DISTRIBUTABLE (32)

Judgment No. SC 38/03

Civil Appeal No. 307/01

NIXON RAMANI v NATIONAL SOCIAL SECURITY AUTHORITY

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & ZIYAMBI JA

HARARE, JULY 15 & NOVEMBER 27, 2003

T Biti, for the appellant

F Girach, for the respondent

ZIYAMBI JA: The appellant, who was employed by the respondent as a compliance inspector was, in August 1999, suspended from duty with full benefits pending the outcome of disciplinary charges to be brought against him. The charges were set out in a letter to the appellant dated 16 August 1999, in which the appellant was charged with misconduct arising from the falsification of travel and subsistence claims which he made to the respondent. A disciplinary hearing was held on 24 September 1999, the appellant being represented by his legal practitioner. The appellant was found “guilty” of the offences charged, but no penalty was imposed as the committee was split on the question of the appropriate sentence. It was therefore decided by the respondent to refer the matter to the labour relations officer for determination.

Meanwhile, on 17 November 1999, and before the issue was resolved by the labour relations officer, fresh misconduct charges were brought against the appellant. These were serious charges, as will be seen from the letter to the appellant dated 17 November 1999:

After carrying out investigations, you are hereby charged under Part II section 6, subsection 32 (Bribery and Corruption), subsection 33 (Extortion and Usury), subsection 8 (Conflict of Interest), subsection 12 (Making Threats), subsection 20 (Inconsistent Conduct or Omissions) and subsection 23 (Falsifying Records) of the NSSA Code of Conduct. The above charges arise from the following –

a) You induced an employer, Mupfumi Commuters, into selling you a minibus which is an illegal act for the purpose of personal gain. This was done under the guise of the Authority business, putting the employer in a disadvantaged position when negotiating and therefore the charge under section 6, subsection 32.

b) You committed an offence under section 6, subsection 33, when you demanded a bribe of $50 000.00 from the employer before you altered his contributions assessment from $2 271 560.83 to $49 976.26.

c) Your business undertaking is at (sic) direct conflict with the interests of the Authority as your duties require you to enforce and/or police contributions payments to NSSA, and further to that you are running an unregistered business and therefore the charge under section 6, subsection(s) 8 and 20.

d) You used threats to induce the employer into selling you a minibus. This is an offence in terms of section 6, subsection 12 (Making Threats).

e) You falsified the employer’s contributions assessment in order to compensate for a bribe and therefore the charge under section 6, subsection 23 (Falsifying Records).

f) You visited the employer in October 1999 purporting that you were representing the Authority, when you are on suspension pending the determination of another misconduct charge which is … inconsistent conduct in terms of section 6, subsection 20.

g) Your conduct when you dealt with the employer is discreditable and thus throwing the Authority’s image into disrepute.”

A hearing date was set initially for 24 November 1999 and the appellant’s legal practitioner was so advised. There followed communications between the appellant's legal practitioner and the respondent, the purpose of which was to enable them to arrive at a date which was convenient to the appellant’s legal practitioner (“Zviuya”) who was stated to be attending a Law Society Summer School from 25-28 November 1999. As a compromise, the matter was set down for 29 November 1999, as advised by the respondent in its letter dated 25 November. Further argument as to the convenience of that date to Zviuya ensued. Thereafter the parties differ as to what occurred. Zviuya said that it was agreed between him and Mr Gombiro (“Gombiro”) for the respondent that Gombiro would telephone him when he returned to his office on 29 November to arrange a trial date. Mr Gombiro, on the other hand, states that there was no such agreement and that he made it quite clear to Zviuya that the hearing would take place on 29 November as scheduled, whether or not the appellant or his legal practitioner was present. He said that this was confirmed in his letter dated 26 November, which is Annexure P to the papers. The letter was received at the offices of the appellant’s legal practitioners on 26 November at 4.30 pm. It contains on the face of it an endorsement that it was “noted” and a memo “to JZ, this is urgent”. It read as follows:

“I refer to our telephone conversation on 25 November 1999 when you advised that 29 November 1999 is not a suitable date for you as you will be tired after attending your Summer School at Montclair Hotel from 25-28 November 1999.

Please be advised that the Authority rescheduled this hearing twice in order to accommodate you. Therefore should you fail to attend the hearing scheduled for 29 November 1999 at 9.30 am the Authority will proceed with the case in absentia.”

It seems unlikely that Zviuya was not advised of the letter by his office.

