Disciplinary proceedings https://old.zimlii.org/taxonomy/term/10406/all en ZUPCO v Mashinge (SC 21-21) [2021] ZWSC 21 (26 March 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/21 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (20)</strong></p> <p> </p> <p>                                                                                                               </p> <p><strong>ZIMBABWE     UNITED     PASSENGER     COMPANY</strong></p> <p><strong>V</strong></p> <p><strong>BEAULAR     MASHINGE</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAKARAU JA, GOWORA JA &amp; BERE JA</strong></p> <p><strong>HARARE: SEPTEMBER 25, 2018 &amp; MARCH 26 2021</strong></p> <p> </p> <p> </p> <p><em>P. Ngwenya</em>, for appellant</p> <p>Respondent in person</p> <p> </p> <p><strong>MAKARAU JA</strong></p> <ol> <li>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. </li> </ol> <p> </p> <ol> <li>This is an appeal, with leave, against that order.</li> </ol> <p> </p> <p><strong>BACKGROUND</strong></p> <ol> <li>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.</li> </ol> <p> </p> <ol> <li>On the sole basis that the referral of the matter to the Division Operations Manager was a nullity, the respondent approached the court <em>a quo</em> on review seeking to have the decision dismissing her set aside. At the hearing of the matter <em>a quo</em>, 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.</li> </ol> <p> </p> <p><strong>THE APPEAL</strong></p> <ol> <li>In the appeal, the appellant raised one ground of appeal as follows:</li> </ol> <p>“The learned judge in the court <em>a quo</em> erred at law in ordering reinstatement of the respondent or alternatively payment of damages <em>in lieu</em> of reinstatement, in an application for review where only a procedural irregularity was determined.”</p> <p> </p> <ol> <li>Quite clearly and correctly so, the appellant did not challenge the correctness of the court <em>a quo’s</em> 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.</li> </ol> <p> </p> <p><strong>THE ISSUE</strong></p> <ol> <li>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 <em>a quo</em> 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.</li> </ol> <p> </p> <ol> <li>Whilst the appellant argued both in its heads of argument and orally before the court that the only relief the court <em>a quo</em> could grant in the matter was a remittal of the matter to the appellant, the issue of the appropriate remedy <em>a quo</em> does not arise in this appeal. This is so because the issue was not raised in the sole ground of appeal that I have reproduced above. Whilst it may be regarded as a point of law that can be raised at any time, no procedural foundation was laid for the raising of the point.</li> </ol> <p> </p> <ol> <li>In any event and more importantly in my view, the power to remit a matter to a lower court or tribunal is a common law power inherent in the High Court and in the court <em>a quo</em> by virtue of s 89 of the Labour Act [<em>Chapter 28.01</em>], used in its discretion and in circumstances where it is not possible or desirable for the court to substitute its own discretion in the matter. There has been no proper attack on the exercise of the court’s discretion in this regard. I will therefore disregard this issue as it has not been properly raised.</li> </ol> <p> </p> <p><strong>THE LAW</strong></p> <ol> <li>It is common cause that the matter was placed before the court <em>a quo</em> by way of an application for review. It is further common cause that reviews before the Labour Court are governed by s 89 of the Labour Court [<em>Chapter 28.01</em>], 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.</li> <li>The powers of the High Court on review are based on the common law and on the provisions of the High Court Act [<em>Chapter 7.06</em>].</li> </ol> <p> </p> <ol> <li>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 s 89 of the Labour Court, the Labour Court similarly has power to set aside or correct the decision or proceedings reviewed.</li> </ol> <p> </p> <ol> <li>As discussed above, the only issue that arose in this appeal is whether the court <em>a quo</em> 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 <em>status quo ante</em> of the parties is restored. It mainly relied on the cases of  <em>Standard Chartered Bank of Zimbabwe Ltd v Chikomwe and 211 Others</em> SC 77/2000, and <em>Air Zimbabwe (Private) Limited v Chiku Mnensa and Another</em> SC 89/04, both decisions of this Court.</li> </ol> <p> </p> <ol> <li>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.</li> <li>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 <em>ante</em>.</li> </ol> <p> </p> <ol> <li>The broader and more readily acceptable position in my view is that the <em>status</em> <em>quo ante</em> 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.  </li> </ol> <p> </p> <ol> <li>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.</li> </ol> <p> </p> <ol> <li>The position that I come up with above was obliquely endorsed by McNally JA in <em>Air Zimbabwe Corporation v Mlambo 19</em>97 (1) ZLR 220 (S) where, at page 223 H he accepted as correct the submission by counsel for the respondent to the effect that:</li> </ol> <p>“…as soon as there is a finding that the disciplinary findings were a nullity, <strong>it must follow that the employee is reinstated.</strong>After all, the basis for his dismissal has been set aside. So he has not been properly dismissed.” (The emphasis is mine).</p> <p> </p> <p> </p> <ol> <li>The conclusion that I reach above is similar to the conclusion reached by this Court in the case of <em>Minerals Marketing Corporation v Mazimavi</em> 1995 (2) ZLR 353 (S) where the court upheld the decision of the tribunal <em>a quo</em> to reinstate the employee after finding that a gross irregularity had occurred during the disciplinary proceedings.</li> </ol> <p> </p> <ol> <li>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.</li> </ol> <p> </p> <ol> <li>I thus reject as stating the correct position at law the argument by the appellant that the court <em>a quo</em> could only confine itself to confirming or nullifying the disciplinary proceedings of the appellant without granting substantive relief in the matter.</li> </ol> <p> </p> <p><strong>ANALYSIS </strong></p> <ol> <li>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 <em>a quo</em> effectively restored the status of the respondent as an employee of the appellant, <em>albeit</em> one who had charges pending against her and had appeared before a disciplinary committee.  </li> </ol> <p> </p> <ol> <li>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.</li> </ol> <p> </p> <ol> <li>I note in passing that the issue that the employees in the <em>Air Zimbabwe v Mensa</em> case 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 <em>casu</em>. It was not argued <em>a quo</em> that the respondent was on suspension without salary before she was unlawfully dismissed. It was similarly not so argued before us.</li> </ol> <p> </p> <ol> <li>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 <em>a quo</em> cannot be faulted.</li> </ol> <p> </p> <ol> <li>In the result, I find no merit in the appeal which I must dismiss.</li> </ol> <p> </p> <ol> <li>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.</li> </ol> <p> </p> <ol> <li>Accordingly, I make the following order:</li> </ol> <p>The appeal is dismissed with costs.</p> <p> </p> <p><strong>GOWORA JA           :                         </strong>I agree</p> <p> </p> <p> </p> <p>                        <strong>BERE JA                   :                       (NO LONGER IN OFFICE)</strong></p> <p> </p> <p> </p> <p><em>Chinawa Law Chambers</em>, appellant’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/21/2021-zwsc-21.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33857">2021-zwsc-21.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/labour-court-see-also-employment-labour-relations-tribunal">Labour Court See also EMPLOYMENT (Labour Relations Tribunal).</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/h">H</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/high-court">HIGH COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/powers-high-court">Powers (HIGH COURT)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Tue, 20 Apr 2021 10:47:45 +0000 Sandra 9994 at https://old.zimlii.org Commander Zimbabwe National Army & 2 Ors v Chidembo & Anor (SC 117-20, Civil Appeal No. SC 195/18) [2020] ZWSC 117 (24 September 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/117 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>   </p> <p><strong>DISTRIBUTABLE</strong><strong>    (108)</strong></p> <p> </p> <ol> <li> </li> <li><strong>COMMANDER ZIMBABWE DEFENCE FORCES</strong></li> <li><strong>MINISTER OF DEFENCE</strong></li> </ol> <p><strong>v</strong></p> <ol> <li> </li> </ol> <p>                                                                                                                       </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE </strong></p> <p><strong>MAKARAU JA, GUVAVA JA &amp; MAVANGIRA JA </strong></p> <p><strong>HARARE: JUNE 04, 2019 &amp; SEPTEMBER 24, 2020</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>M. Muradzikwa</em>, for the appellants</p> <p><em>N. Mugiya</em>, for the respondents                                                              </p> <p> </p> <p> </p> <p><strong>GUVAVA JA:  </strong>This is an appeal against the judgment of the High Court sitting at Harare under case number HC 6431/14 and judgment number HH 405/17 handed down on 28 June 2017. The respondents had filed an application for a review of the first appellant’s decision in proceedings which led to the dismissal of the first and second respondents. The court <em>a quo</em> set aside the dismissal of the second respondent and ordered that he be reinstated to his former position as Lieutenant at the School of Signals.</p> <p> </p> <p>The facts of this matter maybe summarised as follows. The respondents were employed by the Zimbabwe National Army. The first respondent was initially a member serving on a short term service contract commencing from 1 March 2010 and expiring on 28 February 2013. The first respondent’s term of service was later extended to medium service engagement, seven months before the completion of her short term service. On 28 February 2011, the Army Headquarters published an amendment of the conditions of service for members. The new conditions stipulated that any member who married or fell pregnant during their initial engagement would not have their contract extended at the expiry of the initial engagement.</p> <p> </p> <p>The first and second respondents had solemnised their marriage in terms of the Marriages Act [<em>Chapter 5:11</em>] on 11 February 2011 prior to the amendment. At the time when the marriage was solemnised the first respondent was a Lance Corporal in 4 Ordinance Coy and the second respondent was a Lieutenant at the School of Signals. Around October 2012, the first respondent fell pregnant and she was dismissed from service in terms of s 16 of SI 172 of the 1989 Defence Regular Force (Non Commissioned Members Regulations) (“the Regulations”) in March 2013.</p> <p> </p> <p>The second respondent was subsequently discharged from service on 14 July 2014 in terms of s 18(1) of the Defence Act [<em>Chapter 11:02</em>] (“the Defence Act”) as read with s 1 (b) of the Defence (Regular Forces) (Officers) Regulations, 1988. He was dismissed after a Board of suitability investigated and found him guilty of making the first respondent pregnant contrary to the above Regulations.