record.

What is on record is what the arbitrator recorded as the terms of reference by the labour officer to arbitration. The terms of reference agreed by the parties were the following:

Whether or not the claimant was unlawfully dismissed; if so, to determine the appropriate remedy.

It is obvious that, in casu, the termination was effected in terms of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 (the National Code of Conduct).

The appellant in this dispute was charged with misconduct in terms of the National Employment Code of Conduct. He was subjected to a disciplinary hearing in terms of a Code of Conduct, as required by the law, after which he was dismissed from employment.

Given that the appellant was subjected to a properly conducted disciplinary process which culminated in a verdict and a dismissal consequent thereto, a reference to the labour officer, alleging unfair dismissal, does not accord with the law.

The labour officer did not deal with the merits of the disciplinary process.

On that premise, it cannot be said that the dismissal was unfair as envisaged in terms of the Labour Act.

It is therefore clear to the naked eye, that, he could not lodge a complaint with the labour officer alleging unfair dismissal.

The labour officer would not have the jurisdiction to entertain any complaint from the appellant, as what the appellant was seeking was the setting aside of the determination of the disciplinary process.

This process could only be set aside through an appeal or a review.

The process before the labour officer was none of the above.

In casu, since the disciplinary proceedings against the appellant were conducted under the aegis of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 it stands to reason that the matter was referred to a labour officer in accordance with the provisions of the same.

Sections 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations, S.I. 15 of 2006 provide as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days or receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

In casu, a determination on the merits had been made by the disciplinary authority, as provided for in the Code of Conduct.

The reference to the labour officer, in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006, would, as a consequence, seem to be in direct contrast to the provisions of section 101(5) and (6) of the Labour Act.

When one has regard to section 8(6) of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Employment Code) one may be misled into assuming that even completed disciplinary hearings should be referred to a labour officer.

It is not so.

In sum, this means that the proceedings before the labour officer are a nullity as are the proceedings before the arbitrator.

It is therefore disquieting to note what the arbitrator said:

“Unless there are other hidden issues, there is absolutely nothing wrong with what the claimant did that warrants dismissal. Moreso when one considers the fact, that, the claimant had a clean record and also making decisions from a managerial realm, there was nothing weird done to warrant dismissal. The issue is simply trivial to say the least; for it seems the respondent simply wanted the claimant to go back to the mine even though the assignment could have been simply and easily done by just making a phone call and check on the stability of operations at the mine, like what the claimant did.”

A perusal of the record will show that a claim for unfair dismissal was presented before the arbitrator.

In his statement of claim, the appellant made reference to the disciplinary proceedings instituted against him and the fact that he was found guilty of the charge of misconduct preferred against him resulting in his dismissal from employment. He also made reference to the fact that he had appealed against the verdict and the penalty to the Appeals Authority which authority confirmed both the verdict and the penalty.

The appellant ends his claim by stating that he was wrongly found guilty.

As a consequence, he prays for reinstatement, back-pay from the date of dismissal, and damages in lieu of reinstatement.

It is clear that the claim brought by the appellant, although disguised as an unfair dismissal, was in actual fact an appeal against the dismissal of his appeal by the Appeals Authority.

This much is obvious from his statement that he was wrongly found guilty.

What he sought was a reversal of the findings of the disciplinary authority.

The question is: did the arbitrator have the jurisdiction to act as an Appeal Tribunal and set aside the decision of the Appeals Authority?

This matter made its way to the arbitrator as a reference to compulsory arbitration from a labour officer acting in terms of section 93 of the Labour Act [Chapter 28:01].

His function, under section 93 of the Labour Act, is to conciliate or settle the dispute, failing which he issues a Certificate of No Settlement and refers it to an arbitrator, under section 93(5) of the Labour Act, where the dispute is a dispute of right.

In Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170, at p172, this court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a Code of Conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii))…,.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the Code of Conduct.”

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were:

(i) Firstly, the fact that a determination had been made; and

(ii) Secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

These remarks were made in consideration of the powers that a labour officer is imbued with under section 93 of the Labour Act prior to its amendment in 2015 by Act 5 of 2015.

It is obvious, therefore, that, completed proceedings under a Code of Conduct are not subject to scrutiny by a labour officer as that process is confined to initial complaints where a labour officer exercises his powers under section 93 of the Labour Act in order to conciliate, failing which he is empowered to refer the parties to arbitration.

The view I take, therefore, is that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been procedural process that has been completed.

His jurisdiction is limited to that of a tribunal of first instance.

In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

It is clear, that, in this case, the labour officer presided over a matter over which he did not have any jurisdiction.

As stated in Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170, once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Labour Act.

In this context, the implications of what the arbitrator did are obvious.

He was aware that the appellant had been dismissed as a result of a finding of guilt made by a disciplinary body set up under a Code of Conduct. He was equally aware that an appeals authority, set up under the same Code of Conduct, had confirmed not just the findings of guilt on the part of the appellant but had also confirmed the penalty of dismissal.

Notwithstanding this knowledge on his part, the arbitrator proceeded to entertain a claim, the premise of which was to set aside proceedings of a disciplinary body.