On 29 November 1999 the disciplinary committee, properly constituted in terms of the Code of Conduct governing the parties, presented itself for the hearing. Neither the appellant nor his legal practitioner was present. The chairperson commenced the proceedings. At this stage the three workers’ representatives on the disciplinary committee expressed their unwillingness to proceed with the matter in the absence of the appellant and walked out. The remaining members of the committee were of the view that the hearing should proceed in the absence of the appellant. They therefore proceeded with the hearing while the worker representatives walked out. The three members of the disciplinary committee concluded that the appellant was guilty of the acts of misconduct charged and dismissed him.

According to Zviuya, he did not attend at his offices until 1^st December, when he saw Annexure “P” and, on enquiring, was advised that the hearing had taken place on the 29^th November.

The appellant filed an application in the High Court on 26 January 2000 for a declaration that both decisions were null and void and for reinstatement to his post with full benefits. The learned judge dismissed the application on the grounds that the appellant ought to have exhausted his domestic remedies as provided in the Code of Conduct governing the parties (“the Code”). He granted leave to the appellant to appeal out of time to the General Manager in terms of the Code. It is against the judgment of the High Court that the appellant now appeals.

The decision by the learned judge not to exercise his review jurisdiction in respect of both matters was criticised by the appellant. Mr Biti, for the appellant, submitted that the court erred in holding itself as having a discretion as to whether to exercise its jurisdiction in this matter. Further, he argued, even if the court did have a discretion, it was wrongly exercised in both cases. In his grounds of appeal, the appellant urged this Court to find, in respect of the first matter, that the court a quo erred in not finding as a question of law that the reference to the labour relations officer in terms of s 101(6) of the Labour Relations Act [Chapter 28:01] was unlawful; and, secondly, that the question of the unlawful reference to the Ministry of Labour was an issue that could be proceeded with internally in terms of the Code.

In respect of the second decision he urged the Court to find that the court a quo erred, firstly, in holding there were no special circumstances justifying the exercise of its review jurisdiction in that matter; and, secondly, in treating the rule obliging exhaustion of domestic rules as a substantive rule of law and not merely as an adjectival tool in administrative law. I deal with these submissions in the ensuing paragraphs.

THE DISCRETION OF THE COURT

That the High Court does have a discretion as to whether it will exercise its jurisdiction to entertain an application of this nature is beyond question. See Chikonye & Anor v Peterhouse 1999 (2) ZLR 329 at 330 D-E, where it was said:

"… it has not proved easy over the years to formulate a definition of the circumstances in which a litigant in the labour relations system may by-pass that system by taking the case to the High Court, whether by way of review or, as in this case, by way of seeking a declaratory order.

It is accepted that the High Court has a discretion, to be exercised, of course, judicially. There is no statutory ouster of the court’s jurisdiction pending exhaustion of domestic remedies. This has been noted in such cases as Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H) at 95D; Musundu v Chairperson of Cresta Lodge Disciplinary & Grievance Committee HH-115-94; Zikiti v United Bottlers 1998 (1) ZLR 389 (H) at 392F; Mudakureva v Grain Marketing Board S-15-98 at p 3; Nhidza v Unifreight Ltd S-27-99; and Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S). In the Girjac case, it was said that a litigant should exhaust his domestic remedies unless there are good reasons for approaching the court. Also in this Court, it has been said that ‘domestic tribunals’ should not be by-passed without good reason; one such reason would be lack of jurisdiction on the part of the tribunal – see Munyira v Secretary for Education & Public Service Commission S-214-98 (not reported), which relied for the proposition on Baxter Administrative Law pp 720-721". (emphasis added).

It remains to be considered whether the learned judge exercised his discretion wrongly, as urged by the appellant. A reading of the judgment discloses no support for Mr Biti’s submission. It was contended that the respondent, in dismissing the appellant, had not followed the provisions of the Code and that accordingly the proceedings resulting in the dismissal of the appellant were a nullity. In this regard, it is necessary to examine what actually happened on that day. The disciplinary committee which met to determine the matter was properly constituted. The appellant was not present. A debate took place as to whether or not the hearing should take place in his absence. There was a difference of opinion. What happened next was an occurrence which was not provided for in the Code. Three members of the committee, the workers representatives, walked out. They ought not to have done so. Their presence on the disciplinary committee was "to ensure that the interests of the accused employee are fairly represented and safeguarded" (see clause 11 of the Code). They have no power to veto or boycott proceedings of the committee. If they had any objections, these were to be made at the hearing and recorded. The walk-out by the workers’ representatives was calculated to frustrate the disciplinary proceedings. They have no power to do so. In view of the silence of the Code on the procedure to be adopted in such an eventuality, the remaining members continued with the hearing and reached a conclusion. The proceedings cannot in the circumstances be said to be a nullity. This is not a case where the respondent acted in total disregard of the provisions of the Code of Conduct, as was the case in Mugwebie v Seed Co Ltd & Anor 2000 (1) ZLR 93 (S). Rather, in this case, the respondent did all that was necessary on its part to comply with the requirements of the Code.