</p> <p> </p> <p>Both the first and second respondents were aggrieved by the decision of the appellants and made an application for review before the High Court. They were of the view that when the amendment was introduced it did not apply to the first respondent as they submitted that she was no longer employed in the initial engagement. At the commencement of the hearing the appellants raised two points <em>in limine</em>. It was submitted in respect of the first point, that the application for review in respect of the first respondent was not properly before the court as it had been filed out of time. It was apparent that the first respondent having been dismissed in March 2013 and the application filed on 6 March 2018, the application was indeed out of time. Accordingly, in respect to the first respondent the court found that she was improperly before the court as her application for review was filed outside the eighth week period in contravention of Order 33 r 259 of the High Court Rules, 1979. No application for condonation had been made by the first respondent. The first respondent therefore whilst accepting that she was out of time, indicated that this issue was only raised at the hearing and she was thus prejudiced.  The first respondent’s counsel thus applied for leave to file an application for condonation of failure to comply with the rules and a postponement of the matter. The application to allow the first respondent to apply for condonation was granted by consent of the parties. The court <em>a quo</em> thereafter directed that the applications of first and second respondent be separated. This in my view is where the court made the first error.</p> <p> </p> <p>The court <em>a quo</em> postponed the first respondent’s application and proceeded to deal with that of the second respondent.</p> <p> </p> <p>With regards to the second respondent the appellants submitted as their second point <em>in limine</em> that he respondent was not properly before the court as he had not exhausted the internal remedies in terms of the Defence Act. It was submitted that in terms of the Defence Act matters of suitability of Defence Force members should be appealed to or reviewed by the Defence Forces Service Commission and that the decision of the Commission is final. It was therefore submitted that as the second respondent had not exhausted the domestic remedies he was non suited.</p> <p> </p> <p>The court <em>a quo</em> was not persuaded by this argument and dismissed the point <em>in limine</em> and proceeded to deal with the case on the merits. On the merits of the matter, the application was based on the allegation that the respondent had not been given notice of his discharge, had not been given reasons for the discharge, had not been given an opportunity to make representations to defend himself and finally was convicted on a law that was applied retrospectively to the first respondent as it was not in operation when they got married.</p> <p> </p> <p>The second respondent averred that as the alteration of the first respondent’s terms of service from short service to medium service had been granted, she was no longer serving her initial engagement and could not therefore be bound by the conditions imposed on members serving their initial engagement. He also submitted that the amendment which made it an offence for the first and second respondent to get married and for the first respondent to fall pregnant only came into operation after they were already married and should therefore not have applied to them.</p> <p> </p> <p>The appellants opposed the application on the basis that the extension of the first respondent’s term of service from short term service to medium term service had been an error and that she was still in her initial engagement when she married second respondent and fell pregnant. The amendment thus applied to the first respondent and by extension to the second respondent. The appellants’ also argued that the amendment had not been applied retrospectively.</p> <p> </p> <p>The court <em>a quo</em> analysed the Defence Act and the Regulations and found that the first respondent ceased to be a member serving her initial engagement on the date that she was authorised to alter her class of engagement.  In arriving at this conclusion, the court <em>a quo </em>had regard to s 8 (2) of the Regulations which provides as follows:</p> <p>“Where a member’s class of engagement has been changed in terms of sub section (1), the member concerned shall be deemed to have been engaged on the longer period of engagement from the date of his attestation”</p> <p> </p> <p> </p> <p> </p> <p>The court held that the discharge of the first respondent and consequently that of the second respondent was irregular as the first respondent was no longer bound by the conditions of those serving in their initial engagement. The court <em>a quo</em> further found that the second respondent had satisfied the grounds of review and ordered that the proceedings that led to the cancellation of his commission and subsequent discharge from the first appellant be set aside. It further ordered that the second respondent be reinstated to his former position and awarded costs in favour of the second respondent. This, in my view, is where the court <em>a quo</em> made the second fundamental error.</p> <p> </p> <p>Aggrieved by the decision of the court <em>a quo,</em> the appellants noted an appeal to this Court.</p> <p> </p> <p>It seems to me that the issue that arises in this case is whether the court <em>a quo</em> was correct in proceeding to determine the application for review in favour of the second respondent in the absence of the first respondent. From the facts of the matter the case of the second respondent is intrinsically linked to that of the first respondent. One could not determine the issues relating to the second respondent without determining the issues of the first respondent. However, as the application by the first respondent had been separated from that of the second respondent her evidence was thus no longer before the court.</p> <p> </p> <p>The court <em>a quo</em> thus clearly erred and misdirected itself when it separated the review applications of the first and second respondents.</p> <p> </p> <p>The court <em>a quo,</em> made findings of irregularity in relation to the case of first respondent in circumstances where the first respondent was not before the court. I have no doubt that the court <em>a quo</em> misdirected itself in this respect.</p> <p> </p> <p>The court <em>a quo</em> in making its determination made the following finding.</p> <p>“On the 20th of July 2012 the 1st respondent had been granted authority to ‘alter their class of engagement from short service engagement to medium service in terms of s 8 of SI 172 of 1989.’ At that time the first applicant had not fallen pregnant. She only fell pregnant between September and October 2012. It is this pregnancy which resulted in her being dismissed from the ZNA and consequently the second respondent being charged with impregnating her (a member who was still serving her initial engagement.)…… For the avoidance of doubt it was improper to charge the second applicant’s wife and consequently the second applicant for her falling pregnant”</p> <p> </p> <p> </p> <p>From the above it is apparent that the court <em>a quo</em> in arriving at its decision made factual findings in respect to the first respondent. The court found that the restriction on falling pregnant was only imposed on members who were still serving their initial engagements. It thereafter assessed the evidence and found that the first respondent was no longer serving her initial engagement. The court could not come to this conclusion as the first respondent’s evidence was no longer before the court. It was imperative from the facts of this case for the court to have heard both applications together as the second respondent’s act of misconduct arose from the finding of guilt of the first respondent.</p> <p> </p> <p>The court <em>a quo</em> having found that first respondent was not properly before it ought to have postponed both matters and awaited the application for condonation to be determined first before proceeding to deal with the review application by the second respondent.</p> <p> </p> <p>It is trite that where such irregularities occur this Court may <em>meru moto</em> invoke its review powers in terms of s 25 of the Supreme Court Act [<em>Chapter 7:13</em>] and set aside the decision of the court <em>a quo </em>as the grounds of appeal did not raise the above issues. In my view the irregularities highlighted above fall under this category.</p> <p> </p> <p>With regards to costs, it is my view that as the appellants had not raised this issue and it was only raised by the court, no award of costs should be made in their favour.</p> <p> </p> <p>Accordingly, I make the following order:</p> <ol> <li>The appeal succeeds with no order as to costs.</li> <li>The judgment of the court <em>a quo</em> be and is hereby set aside.</li> <li>The matter is remitted to the court <em>a quo</em> for a hearing <em>de novo</em>, before a different Judge.</li> </ol> <p> </p> <p><strong>MAKARAU JA:</strong>                    I agree  </p> <p> </p> <p><strong>MAVANGIRA JA:</strong>               I agree </p> <p> </p> <p><em>Civil Division of the Attorney General’s Office</em>, appellants’ legal practitioners</p> <p> </p> <p><em>Mugiya and Macharaga Law Chambers</em>, respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/117/2020-zwsc-117.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33265">2020-zwsc-117.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/117/2020-zwsc-117.pdf" type="application/pdf; length=344603">2020-zwsc-117.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-0">Dismissal</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1964/81">Marriage Act [Chapter 5:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/28">Supreme Court Act [Chapter 7:13]</a></div></div></div> Wed, 06 Jan 2021 14:51:46 +0000 Sandra 9963 at https://old.zimlii.org Nhari v Zimbabwe Allied Banking Group Limited (SC 6-20, Civil Appeal SC 192/11) [2020] ZWSC 6 (02 February 2017); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2017/6 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2017/6/2020-zwsc-6.pdf" type="application/pdf; length=234720">2020-zwsc-6.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/code-conduct-effect-employees">code of conduct in effect for employees</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/node/6899">Mupandasekwa v Green Motor Services (Pvt) Ltd. (Civil Appeal No. SC 298/11) [2015] ZWSC 30 (25 June 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2005/101">Standard Chartered Bank Zimbabwe Ltd. v Chapuka (361/03) ((361/03)) [2005] ZWSC 101 (26 January 2005);</a></div></div></div> Wed, 17 Jun 2020 13:41:42 +0000 Sandra 9680 at https://old.zimlii.org ZB Bank Limited v Marimo (SC 21-20, Civil Appeal No. SC 976/17) [2020] ZWSC 21 (13 February 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/21 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/21/2020-zwsc-21.pdf" type="application/pdf; length=304851">2020-zwsc-21.