He obviously was not acting as an Appeals Tribunal.

He however considered himself properly seized with the proceedings. The latter proceedings were, in fact, a re-hearing of the facts of the dispute.

It is pertinent to note, that, the arbitrator did not have regard to the record of proceedings of the disciplinary hearing. The ruling by the arbitrator was couched in a manner which ignored the findings of the disciplinary tribunal. The arbitrator proceeded to substitute his own determination on the facts as if a disciplinary hearing had not been conducted and the appellant dismissed consequent to a finding of guilt.

He exercised a power he clearly did not have.

And yet, by the stroke of a pen, without exercising any appeal jurisdiction over the disciplinary body, the arbitrator went on to set aside the findings of fact reached by the disciplinary authority, which were confirmed by the appeal structures of the respondent.

Such a result would, in my view, lead to an absurdity.

To describe the process by which this decision was reached as being irregular is mild. It is not only irregular, it was unlawful, and, nothing can stand on that decision.

I conclude, therefore, that, the labour officer did not have jurisdiction to hear a complaint from the appellant, of whatever nature, and that the referral to compulsory arbitration was unlawful, and the proceedings before the arbitrator were, as a result, an irregularity.

In this case, the appeal is against the decision of the Labour Court, which set aside the arbitral award.

The court, in determining the appeal before it, had regard to the record of proceedings of the disciplinary hearing.

In my view, very little purpose would be served in setting aside the proceedings before the arbitrator. I intend to consider the appeal in light of the findings by the Labour Court with regard to the disciplinary proceedings.

At issue before the court a quo, and this Court, is the statement forming the basis of the charge.

The contention of the respondent is that the appellant failed to adhere to an instruction lawfully issued by his superior at the work place. On the other hand, the contention of the appellant is that he did not deliberately defy an instruction, and that he lacked the requisite intention to disobey the instruction.

The sole issue therefore is whether or not he willfully disobeyed a lawful instruction.

What constitutes wilful disobedience to a lawful instruction at the workplace was defined by GUBBAY JA…, in Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S)…, wherein the learned jurist said:

“Willful disobedience or wilful misconduct, the words, in my view, connote a deliberate and serious refusal to obey. Knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence. It must be disobedience in a serious degree, and not trivial – not simply an unconsidered reaction in a moment of excitement. It must be such disobedience as to be likely to undermine the relationship between the employer and the employee, going to the very root of the contract of employment.”

The contention is made, that, the court a quo erred in finding the appellant guilty of the offence of wilful disobedience to a lawful order when the facts and the circumstances of the matter, and the nature of the instruction given, does not support the finding made.

The appellant further argues, that, there was no willful disobedience because the SMS which was sent by his immediate superior was conditional upon the stability of the situation at the mine.

The SMS read:

“Misheck, LHD 24 is down at Unki Mine. Go back to the mine, do not come to Harare until the situation is stable.”

The court a quo said the following:

“The order needs no interpretation. The respondent was advised, LHD 24 was down, which was a fact. He was told to go back to Unki Mine - he did not. He was told not to proceed to Harare until the situation was stable - he did proceed when the situation was not yet stable.

I say this because Luis Matizha, in his evidence, said, he told the respondent about the issue.

The respondent was not a shop floor employee, he was a senior employee who is expected to know the exigencies of accountability, especially in such a case where the appellant's role at Unki Mine was to maintain the machinery.

The respondent, being the person in charge, it would be expected that some situations required his personal attendance. He failed to do so, despite being given an order.

The test for willfulness is an objective test: see Matereke case. A reasonable man in the respondent's shoes would have known that he was obliged to go back and attend to the situation.”

The interpretation of the SMS by the court a quo was on point.

The appellant was told to go back to the mine. He was not to come to Harare until the situation had stabilized. He was not told to ascertain the status through the telephone.

He deliberately ignored the clear instruction to go back to the mine. His presence at the mine was imperative.

The preamble to his contract of employment made it clear that he was assigned to the Ngezi Mine site to enable the respondent to perform its own contracts with various mines.

The evidence adduced before the disciplinary authority supports the finding by the court a quo, that, the situation at the mine warranted the presence of the appellant.

The court a quo correctly found, that, by failing to attend to the mine as instructed, the appellant willfully disobeyed a lawful instruction.

The court a quo was correct in allowing the appeal and setting aside the arbitral award.

In the premises, the appeal is devoid of merit and ought to be dismissed. It is accordingly dismissed with costs.

PATEL JA: I have read the judgment of GOWORA JA, with which judgment BHUNU JA concurs, and wish to add the following remarks.

While I agree that the appeal is devoid of merit and ought to be dismissed, I have certain reservations apropos the preliminary observations in the main judgment curtailing the jurisdictional role of labour officers and arbitrations under the governing statutory provisions.

In particular, I am inclined to the view, that, section 8 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (the National Code of Conduct), construed in a purposive manner, is reconcilable with sections 93 and 101 of the Labour Act in such manner as to accommodate the jurisdictional competence of labour officers and arbitrators over labour disputes emanating from internal disciplinary proceedings.