The learned judge carefully considered whether or not he should exercise his jurisdiction. He was alive to the principles enunciated in the Girjac case supra that a litigant should exhaust his domestic remedies unless there are good reasons for approaching the court. (See also Chikonye v Peterhouse supra). After considering the actions of the disciplinary committee in the light of the complaints made by the appellant he said:

“I don’t regard the failures I have indicated as establishing special reasons for this court exercising its review jurisdiction at this stage. As I have said, in my view what is generally required is that the hearings referred to in the Codes of Conduct or Labour Relations Act should take place with the appeals within those contexts unless there are special circumstances as described by the Supreme Court and I do not consider that special circumstances exist. It seems to me that my approach in this matter is squarely in line with the approach by the Supreme Court in the case referred to Girjac v Mudzingwa Services 1999 (1) ZLR 243 and the facts certainly of the second allegation seem to me to come within the general sort of approach as laid down by the learned CHIEF JUSTICE in that matter.

My view overall is that the applicant has not exhausted domestic remedies, those domestic remedies are available. I do not consider that the sort of relief that the applicant seeks would not be available through those appeal hearings."

He concluded that the appeals procedure provided in the Code - an appeal to the general manager, then the board and, finally, to the then Labour Relations Tribunal - was adequate to redress the grievances which the appellant complained of and that no special circumstances had been shown which would justify the exercise of his review jurisdiction in either of the matters.

I agree with the learned judge that the system provided for rehearing where the appellant's defence, if any, could be aired. I use the words “if any” advisedly because the appellant has not indicated what his defence is to the serious allegations made against him. The learned judge exercised his discretion judicially and did not misdirect himself. It cannot be said that no reasonable court would have arrived at the conclusion that he did and, whatever the views of this Court on the matter, we cannot substitute our discretion for that of the learned judge. See Barros v Chimphonda 1999 (1) ZLR 58 (S).

WHETHER THE REFERENCE OF THE DISPUTE TO THE LABOUR RELATIONS OFFICER WAS UNLAWFUL

Subsections (5) and (6) of section 101 of the Labour Relations Act [Chapter 28:01] (“the Act”) provide as follows:

“(5) Notwithstanding this Part, but subject to subsection (6), no labour relations officer or senior labour relations officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under a 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 relations officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

Subsection (5) precludes the labour relations officer from intervening in any matter which is, or is liable to be, subject to proceedings under a Code save where the matter has been referred to it by either party in terms of subs (6).

It is common cause that the first hearing was conducted in terms of the Code, and a conclusion reached as to the appellant’s guilt within thirty days. However, because the committee was unable to agree on the appropriate sentence to be imposed, the matter was referred to the labour relations officer for determination. This referral was within the respondent’s, rights as can be seen from subs (6) supra. Although the conclusion as to his guilt was reached within thirty days, it cannot be gainsaid that the matter was not concluded in thirty days.

It was contended on behalf of the appellant that the conclusion as to the guilt of the appellant was a determination in terms of subs (6) and that accordingly the labour relations officer had no jurisdiction to entertain the matter but, to my mind, the common sense view is that without the sentence or penalty the matter was not finalised by the disciplinary committee. Accordingly there was, in my view, no determination in terms of subs (6) and the reference to the labour relations officer was lawful.

This finding makes it unnecessary to deal with the second ground of appeal in relation to the first decision.

THE CORRECTNESS OF THE DECISION TO DECLINE JURISDICTION

The first decision has already been found to have been correctly referred to the labour relations officer. In the premises, the refusal by the court to review the matter in respect of which a decision was pending before another tribunal was proper.

As to the second matter, the criteria for determining when it is appropriate for the High Court to exercise its review jurisdiction in a case where domestic remedies are prescribed in a Code of Conduct binding upon an applicant for review were enunciated in Girjac supra, and the extract from the judgment of the High Court which is quoted above shows that the learned judge was alive to these criteria. The discretion of the learned judge having been correctly and judicially exercised, it follows that the decision of the learned judge to decline jurisdiction cannot in the circumstances be impugned.

Accordingly, I have come to the conclusion that the appeal cannot succeed and it is therefore dismissed with costs.

CHIDYAUSIKU CJ: I agree.

CHEDA JA: I agree.

Bere Brothers, appellant's legal practitioners

Atherstone & Cook, respondent's legal practitioners