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/confidential-information">Confidential information</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/code-conduct-effect-employees">code of conduct in effect for employees</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2016/56">Wala v Freda Rebecca Mine (SC 56/2016 CIVIL APPEAL NO. SC 699/15) [2016] ZWSC 56 (23 May 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Tue, 10 Mar 2020 08:12:21 +0000 Sandra 9538 at https://old.zimlii.org Makumire v Minister, Public Service, Labour and Social Welfare & Another (CCZ 01/20, Const. Application No. CCZ 21/19) [2020] ZWCC 01 (03 July 2019); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2019/1-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. CCZ 01/20</p> <p>Const. Application No. CCZ 21/19</p> <p> </p> <p><strong>REPORTABLE (1)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>WILLMORE MAKUMIRE</strong></p> <p><strong>v</strong></p> <ol> <li><strong>MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE</strong></li> <li><strong>ATTORNEY-GENERAL OF ZIMBABWE</strong></li> </ol> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, JULY 3, 2019</strong></p> <p> </p> <p>The applicant in person</p> <p><em>Ms O Zvedi</em>, for the respondents</p> <p> </p> <p>            <strong>MALABA CJ:  </strong>After hearing submissions by counsel in the application, the Court made the following order by consent:</p> <p>“<strong>IT IS ORDERED BY CONSENT THAT</strong>:</p> <p>1.         The order of the court <em>a quo</em> given in terms of section 175(1) of the Constitution declaring section 93(5a) of the Labour Act [<em>Chapter 28:01</em>] to be in conflict with sections 56(1), 68(1) and 69(3) of the Constitution is not confirmed in terms of section 167(3) of the Constitution.</p> <ol> <li> </li> </ol> <p> </p> <p><strong>INTRODUCTION</strong></p> <p>Notwithstanding the fact that the matter was disposed of on the basis of an order by consent, a written judgment was necessary to clarify the law on the issue behind the interpretation of s 93(5a) of the Labour Act [<em>Chapter 28:01</em>] (“the Act”).</p> <p>The constitutional matter that was brought before the Constitutional Court (“the Court”) was whether s 93(5a) of the Act is in conflict with ss 56(1), 68(1) and 69(3) of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 (“the Constitution”). The matter came to the Court by way of the procedure laid down in s 175(1) of the Constitution for confirmation of orders concerning the constitutional invalidity of any law or any conduct of the President or Parliament made by another court.</p> <p>The High Court (“the court <em>a quo</em>”) made an order declaring s 93(5a) of the Act to be in conflict with ss 56(1), 68(1) and 69(3) of the Constitution and therefore invalid. Section 56(1) of the Constitution entrenches the right of every person to equality and to equal protection and benefit of the law. Section 68(1) of the Constitution protects the right of every person to administrative justice. Section 69(3) of the Constitution safeguards the fundamental right of every person to access the courts, or to some other tribunal or forum established by law for the resolution of any dispute.</p> <p>In terms of s 175(1) of the Constitution, any declaration of invalidity of any law or any conduct of the President or Parliament made by a competent court has no force until it has been confirmed by the Court. This section is complemented by s 167(3) of the Constitution, which provides that the Court makes the final decision on whether an Act of Parliament is constitutional and must confirm an order of invalidity made by another court. The sections serve distinct yet harmonious purposes, with the emphasis being placed on the express oversight of the Court over orders of constitutional invalidity of legislation made by other courts.</p> <p>The order of constitutional invalidity of s 93(5a) of the Act made by the court <em>a quo</em> had to be reviewed by the Court. The Constitution entrusts the Court with the duty of supervising the exercise by other courts of the power to declare laws inconsistent with it.</p> <p>The Court is also not bound by the order of constitutional invalidity made by the court <em>a quo</em>. In <em>S</em> v <em>Chokuramba</em> CCZ 10/19, the Court held at p 6 of the cyclostyled judgment as follows:</p> <p>”The Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is inconsistent with the Constitution. It must conduct a thorough investigation of the constitutional status of the law or conduct of the President or Parliament which is the subject-matter of the order of constitutional invalidity. The Court must do so, irrespective of the finding of constitutional invalidity by the lower court and the attitude of the parties.</p> <p>Thorough investigation is required, even where the proceedings are not opposed or even if there is an outright concession that the law or the conduct of the President or Parliament which is under attack is invalid. The reason for this strict requirement is that invalidity of the law or the conduct of the President or Parliament is a legal consequence of a finding of inconsistency between the law or the conduct in question and the Constitution. Inconsistency is a matter of fact, on the finding of which the court <em>a quo</em> and the Court may differ.” (the underlining is for emphasis)</p> <p> </p> <p>The Court still retains the power to decline an order of confirmation of constitutional invalidity, particularly where it is convinced that the order will have no practical effect or where the party challenging it has failed to show that he or she or it is injured by the operation of the impugned law.</p> <p><strong>THE BACKGROUND FACTS AND THE PROVISIONS OF THE LEGISLATION, THE CONSTITUTIONALITY OF WHICH IS IMPUGNED</strong></p> <p> </p> <p>The order of constitutional invalidity of s 93(5a) of the Act was made by the High Court in the following circumstances.</p> <p>On 10 February 2015 the applicant was suspended from work in terms of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I. 15 of 2006) (“the Code of Conduct”), on allegations of theft by conversion of US$100 meant to be paid to his employer.  A disciplinary hearing was conducted in terms of s 6(4) of the Code of Conduct. The applicant was found guilty of the acts of misconduct with which he was charged. He was dismissed from employment with effect from the date of suspension. He was advised that he had a right in terms of s 8 of the Code of Conduct to appeal against the decision to dismiss him.</p> <p>On 12 March 2015 the applicant referred the matter to a labour officer in terms of s 8(6) of the Code of Conduct. The section provides a remedy to a person aggrieved by a decision or manner in which an appeal is handled by an employer or the appeals officer or the Appeals Committee, as the case may be, to refer the case to a labour officer. Section 8(7) of the Code of Conduct provides that the labour officer to whom a matter is referred in terms of subs (6) of s 8 shall process the case as provided for under s 93(1) of the Act, which section deals with the conciliation of disputes.</p> <p>The labour officer did not dispose of the matter within the 30-day period prescribed under s 93(3) of the Act, leading to the applicant approaching the Labour Court in terms of s 93(7) of the Act. On 24 September 2015 the Labour Court made an order referring the matter back to the labour officer and directing him to appoint an arbitrator. Compulsory arbitration was no longer available as a remedy for the resolution of disputes of right or unfair labour practices which are disputes of right, following the enactment of the Labour Amendment Act No. 5 of 2015.</p> <p>The matter was referred back to the Labour Court for directions on how to proceed in light of the amendment to the provisions of s 93 of the Act. On 14 March 2016 the Labour Court directed that the matter be heard by the labour officer in terms of s 93(5)(c) of the Act. Section 93(5)(c) of the Act empowers a labour officer, who has issued a certificate of no settlement following a conciliation process relating to a dispute of right or unfair labour practice which is a dispute of right, to make a ruling relating to the matter specified thereunder.</p> <p>On 10 May 2016 the labour officer declined jurisdiction over the matter on the basis that it was improperly before him. He held that he had no jurisdiction to hear the matter since it was referred to him from the Disciplinary Authority and not from the appeals officer or the Appeals Committee. In his ruling the labour officer noted that the applicant should have proceeded by way of an appeal to the Labour Court in terms of s 92D of the Act instead of pursuing remedies provided for in s 8 of the Code of Conduct.</p> <p>On 20 September 2016 the applicant made an application for condonation of late noting of an appeal to the Labour Court. The application was dismissed for failure to exhaust local remedies. The dismissal caused the applicant to file an appeal against the decision of the Disciplinary Authority to the appeals officer/Appeals Committee. He also sought condonation for the late noting of the appeal.</p> <p>Without referring the matter to the appeals officer or the Appeals Committee, the General Secretary of the applicant’s former employer, acting on legal advice, sent a letter to the applicant advising him that his matter could not be heard as there was no provision in the Code of Conduct empowering the employer to hear an application for condonation. The applicant appealed to the labour officer, who upheld the decision of the employer.</p> <p>When the matter went for confirmation before the Labour Court, it refused to confirm the labour officer’s ruling. It instead referred the matter to the employer with a direction to set up an appeal structure to hear the matter, failing which the applicant would be deemed to have been reinstated without loss of salary.</p> <p>Dissatisfied with the decision of the Labour Court, the employer lodged an appeal to the Supreme Court. It contended that in terms of s 93(5a) of the Act, the labour officer can only approach the Labour Court for confirmation of his or her ruling when he or she has ruled against the employer. The contention was that the Labour Court had entertained a matter over which it had no jurisdiction. The applicant conceded the point. The matter was struck off the roll on the ground that the Labour Court had no jurisdiction over the matter.</p> <p>The applicant filed an application in the court <em>a quo</em> alleging that s 93(5a) of the Act violated his right to equal protection of the law, enshrined in s 56(1) of the Constitution. The contention was that s 93(5a) of the Act affords to the employer access to the remedy of testing the substantive correctness or fairness of a labour officer’s draft ruling by subjecting it to confirmation proceedings but deprives an employee of access to the same remedy.</p> <p>The contentions of the applicant found favour with the court <em>a quo</em>. It found that s 93(5a) of the Act violates ss 56(1), 56(3), 68(1) and 69(3) of the Constitution.</p> <p>The question for determination is whether or not the issue of the constitutionality of s 93(5a) of the Act was properly before the court <em>a quo</em>.</p> <p><strong>WHETHER THE QUESTION OF THE CONSTITUTIONALITY OF SECTION 93(5a) OF THE ACT WAS PROPERLY BEFORE THE HIGH COURT</strong></p> <p> </p> <p>            Confirmation proceedings are in the nature of a review. The Court, as the highest court in constitutional matters, is endowed with the power to review orders of constitutional invalidity made by lower courts in order to control declarations of constitutional invalidity made against the highest organs of State. See <em>Pharmaceutical Manufacturers Association of South Africa and Anor: In re Ex parte </em><em>President of the Republic of South Africa and Others</em> 2000 (2) SA 674 (CC) at paras 55-56.</p> <p>It is a general rule that a court should not decide constitutional matters unless it is necessary to do so and the order of the court will have a practical effect on the parties.