Nevertheless, given the view that I take of the merits of this matter, I do not think it necessary to elaborate the aforesaid reservations in the context of this particular case.

I fully concur with the reasoning and findings of GOWORA JA to the effect, that, the arbitrator misdirected himself on the substantive merits by trivialising the degree of culpability attributable to the appellant's misconduct in casu.

By the same token, I fully endorse her conclusion that the decision of the court a quo, on the merits, is unassailable and that it quite correctly set aside the impugned arbitral award in its entirety.

In short, there is no doubt that the appellant was guilty as charged, of wilful disobedience of a lawful order, and that, consequently, he was justifiably subjected to the ultimate penalty of dismissal.

For these reasons, I agree that the appeal be dismissed with costs.

BHUNU JA: I wish to comment as follows:

I have read the comments by my brother PATEL JA and I do not see how the three (3) sections alluded to by PATEL JA can be reconciled to accord a Labour Officer jurisdiction that he does not have.

It is inconceivable that a Labour Officer can assume jurisdiction over a completed matter by another tribunal without being clothed with appellate or review jurisdiction.

In the absence of specific statutory provisions, it is only appellate or review jurisdiction that authorizes a higher court or tribunal to intervene in the conduct or verdict of a subordinate court or tribunal.

In the circumstances, both the Labour Officer and the Arbitrator acted without power, jurisdiction, or authority to intervene in a matter completed in terms of the Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006 (the National Code of Conduct).

It is for the foregoing reasons that I agree with my sister GOWORA JA.

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Discipline re: Disciplinary Hearings iro Approach ito Procedural Irregularities & Resolving Matters on Technicalities

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SC35-12 : CANESIUS CHIPANGURA vs ENVIRONMENTAL MANAGEMENT AGENCY Ruled By: OMERJEE AJA

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC07-22 : POLICE SERVICE COMMISSION and THE COMMISSIONER GENERAL OF POLICE vs DHERERAI MANYONI Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC44-20 : TAFADZWA SAKAROMBE N.O. and WONDER SIMUKA vs MONTANA CARSWELL MEATS (PVT) LTD Ruled By: GOWORA JA, PATEL JA and BERE JA

SC52-19 : ZIMBABWE OPEN UNIVERSITY vs PERPETUAL NDEKWERE Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

SC86-23 : GUTU RURAL DISTRICT COUNCIL vs JASON MUGAYO Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED Ruled By: GOWORA JA, PATEL JA and BHUNU JA

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Zimbabwe

SC18-15 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs B. SHONHIWA and F. GARATSA and P. ZARANYIKA
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

SC21-21 : ZIMBABWE UNITED PASSENGER COMPANY vs BEAULAR MASHINGE
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

SC52-15 : TRIANGLE LIMITED vs VUSIMUSU SIGAUKE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC53-16 : PG INDUSTRIES (ZIMBABWE) LIMITED vs MARK BVEKERWA and 34 OTHERS
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

SC30-15 : DUNMORE MUPANDASEKWA vs GREEN MOTOR SERVICES (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

Appealed
CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED
Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

View Appeal
SC01-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE
Ruled By: MUZENDA J

HMT23-20 : IDAH TAGARIROFA vs NHEDZIWA HIGH SCHOOL DEVELOPMENT COMMITTEE
Ruled By: MUZENDA J

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: KUDYA AJA

SC11-22 : ZIMBABWE ANTI-CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: KUDYA AJA

SC34-22 : NICHOLAS MUKARATI vs PIONEER COACHES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA
Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

SC48-13 : STANLEY MAJURIRA vs TREDCOR (ZIMBABWE) (PVT) LTD
Ruled By: PATEL JA

SC02-16 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs RONALD GODIDE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

SC62-17 : PAUL GARWE vs THE PUBLIC SERVICE COMMISSION
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA JA

SC55-18 : WARDLOVE MUPARAGANDA vs COMMERCIAL WORKERS UNION OF ZIMBABWE
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

View Appeal
SC06-17 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED
Ruled By: GWAUNZA JA, PATEL JA and GUVAVA JA

SC17-20 : ERASMUS GUDZA vs CITY OF HARARE
Ruled By: HLATSHWAYO JA, GUVAVA JA and CHIWESHE AJA

SC35-12 : CANESIUS CHIPANGURA vs ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: OMERJEE AJA

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC07-22 : POLICE SERVICE COMMISSION and THE COMMISSIONER GENERAL OF POLICE vs DHERERAI MANYONI
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC44-20 : TAFADZWA SAKAROMBE N.O. and WONDER SIMUKA vs MONTANA CARSWELL MEATS (PVT) LTD
Ruled By: GOWORA JA, PATEL JA and BERE JA

SC52-19 : ZIMBABWE OPEN UNIVERSITY vs PERPETUAL NDEKWERE
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

SC86-23 : GUTU RURAL DISTRICT COUNCIL vs JASON MUGAYO
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC91-19 : MISHECK MABEZA vs SANDVIK MINING (2) CONSTRUCTION (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and BHUNU JA