</p> <p>In dealing with confirmation proceedings, the Court is required to firstly establish whether the constitutional question decided by the subordinate court was properly before it. The facts of the case must have justified a challenge to the validity of the legislative provision. In <em>S</em> v <em>Chokuramba</em> <em>supra</em> at p 5 of the cyclostyled judgment the Court held as follows:</p> <p>“The Court must first decide the question whether the constitutional validity of the law or conduct of the President or Parliament in respect of which the order of invalidity was made was a matter properly before the court <em>a quo</em> for determination, regard being had to the circumstances of the case: <em>Zantsi</em> v <em>Council of State, Ciskei and Ors</em> 1995 (4) SA 615 (CC) para 8.”</p> <p> </p> <p>            For a matter raising the question of the constitutionality of legislation to have been properly before a court of law, certain principles would have been observed. A party complaining of the invalidity of a legislative provision must be able to demonstrate that he or she or it has been harmed by the operation of the law the constitutionality of which is sought to be impugned, and that the order of the court will have some practical effect on the protection of his, her or its rights.</p> <p>In <em>Ashwander v Tennessee Valley Authority</em> 297 U.S. 288 (1936) at 346-347, the Supreme Court of the United States of America held that:</p> <p>”1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions</p> <p>‘is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.’</p> <p><em>Chicago &amp; Grand Trunk Ry.</em> v <em>Wellman,</em> 143 U.S. 339, 143 U.S. 345. Compare 49 U.S.<em> Veazie,</em> 8 How. 251; <em>Atherton Mills</em> v <em>Johnston,</em> 259 U.S. 13, 259 U.S. 15.</p> <p>2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it’.</p> <p><em>Liverpool, N.Y. &amp; P. S.S. Co. v Emigration Commissioners,</em> 113 U.S. 33, 113 U.S. 39; [<a name="T2/5" id="T2/5">Footnote 2/5</a>] <em>Abrams</em> v <em>Van Schaick,</em> 293 U.S. 188; <em>Wilshire Oil Co.</em> v <em>United States,</em> 295 U.S. 100. ‘It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’ <em>Burton</em> v <em>United States,</em> 196 U.S. 283, 196 U.S. 295.</p> <p>3. The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ <em>Liverpool, N.Y. &amp; P. S.S. Co.</em> v <em>Emigration Commissioners, supra; </em>compare<em> Hammond</em> v <em>Schapp Bus Line,</em> 275 U.S. 164, 275 U.S. 169-172.</p> <p>…</p> <p>5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.” (the underlining is for emphasis)</p> <p>           </p> <p>In <em>Liverpool, New York and Philadelphia Steamship Co</em> v <em>Commissioners of Emigration</em> 113 U.S. 33 (1885) the Supreme Court of the United States of America at p 39 held that:</p> <p>“It has no jurisdiction to pronounce any statute, either of a State or of the United States, void because [it is] irreconcilable with the Constitution except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”</p> <p> </p> <p>An analysis of the facts of the case shows that the applicant was aggrieved by his dismissal from employment by his former employer in terms of s 6 of the Code of Conduct. While he was advised by his former employer to appeal in terms of s 8 of the Code of Conduct, that provision does not provide for appeals against decisions in disciplinary hearings conducted under s 6 of the Code of Conduct. He ought instead to have appealed to the Labour Court in terms of s 92D of the Act. The section provides that:</p> <p><strong>“92D Appeals to the Labour Court not provided for elsewhere in this Act</strong></p> <p>A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.”</p> <p> </p> <p>The facts illustrate that, due to a misunderstanding of the law, the applicant pursued wrong remedies. He referred the matter to the labour officer in terms of s 8(6) of the Code of Conduct. The labour officer correctly decided that the applicant had used a wrong remedy because s 8(6) of the Code of Conduct created a right of appeal in respect of decisions of the employer, the appeals officer or the Appeals Committee. The matter of the complaint would have had to relate to the decision of the body concerned on an issue before it on appeal or the manner in which it handled the appeal. There must have been an appeal before the body concerned.</p> <p>Section 8(6) of the Code of Conduct reads as follows:</p> <p>“(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 7 working days from the day of receipt of such decision.”</p> <p> </p> <p>The applicant had not appealed to a body constituted for the purposes of s 8(6) of the Code of Conduct. He could not have approached the labour officer in terms of s 8(6) of the Code of Conduct in respect of a matter not arising from the exercise of powers by any of the bodies referred to in the subsection.</p> <p>The Labour Court was required to consider the application for condonation of non-compliance with the rules governing the noting of appeals to it and extension of time within which to appeal. It failed to determine an issue that was before it. The failure vitiated the order given. See <em>PG Industries (Zimbabwe) Ltd</em> v <em>Bvekerwa and Ors</em> SC 53/16, at p 7 of the cyclostyled judgment.</p> <p>The applicant’s matter did not at any time fall within the ambit of the provisions of s 93(5a) of the Act. What is provided for under s 93(5a) of the Act are acts which a labour officer, who would have made a draft ruling and order in terms of subs (5a) of s 93, must do in accordance with the procedure prescribed for reference of the draft ruling and order to the Labour Court for confirmation. Section 93(5a) of the Act cannot be viewed in isolation from the other provisions of s 93 of the Act, particularly subss (3), (5) and (5c), from which it derives the cause for its subject matter. No acts which were performed, or which were required to be performed, by a labour officer fell under the relevant provisions of s 93 of the Act to give rise to the question of the constitutionality of s 93(5a).</p> <p>It is not apparent how the impugned section injured the applicant, as the root of his grievance stemmed from the decision to dismiss him made by the Disciplinary Authority. A declaration of constitutional invalidity would not in any way benefit the applicant. It would not change the status of his dismissal. Nor would it provide him with a remedy.</p> <p>In <em>Uthukela District Municipality and Others</em> v <em>President of the Republic of South Africa and Others</em> 2003 (1) SA 678 (CC) at paras 11-12 it was held that:</p> <p>“If its order will have no practical effect, this Court will not deal with confirmation proceedings. If the order may, despite the repeal of the legislation under consideration, have some practical effect on the parties or on others, the Court will in its discretion decide whether or not to deal with the confirmation. In doing so all the circumstances of the case will be taken into account. Factors that must be taken into account include the nature and extent of any practical effect the order may have, ‘the importance of the issue raised, its complexity, and the fullness of the argument on the issue’.”</p> <p> </p> <p>There is no proper order for confirmation in terms of s 175(1) of the Constitution.</p> <p> </p> <p><strong>GARWE JCC:   I agree </strong></p> <p><strong>MAKARAU JCC:   I agree</strong></p> <p><strong>GOWORA JCC:   I agree</strong></p> <p><strong>PATEL JCC:   I agree </strong></p> <p><strong>GUVAVA JCC:   I agree </strong></p> <p><strong>MAVANGIRA JCC:   I agree</strong></p> <p><strong>MAKONI JCC:   I agree</strong></p> <p><strong>BERE JCC:   I agree</strong></p> <p><em>Civil Division of the Attorney General’s Office</em>, respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/1/2020-zwcc-01.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=38184">2020-zwcc-01.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/1/2020-zwcc-01.pdf" type="application/pdf; length=231158">2020-zwcc-01.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/constitutional-law">Constitutional Law</a></li><li class="vocabulary-links field-item odd"><a href="/tags/constitutional-interpretation">Constitutional Interpretation</a></li><li class="vocabulary-links field-item even"><a href="/tags/constitutional-supremacy">Constitutional Supremacy</a></li><li class="vocabulary-links field-item odd"><a href="/tags/powers-certain-actors">Powers of certain actors</a></li><li class="vocabulary-links field-item even"><a href="/tags/powers-president">Powers of The President</a></li></ul></span><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitutional-practice">CONSTITUTIONAL PRACTICE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-appeal">Constitutional appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/labour-act-chapter-2801">Labour Act [Chapter 28:01]</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2016/53">PG Industries Zimbabwe (Pvt) Ltd. v Bvekerwa &amp; 34 Others (SC 53/2016 Civil Appeal No. SC 79/14) [2016] ZWSC 53 (17 November 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2019/10">S v Chokuramba Justice For Children’s Trust Intervening As Amicus Curiae Zimbabwe Lawyers For Human Rights Intervening As Amicus Curiae (CCZ 10/19, Constitutional Application No. CCZ 29/15) [2019] ZWCC 10 (03 April 2019);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Mon, 27 Jan 2020 20:41:35 +0000 takudzwa 9459 at https://old.zimlii.org Nyamupaguma v The Chairperson (The Disciplinary Committee of Nurses Council of Zimbabwe) & Anor (HH- 453-19, HC 11727/18) [2019] ZWHHC 453 (03 July 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/453 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHAKUPA NYAMUPAGUMA</p> <p>versus</p> <p>THE CHAIRPERSON</p> <p>(The Disciplinary Committee of Nurses Council of Zimbabwe)</p> <p>and</p> <p>THE NURSES COUNCIL OF ZIMBABWE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 4 June &amp; 3 July 2019</p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p> </p> <p><em>H. Mukonoweshuro</em>, for the applicant</p> <p><em>R. Kunze</em>, for the respondent</p> <p> </p> <p>            ZHOU J: This is an application for the setting aside of the proceedings which were instituted against the applicant by the respondents on 20 November 2018 and the decision in terms of which the applicant was found guilty of improper conduct as provided for in the Health Professions Act [<em>Chapter 27:19</em>]. The specific improper conduct which the applicant was found guilty of was of operating an unlicenced practice in contravention of s 107 of the same Act. The application is opposed by both respondents.</p> <p>            Although the application is clearly one for review and says so in the notice thereof, the draft order seeks declaratory relief. Be that as it may the parties made submissions in support of their respective positions. Nothing turns on the specific formulation of the order <em>in casu</em> as it is clear that the applicant is seeking to impeach the proceedings which led to a decision that she was guilty of misconduct. The grounds upon which the application is based are set out in the court application and amplified in the applicant’s founding affidavit.</p> <p>            The factual background to the matter are as follows. The applicant is a General Registered Nurse in terms of the Health Professions Act. The second respondent is a council established in terms of s 41 (1) of the Health Professions Act. Its functions and powers, as defined in s 42 (1) of that Act, include “to define and enforce ethical practice and discipline among nurses”. The first respondent is Chairperson of a Disciplinary Committee of the second respondent. On 20 November 2018 the applicant appeared before the first respondent on charges of committing “an improper or disgraceful conduct or conduct which when regard is had to the Nursing Profession is improper or disgraceful”. The particulars of the charge, as set out in the letter dated 19 October 2018 by which the applicant was invited to attend a preliminary inquiry were as follows: “Sometime in February 2018, you wrongfully, unlawfully and/or intentionally operated an unregistered Health Practice at Parirenyatwa Group of Hospitals”. The letter states that: “Details of the charge are stated in Annexure ‘A’ attached hereto”. The said annexure gives details of a visit to Parirenyatwa Group of Hospital by health inspectors from the second respondent and their discovery of the issues which gave rise to the charge. The applicant filed a statement of her defence in response to the allegations. In the response she objected to the jurisdiction of the second respondent to deal with the case against her. She also contested the allegations on the merits. On 5 December 2018 the first respondent rendered a decision in terms of which she found the applicant not guilty of contravening s 99 (a) and (b) of the Health Professions Act. The applicant was, however, found guilty of improper conduct as provided for in s 107 of the Health Professions Act for operating an unlicenced practice. This is the decision which the applicant seeks to impeach in the proceedings on the grounds that (a) the first  respondent had no jurisdiction to try her for the criminal offence of contravening s 99 (1) (a) and (b)  of the Health Professions Act; (b) the finding of guilt based on “operating an unlicenced practice” was not based on any legal provision requiring a  practice to be licenced, (c) there was violation of the <em>audi alteram partem</em> principle in so far as the charge of operating an unlicensed practice” was not put into the applicant to enable her respond to it; and (d) the conclusion that the applicant was operating an unlicenced practice is irrational.</p> <p>            The objection to the jurisdiction of the first respondent is predicated upon the fact s 99 (1) and (2) criminalizes the conduct stated therein. The applicant’s contention is that only a Magistrates’ Court would be competent to determine the guilt or otherwise of the applicant for contravening that section. But the applicant was not facing criminal prosecution when she appeared before the first respondent. The letter notifying the applicant of the disciplinary proceedings clearly stated that she was being charged in terms of s 107 (a) as read with s 108 and s 99 (1) (a) and (b) of the Act. The precise misconduct alleged was, as stated in that letter, of committing “an improper or disgraceful conduct or conduct which when regard is had to the Nursing Profession is improper”. This is the charge which was put to the applicant at the hearing. The wording of the charge is taken from s 107 (1) of the Act. The alleged breach of s 99 (1) (a) and (b) is the one which was being alleged to the constitutive of the misconduct. The fact that the same breach would ground a criminal prosecution does not prevent the disciplinary committee from relying on it to charge the applicant for misconduct. The first respondent did not purport to sit as a criminal court when he dealt with the matter. For these reasons the objection to the jurisdiction of the first respondent is without merit and must fail.</p> <p>            The second ground for challenging the proceedings is that of irrationality. This complaint arises from the conclusion of the disciplinary tribunal that the applicant was operating an unlicensed practice. The tribunal came to this conclusion after finding that the allegation of operating an unregistered health practice could not be sustained because Parirenyatwa Group of Hospital from which the applicant operated is a registered institution. The Disciplinary Tribunal however found that what the applicant was operating was a practice and that such practice was not registered.</p> <p>             A decision is irrational if it is so outrageous in its defiance of logic or accepted moral standards, see <em>Silver Trucks (Pvt) Ltd </em>&amp; <em>Anor</em> v <em>Director of Customs &amp; Excise</em> (2) 1999 (2) ZLR 88 (H) at 92A; <em>Chiroodza</em> v <em>Chitungwiza Town Council &amp; Anor</em> 1992 (1) ZLR 77 (H). For it to be characterised as irrational the impugned decision must be so wrong that the decision-maker “must have taken leave of his or her senses” or something else must be inferred from it.</p> <p>            There is no determination by the first respondent to show how the conclusion that the applicant was operating an unlicensed practice was reached. The evidence led shows that this was not a practice but a case study for training purposes. The applicant sought and was granted the authority to do the exercise as part of a course which she was studying. She even asked for and was granted the authority to engage a locum nurse to assist her run the project. Those facts do not show improper or disgraceful conduct on her part to justify the conclusion reached. The evidence of Kerith Mukumbi shows that the applicant was allowed to operate from the hospital. In her evidence the clinical director was the one responsible for granting the approval. Whether all the other offices in the institution were informed by the clinical director is not a matter for the applicant. From her evidence it seems that Kerith Mukumbi had issues with the fact that her own superiors did not brief her about the exact nature of the applicant’s operations at the hospital. Because of that she then sought to blame the applicant but in fact her case seems to be against her superiors rather than the applicant. These were clearly proceedings being instituted for the improper motive of settling issues with the clinical director by instituting disciplinary proceedings against the applicant. In the face of written approval by the clinical director for the applicant to operate it is difficult to comprehend the basis upon which the proceedings even proceeded to a finding of guilt.</p> <p>            From the above, I come to the conclusion that the finding that the applicant was guilty of misconduct was irrational. Apart from what has been said above, the irrationality also arises from the fact that the applicant was found guilty of misconduct based on factual allegations which did not arise from the charge. She was found guilty of operating an unlicensed practice yet no such allegation was ever out to her. Even the evidence led did not speak to that allegation.</p> <p>            The approval adopted violated the principle of natural justice known as the <em>audi alteram</em> <em>partem</em> rule which enjoins a decision maker to give an affected party a chance to be heard before making a decision adverse to that party. A breach of the <em>audi alteram partem</em> rule is presumed to be prejudicial to the affected party, see <em>Students Union UZ &amp; Ors</em> v <em>Vice Chancellor, UZ &amp; Ors</em> 1998 (2) ZLR 454 (H). The applicant was not given the opportunity to respond to the charge of operating an unlicensed practice. It was therefore not open to the first respondent to find her guilty of that alleged misconduct. What is worrying about the conduct of the first respondent is that no reasons are given for coming to the conclusion that the applicant was “guilty of improper conduct… for operating an unlicensed practice.” The record of proceedings does not show that issue was ever discussed in the proceedings. Also, where it details the “Findings of the Committee” the record does not refer to an unlicensed practice.</p> <p>            On the question of costs, the draft order states that each party must bear its own costs. This matter would have justified a special order of costs against the respondents given their attitude in opposing the application in the face of evidence showing that the applicant was clearly authorised to operate in the manner that she did by the responsible authority. The clinical director who approved her practice was not even called to testify. Instead, subordinates of the clinical director came to testify. In the case of Kerith Mukumbi she was not even the PNO when the approval was given yet she sought to challenge the approval on the basis merely that her bosses did not report to her about it.</p> <p>            In the result, IT IS ORDERED THAT:</p> <ol> <li>The disciplinary proceedings instituted against the applicant on 20 November 2018 and the subsequent determination handed down on 5 December 2018 be and are hereby set aside.</li> <li>Each party pays its own costs.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>H Mukonoweshuro &amp; Partners</em>, applicant’s legal practitioners</p> <p><em>Chihambakwe Mutizwa &amp; Partners</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/453/2019-zwhhc-453.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20868">2019-zwhhc-453.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/453/2019-zwhhc-453.pdf" type="application/pdf; length=120904">2019-zwhhc-453.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/hr">HR</a></li><li class="vocabulary-links field-item odd"><a href="/tags/human-rights">Human Rights</a></li><li class="vocabulary-links field-item even"><a href="/tags/substantive-rights">Substantive rights</a></li></ul></span><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal">dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/code-conduct">Code of conduct</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/human-rights">HUMAN RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/substantive-rights">Substantive rights</a></li></ul></span> Wed, 17 Jul 2019 08:46:39 +0000 admin 9353 at https://old.zimlii.org Mataruse v E. Mundenda N.O & 2 Others (HH 457-19, HC 2385/17) [2019] ZWHHC 457 (03 July 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/457 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ANDREW MATARUSE</p> <p>versus</p> <p>E. MUNDENDA N.O</p> <p>and</p> <p>PARIRENYATWA GROUP OF HOSPITALS</p> <p>and</p> <p>MINISTER OF HEALTH AND CHILD CARE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>NDEWERE J</p> <p>HARARE,24 October 2017 &amp; 3 July 2019</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p> </p> <p><em>T. Mpofu</em>, for the applicant</p> <p><em>T. Tandi</em>, for the respondent</p> <p> </p> <p>            NDEWERE J: On 20 March, 2017, the applicant filed a court application for review. The grounds of review on page 1 to 2 of the application were as follows:</p> <ol> <li>The decision by the respondents that the applicant is double dipping due to his employment by the second respondent and the University of Zimbabwe and therefore should pay back the remuneration paid to him by the second respondent is grossly irregular. It is illegal and irrational.</li> <li>The instruction by the first respondent that the applicant must resign retrospectively with effect from 19 September, 2016 is unlawful and amounts to constructive dismissal.</li> <li>The unilateral decision by the respondents to cease applicant’s salary is unlawful.</li> </ol> <p>The relief which the applicant sought was the following;</p> <p>“1. The decision of the first respondent communicated to the applicant through a memorandum dated 7 February, 2017, be and is hereby set aside.</p> <p> </p> <p>2. The decision of the respondents to unilaterally cease applicant’s salary be and is hereby set aside.</p> <p> </p> <p>3. The first and second respondent, jointly and severally to pay costs of suit.”</p> <p> </p> <p>The applicant filed a founding affidavit from page 4 of the court application.</p> <p>The first and second respondents filed an opposing affidavit on 3 April, 2017. They said the application did not contain grounds of review. They also said the High Court had no jurisdiction as this was a labour related dispute. In addition the first respondent objected to being cited as a respondent and asked that he be removed from the matter as a party.</p> <p>The respondents further said since the second respondent was a statutory body and capable of suing and being sued in its own name, there was no need to cite the third and fourth respondents as parties in the matter since the second respondents operations were independent of them.</p> <p>On the merits of the application, the respondents confirmed that what applicant did was an act of misconduct. They confirmed that they had Disciplinary Procedures for acts of misconduct. They however said instituting those procedures was their prerogative as employer and in this case they proceeded outside the Disciplinary Procedures and invited the applicant to resign.</p> <p>They also said the applicant should have exhausted domestic remedies and appealed against their decision to the Board instead of approaching the High Court. They prayed for the dismissal of the application with punitive costs.</p> <p>After going through the submissions by both the applicant and the respondents the court made the observations which follow below.</p> <p>The applicants filed a court application for review. After providing the grounds of review on pages 1 to page 2 of the application, they attached a founding affidavit by the applicant from p 4 to 11. On page 7 of the Founding Affidavit, in paragraph 9, the applicant attacked the procedure adopted by the respondents. He repeated this attack in paragraph 10, through the use of the word “unilaterally” in reference to the cessation of his salary. The use of that word shows that the procedure adopted was being criticised in that the applicant was not afforded the right to be heard. In paragraph 12, the use of the phrase “gross irregularity” and the use of “unfounded allegations” in paragraph 13, is a criticism of the procedure adopted. In paragraphs 17, and 18 the failure to follow disciplinary procedures is raised in specific terms.</p> <p>After the founding affidavit, the relief is sought on pages 13 to 14 as follows:</p> <p>“1. The decision of the first respondent communicated to the applicant through a memorandum dated 7 February, 2017, be and is hereby set aside.</p> <p> </p> <p>2. The decision of the respondents to unilaterally cease applicant’s salary be and is hereby set aside.</p> <p> </p> <p>3. The first and second respondent, jointly and severally to pay costs of suit.”</p> <p> </p> <p>            While the applicant must be criticised for not mentioning the specific procedural irregularities in his grounds of review, the court’s view is that since he mentioned them in his founding affidavit, his failure to specify them in the grounds of review is not fatal to his application. The respondents were informed of the basis of the review in the founding affidavit before the Draft Order was attached. So they knew what review case they needed to respond to. They were not prejudiced. Therefore whilst the respondents were correct to criticise the applicant for the failure to “state shortly and clearly” the grounds upon which the applicant sought to have the proceedings set aside or corrected in terms of rule 257, his failure to do so is not fatal because he provided the procedural irregularities in his founding affidavit in the paragraphs alluded to above. The case of <em>Pasalk and Another</em> v <em>Kuzora and Others</em> SC 97/02 referred to by the respondents is a case in point.</p> <p>            At page 94, the court said;</p> <p>            “it is not for the respondent, or the court, to study the affidavits carefully in order to          determine what case the respondent is to answer. The grounds of review must be clearly and shortly stated, and in my view, this must be in the court application itself or, at the commencement of the founding affidavit”.</p> <p>            The above case shows that it is permissible to have the grounds of review in the founding affidavit, although having them on the face of the application itself is more appropriate. The preliminary point of having no grounds of review is therefore dismissed.</p> <p>            On the issue of jurisdiction of the High Court, the respondents are incorrect. Section 171 of the Constitution of Zimbabwe No. 20 of 2013 provides as follows:</p> <p>            “(1)      The High Court—</p> <ul> <li>Has original jurisdiction over all civil and criminal matters throughoutZimbabwe;</li> </ul> <p> </p> <p>Section 13 of the High Court Act provides as follows:</p> <p>“13       Original civil jurisdiction</p> <p>Subject to this Act and any other law, the High Court shall have full original civil jurisdiction over all persons and over all matters within Zimbabwe”.</p> <p> </p> <p>            Section 26 of the High Court Act also provides as follows:</p> <p>            “Subject to this Act and any other law, the High Court shall have power, jurisdiction        and       authority to review all proceedings and decisions of all inferior courts of justice,        tribunals           and administrative authorities within Zimbabwe”.</p> <p> </p> <p>The respondents are one such administrative authority.</p> <p> </p> <p>            In addition, as stated by the applicant in his Answering Affidavit, the applicant is not covered by the Labour Act but by the Health Service Act [<em>Chapter 15:16</em>] and the Health Service Regulations of 2006. The respondents did not dispute this assertion in their submissions. The preliminary point about lack of jurisdiction is therefore dismissed.</p> <p>            The 3rd preliminary point raised by the respondents was that first respondent should not have been cited as a party and should be struck out. The court found no merit in that point. It is first respondent who wrote the Memorandum of 7 February 2017 which appears on p 12 of the application. He wrote it in his capacity as Director of Operations. That is why the letters “N.O” appear after the citation of his name to indicate that he is being proceeded against in his official capacity as Director of Operations and not in his personal capacity. In the Memorandum of 7 February 2017, he never cited the Board or referred to it. He wrote;</p> <p>            “It has come to my attention …”</p> <p>            He did not say “it has come to the Board’s attention,” or . “… to our attention.”   All this shows that his citation as a party to the proceedings was proper since the Memorandum of 7 February 2017 is what started the case between the applicant and the respondents. First respondent’s objection is therefore dismissed.</p> <p>            However, there was no need to cite the third and fourth respondents since second respondent is a statutory body clothed with a legal personality. The court noted, however, that no specific relief was sought against the third and fourth respondents. Furthermore, in view of the provisions of r 87 of the High Court Rules, the citation of third and fourth respondents is not fatal to the application.</p> <p>            Since the first and second respondents have objected to the inclusion of third and fourth respondents and because it appears that their inclusion was not necessary since the second respondent is an independent statutory body, the court will invoke r 87 (2) (a) of the High Court Rules and order the third and fourth respondents to cease to be parties in this matter and shall accordingly strike them off as parties.</p> <p>            As regards the merits of the matter, the court is of the view that the respondents had an arguable case against the applicant. The applicant said he was appointed on an indefinite contract of employment by the second respondent. Then on 20 September 2016, he said in his own words he was appointed “a full time lecturer” in the Medical School at the University of Zimbabwe. He did not indicate when he was going to be available to perform his duties to the second respondent, now that he was “full time” lecturing. It would have been a different case if he had said he was going to be part time.</p> <p>            The applicant said his duties to the two employers were not in conflict with each other. That cannot be correct in relation to time. If  he was lecturing at the Medical School, during that lecture period, if summoned by the Stroke Unit and Neurology Clinic would he be able to respond there and then and abandon his lecture in the middle? The probability is that he would not be available for the clinic until after his lecture was finished. So there was definitely a conflict in relation to his time. It was not possible for him to be available for both jobs at the same time.</p> <p>            However, after identifying the problem of a conflicting appointment of the applicant, the respondents proceeded in an irregular manner. They asked the applicant to resign from 19 September 2016, and asked him to pay back what they had paid him from 20 September 2016. In actual fact, they were saying from 20 September 2016, you ceased to be our employee, so resign from that date and pay us back what we paid you. First respondent intimated that this position had been discussed and then applicant requested that it be put in writing. After putting it in writing, the respondent should have waited for the applicant to accept the arrangement. If he had accepted the arrangement, that would have been the end of the matter. The moment he did not accept it, disciplinary procedures should have been invoked.</p> <p>            The court noted that the respondents confirmed that the applicant committed an act of misconduct. They accepted that they had appropriate disciplinary procedures. They admitted that they proceeded outside the disciplinary processes; saying instituting them was their prerogative. Indeed, it was their prerogative, but if the procedures were not being instituted, applicant’s consent had to be obtained. If it was not obtained, the employer could not unilaterally withdraw the benefits of an employee while that employee was still working except in terms of the disciplinary procedures. If consent was not obtained, then following the disciplinary procedures became imperative. It was no longer a matter of choice. That is because the disciplinary procedures are the process which gives an employee the opportunity to be heard in his own defence.</p> <p>            The failure by the respondents to invoke the disciplinary procedures when the applicant did not resign amounted to gross irregularity.</p> <p>            The issue of exhaustion of domestic remedies did not arise at all.</p> <p>            The respondents referred to s 17 of the Health Services Act [<em>Chapter 15:16</em>]. That section allows any person aggrieved by a verdict reached or punishment given, to appeal to the Hospital Management body. A verdict is given after a disciplinary hearing. So s 17 which the respondent wanted to rely on only applied where the disciplinary process had been followed. Section 17 (4) provides as follows;</p> <p>“Any person who is aggrieved by a verdict reached or punishment imposed following misconduct proceedings conducted in terms of subsection (1) or (2) may appeal to the Board in the form and manner prescribed in service regulations.” (The underlining is my own).</p> <p> </p> <p>So for s 17 to apply, there had to be misconduct proceedings.</p> <p> </p> <p>The application for review therefore has merit and must succeed.</p> <p>The relief sought by the applicant was however, incomplete. His draft order requested that the respondents’ decisions be set aside and he ended there; yet there was need to correct the procedural irregularity committed by the respondents. That is the purpose behind reviewing proceedings which are irregular. The court will therefore set aside the respondents’ decisions and remit the matter back to the second respondent for it to institute disciplinary procedures against the applicant.         </p> <p>            It is therefore ordered that:</p> <ol> <li>The decision of the first respondent communicated to the applicant through the Memorandum of 7 February 2017 be and is hereby set aside.</li> <li>The decision by the respondents to unilaterally cease applicant’s salary be and is hereby set aside.</li> <li>The matter be and is hereby referred back to the second respondent for it to institute disciplinary proceedings against the applicant for the alleged misconduct.</li> <li>The first and second respondents, jointly and severally, to pay the costs of suit.</li> </ol> <p> </p> <p> </p> <p><em>Rubaya and Chatambudza</em>, applicant’s legal practitioners</p> <p><em>Kantor and Immerman</em>, 1st &amp; 2nd respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/457/2019-zwhhc-457.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23836">2019-zwhhc-457.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/457/2019-zwhhc-457.pdf" type="application/pdf; length=128942">2019-zwhhc-457.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/code-conduct">Code of conduct</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/remuneration">Remuneration</a></li></ul></span> Tue, 16 Jul 2019 09:24:04 +0000 admin 9349 at https://old.zimlii.org Masvikeni v National Blood Service Zimbabwe (SC 28/19, Civil Appeal No. SC 113/15) [2019] ZWSC 28 (04 March 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/28 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (26)</strong></p> <p> </p> <p><strong>EMMANUEL     MASVIKENI</strong></p> <p><strong>v</strong></p> <p><strong>NATIONAL     BLOOD     SERVICE     ZIMBABWE</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, GARWE JA &amp; MAVANGIRA JA</strong></p> <p><strong>HARARE, </strong>NOVEMBER 10, 2017 AND MARCH 4, 2019</p> <p>                                                                                                                    </p> <p> </p> <p><em>M. Nkomo</em>, for the Appellant</p> <p><em>T. Zhuwarara </em>with<em> R.G. Zhuwarara</em>, for the Respondent</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA</strong>:        This is an appeal against the whole decision of the Labour Court confirming the dismissal of the appellant from the respondent’s employ. </p> <p> </p> <p><strong>Factual Background</strong></p> <p>The appellant was employed by the respondent as a Blood Procurement Manager from October 2001 to April 2012 when he was dismissed. Sometime in 2011, anonymous emails containing divisive and damning allegations against certain staff members as well as his superior, the Chief Executive Officer of the respondent, were circulated and sent to various employees of the respondent. The respondent conducted some investigations and concluded that the appellant was the author of the anonymous emails.</p> <p> </p> <p>Consequently, in October 2011, the appellant was charged in terms of the “National Blood Service Zimbabwe Code of Conduct” (sic), (“the Code”), with the following acts of misconduct:</p> <ol> <li>Section 3(c)(vi): Writing and publishing anonymous letters which damaged the reputation of his superior or colleague</li> <li>Section 4(a)(ii): Deliberately giving untrue and misleading information about his superior concerning his professional behavior by alleging that he distributed diseased blood.</li> <li>Section 4(a)(vii): Accusing his superior of nepotism in the anonymous letters he published.</li> </ol> <p> </p> <p>A written invitation to the appellant to respond to the allegations met no response. On 16 November 2011 he was suspended from duty with no salary.</p> <p> </p> <p>A disciplinary hearing was then conducted on 13 April 2012. Despite having been properly served with the notice of hearing, the appellant did not attend the hearing. After making its deliberations on the evidence and papers that were before it, the disciplinary committee found the appellant guilty of all 3 charges. The appellant was invited to make submissions in mitigation before the imposition of a penalty. The invitation met no response. Eventually, on 26 April 2012, the appellant was advised of the penalty imposed on him. On the first charge a final written warning was found to be the appropriate penalty. On the second charge the penalty was dismissal. On the third charge the penalty was also dismissal. </p> <p> </p> <p>On the 30th of April 2012, the appellant lodged an internal appeal to the Finance and Administration Manager in terms of the Code. The Manager dismissed the appeal in a reasoned ruling for lack of merit.</p> <p> </p> <p>Aggrieved thereby and in terms of the same Code, the appellant appealed to the Board Chairman. The appellant then also requested the Board Chairman to recuse himself from the matter. The basis of the application for recusal was that the Board Chairman had previously been involved in the matter leading up to the appellant being charged and subsequently dismissed. The Board Chairman recused himself from the matter and indicated that “(T)he appeal would be referred to the Labour Court in accordance with the provisions of the Code of Conduct.” However, this did not happen.</p> <p> </p> <p>In February 2013, the appellant eventually referred the matter to a Labour Officer in terms of the Labour Act. The parties did not settle at conciliation and subsequently the matter was referred to arbitration.</p> <p> </p> <p>On 30 July 2013, the Arbitrator ordered the respondent to constitute an Appeals Committee to hear and determine the appellant’s appeal against the decision of the Finance and Administration Manager which had confirmed the appellant’s dismissal from employment as decided by the disciplinary committee. </p> <p> </p> <p>The Appeals Committee was set up and, on 5 August 2013, it heard the appellant’s appeal and came to the conclusion that the appellant’s appeal lacked merit and it therefore dismissed it.  It was against that decision of the Appeals Committee that the appellant noted an appeal to the court <em>a quo</em>.</p> <p>The appellant raised seven grounds of appeal in the court <em>a quo</em>. Four of the grounds related to the composition and appointment of the disciplinary committee. Although there was no appeals officer involved at any stage in the matter, curiously, one of the appellant’s grounds of appeal was couched in the following terms: “The Appeals Committee erred at law and misdirected itself in upholding the decision of the Appeals officer and Disciplinary Committee despite clear evidence of bias in both the Appeals Officer and the Disciplinary Committee” (sic). From a reading of the papers, it can safely be assumed that the reference to an “Appeals Officer” ought in fact to be a reference to the Appeals Committee. This is so because it is the Appeals Committee which heard the appellant’s appeal against the decision of the Finance and Administration Manager to whom he had appealed against the decision of the disciplinary committee.</p> <p> </p> <p>The appellant also challenged the determination made by the Appeals Committee which upheld the decision of the disciplinary committee to the effect that he was not entitled to legal representation in terms of the Code of Conduct.</p> <p> </p> <p>In the rest of his grounds of appeal, the appellant challenged the finding that the information which was contained in the emails was untrue, erroneous or misleading and that it had the effect of damaging his superior’s or anyone’s reputation. He also sought to challenge the interpretation given by the disciplinary committee to s 4 (a) (vii) of the Code of Conduct which interpretation was confirmed by the Appeals Committee thereby leading to the upholding of his conviction. In terms of the Code the following is a dismissible misconduct: “Any other act of prejudice towards the organisation, fellow members of staff, or members of the public, such as racism, tribalism, nepotism, sexism and regionalism.” The appellant’s contention in this regard is that on a proper interpretation of the provision he ought not to have been charged. Rather, it is the person that he accused of practicing nepotism that ought to have been charged with the misconduct. The conflicting contentions are dealt with in more detail at pp 13 – 15 of this judgment under the heading: “<strong>2. Whether or not the court <em>a quo </em>wrongly interpreted section 4 (a) (vii) of the respondent’s code of conduct”. </strong> </p> <p> </p> <p>The court <em>a quo</em> found that the appellant had admitted to publishing the anonymous emails and in so doing meant to damage the name of a superior or colleague. The court further held that the interpretation that had been attributed to s 4 (a) (vii) was correct as it was clear that the listed items in the provision were not exhaustive. The court thus concluded that the appellant’s appeal lacked merit and dismissed it.</p> <p> </p> <p><strong>PROCEEDINGS BEFORE THIS COURT</strong></p> <p>The appellant was aggrieved by these findings and conclusion of the court <em>a quo</em>, hence the present appeal.</p> <p> </p> <p>The appellant’s grounds of appeal are crafted as follows:</p> <ol> <li>The court <em>a quo</em> seriously misdirected itself on the facts when it concluded that <strong>“the challenged grounds for review relate to the composition of the appeals committee”</strong>. This amounts to a misdirection in law in that it led the court to follow a wrong path and reach a decision which is bad at law. (sic)</li> <li>The court <em>a quo</em> misdirected itself at law when it focused on the improper appointment of the disciplinary committee, per se, rather than determining the substantive correctness of the decision of the Appeals Committee whose decision was being appealed against.</li> <li>The court <em>a quo</em> misdirected itself in dismissing grounds of appeal one, two and three as grounds for review despite the clear and unambiguous language to the effect that it was the decision of the appeals committee which was being challenged.</li> <li>The court <em>a quo</em> grossly misdirected itself when it ruled that <strong>“it is not in issue that the appellant was the author of the emails. This was admitted ...”</strong> Nothing in the submissions placed before her supported this conclusion. This error of fact is so fundamental that it amounts to a misdirection at law. (sic)</li> <li>The court <em>a quo</em> grossly erred and misdirected itself when it concluded that the appellant ought to have established the truthfulness of what he allegedly published. This would be tantamount to turning the established principle that <strong>“he who alleges must prove”</strong> on its head. It is a misdirection at law. (sic)</li> <li>The court <em>a quo</em> grossly erred and misdirected itself in its interpretation of s 4 (a) (vii) of the Code of Conduct and failing to appreciate that the charge would only stick if the alleged offender is the one committing the act of prejudice.</li> </ol> <p> </p> <p>The appellant’s prayer is for his appeal to be allowed and for his reinstatement without loss of salary and benefits with an alternative of payment of damages.</p> <p> </p> <p>In dealing with the appeal before it, the court <em>a quo</em> struck out some of the appellant’s grounds of appeal on the basis that they were grounds for review and not grounds of appeal.  The grounds challenged the composition and appointment of the committee and they also alleged bias. It is the striking out of those grounds which the appellant is now challenging in his grounds of appeal numbers 1, 2 and 3.</p> <p> </p> <p>It is common cause that the appellant did not attend the disciplinary hearing. For that reason, his decision to challenge the composition and appointment of the committee at the appeal stage was no longer available to him. Such objections could only have been raised at the disciplinary hearing which he opted not to attend. The principle was explained in clear terms in the case of <em>Moyo v Rural Electrification Agency</em> SC-4-14:</p> <p>“In our view the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings.  He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing.  In these circumstances we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”</p> <p> </p> <p> </p> <p>The effect therefore is that the issues raised by grounds 1, 2 and 3 fell away the moment the appellant absented himself from the disciplinary proceedings. At the hearing of this appeal, the appellant conceded this point and abandoned the said grounds 1, 2 and 3. The concession was properly made.</p> <p> </p> <p><strong>ISSUES RAISED FOR DETERMINATION</strong></p> <p>The remaining grounds of appeal raise two issues, that is, whether or not the court <em>a quo</em> made findings supported by the evidence on record and whether or not the court <em>a quo</em> wrongly interpreted s 4 (a) (vii) of the respondent’s code of conduct. I deal with each of these in turn.</p> <p> </p> <ol> <li><strong>Whether or not the court <em>a quo</em> made findings supported by evidence on record.</strong></li> </ol> <p>The court <em>a quo</em> found that it was not in issue that the appellant authored the emails because he had admitted doing so.</p> <p> </p> <p>The appellant contends that nowhere in the record did he admit to having published the anonymous emails. He contends that all that is on record are allegations by the respondent that the anonymous emails were authored by him. Furthermore,   that he had denied the allegations throughout. It was also argued that nothing proving the allegations was placed before the court <em>a quo</em> except for a bare averment by the respondent in its papers that on 22 November 2011, the appellant deposed to an affidavit, which affidavit was never placed before the court, admitting to authoring the emails.</p> <p> </p> <p>However, a perusal of the record will show why the finding of the court <em>a quo </em>is supported by the evidence.</p> <p> </p> <p>At page 150 of the record is a document marked as “Appendix 22” and headed “Charges proffered against Mr. Emmanuel Masvikeni as per the Code of Conduct of the National Blood Service Zimbabwe”. It lists as evidence of the misconduct in terms of s 3 (c) (vi) emails dated 3 and 7 December 2010 which were sent at 11.52 and 15.27 respectively to undisclosed recipients. It also lists emails dated 31 July 2011 sent at 22.46 to undisclosed recipients and it also states that “(I)n his affidavit dated 22 November 2011, Mr Masvikeni admits to sending the anonymous emails.” The affidavit is not part of the record before this Court thereby limiting the extent to which the reference to it could assist in the determination of this matter.</p> <p> </p> <p>More importantly though, on 5 August 2013, the following questions were asked by the Board Chairman (TC) and answers thereto were given by the appellant’s legal practitioner (MN) at the Appeals Committee hearing:</p> <p>“TC: Can I continue to ask? We were talking about the anonymous emails and letters. You said you were to agree with you on the issues. (sic) He is agreeing that he circulated the emails?</p> <p>MN: Yes</p> <p>TC: Ok, and with all its contents. It was not tampered.</p> <p>MN: We don’t know the information that was contained. Those emails were never availed to us.” (the underlining is mine)</p> <p> </p> <p> </p> <p>Further, the following exchanges also took place between the appellant’s legal practitioner, MN and board members, JN and NM:</p> <p>“TC: I want to work with the numbers there. Can I have the email he sent talking about the release of blood. The circulation of the anonymous mail which talks of the release of blood. (sic)</p> <p>NM: NBSZ Bulawayo branch sold an estimated 200 units of blood …</p> <p>NM: Well I can tell you that from the other matter that I have for him he has clearly distanced himself from that particular email.</p> <p>JN: Mr Chairman I am really confused. At one time you saying he did say that there was … now you are saying he is distancing himself from this email.</p> <p>MN: He never mentioned quantities in his correspondence so whoever put the quantities is something different. (sic)</p> <p>JN: You are querying the quantity and not the contents?”</p> <p> </p> <p> </p> <p>Subsequently, the following exchange ensued:</p> <p>“TC: Any other questions? I was putting down my questions. I just want to find out so that when we make a decision we have enough complete information. Does he agree he is the author of emails? (sic)</p> <p>MN: There are some contents that we are disputing honestly.</p> <p>NM: Did he circulate some emails?</p> <p>MN: He did circulate some emails but there are others that he did not circulate he is alleged. You know what Mr Chairman the difficulty we have is if we give the blanket an unqualified response (sic) you may interpret it otherwise we need to qualify our response. Specifically he never mentioned the quantities …</p> <p>NM: Does he have the emails he circulated? So that we can at least have the basis of saying these are the ones I circulated and these I did not.</p> <p>MN: Unfortunately we do not have the emails. The other computer crashed. Some of the emails were wanted by these guys when they instituted some mysterious criminal prosecution so his two laptops are actually captured as exhibits as we speak right now. There is a possibility that maybe or maybe not they may be on the hard drive of those captured computers.</p> <p>….</p> <p>MN: … What we are saying is that there are some infractions into his emails some people were employed to hack into his emails so he had to clean up his email accounts and discontinue some of them.</p> <p>TC: Who were employed?</p> <p>MN: By people whose names we are going to reserve.”</p> <p> </p> <p> </p> <p>Without quoting the whole text of the ensuing exchanges, suffice to quote the following answer given by the appellant’s legal representative to a question from a board member:</p> <p>“… all these acts of misconduct he was being victimised because he raised a red flag and the audit report confirmed the issues.” (sic)</p> <p> </p> <p> </p> <p>In light of this exchange, on a balance of probabilities, the appellant admitted, through his legal practitioner, that he is the one who published the emails in issue. He seems to prevaricate and avoid giving simple or straight forward answers.  He also purports to take issue with some of the content of the emails and seeks to create an impression that his email accounts were hacked and the hackers added some content relating to quantities, into emails that he authored, which content was not authored by him thereby producing the objectionable overall content. At the same time the appellant also seems to justify his authoring of the emails on the basis that the content thereof or the issues raised therein are after all true.</p> <p> </p> <p>In these circumstances, the finding of the court<em> a quo</em> that the appellant admitted to authoring the emails is a reasonable finding in the circumstances. This is particularly so when consideration is given to the fact that the applicable standard of proof is “a balance of probabilities.”</p> <p> </p> <p>The court <em>a quo </em>thus made findings that are supported by the evidence on record.</p> <ol> <li><a name="_Hlk509923820" id="_Hlk509923820"><strong>Whether or not the court <em>a quo</em> wrongly interpreted section 4 (a) (vii) of the respondent’s code of conduct.</strong></a></li> </ol> <p><strong>Section 4 </strong>(a) (vii) of the National Blood Service Zimbabwe Code of Conduct reads as follows;</p> <p>“4 DISHONESTY, THEFT, FRAUD AND RELATED OFFENCES</p> <ul> <li> </li> </ul> <p>(vii)     Any other act of prejudice towards the organisation, fellow members of staff, or members of the public, such as racism, tribalism, nepotism, sexism, regionalism.”</p> <p> </p> <p> </p> <p>It also states that the penalty for a first offence is dismissal.</p> <p> </p> <p>The court <em>a quo</em> held at page 3 of its judgment:</p> <p>“It is not in issue whether or not the appellant was the author of the emails. This was admitted. What is in issue is whether or not the appellant, in publishing the emails, meant or intended to damage the reputation of his superior or colleague, whether or not the information was untrue, erroneous or misleading and finally what the correct meaning of section 4 (a) (vii) was and whether or not the appeals committee misdirected itself by failing to appreciate the true meaning of the section.” </p> <p> </p> <p> </p> <p>The court <em>a quo</em> continued at page 5 of its judgement as follows:</p> <p>“The section refers to any other act or conduct such as nepotism, sexism, etc. The examples given such as nepotism and sexism cannot be taken to have been exhaustive. A literal reading of the section only shows that the items listed were only examples and not meant to be exhaustive. The appeals committee did not err.”</p> <p> </p> <p> </p> <p>And further:</p> <p>“On the merits of this case … the appeals committee did not err in finding that the appellant had published information that he failed to show was correct and truthful. He must have meant to damage the name of either a superior or a colleague. He was therefore guilty on the merits of the case.”</p> <p> </p> <p> </p> <p>The appellant’s contention is that this interpretation of the provision by the court <em>a quo</em> was wrong in that the court failed to appreciate that if the literal rule of interpretation was applied, the charge would only be valid if the appellant was the one accused of prejudicial conduct. In <em>casu</em>, the appellant contends that he was rather being charged with the misconduct of accusing his superior of practising nepotism. He contends that that was a result of an improper interpretation of the section. His conduct, in his view, is above board and did not justify the laying of the charge against him as he was not the one practising nepotism.</p> <p> </p> <p>The respondent however argues that the manner in which s 4 (a) (vii) is crafted cannot be deemed to be exhaustive because prejudicial acts are not limited to those that are specifically mentioned. Any other acts which can be shown to be prejudicial also fall under the provision.</p> <p> </p> <p>A close reading of the provision shows that it incorporates the misconduct that the appellant was charged with. The use of the words ‘any other act of prejudice’ and the words ‘such as’, is an indication that the prejudicial acts which any person may be charged with under the provision are not limited to the ones that are specifically mentioned.  Once this is accepted, the conduct of the appellant in publishing untrue and misleading material meant to damage the name of the Chief Executive Officer qualifies as “any other act” which is prejudicial to a fellow member of staff. The section proscribes any other act of prejudice. The appellant’s conduct does fall into this category.</p> <p> </p> <p>It is for the above reasons that I find that the interpretation given to the provision by the court <em>a quo</em> was correct.</p> <p> </p> <p>Accordingly, I hold that this appeal lacks merit and must be dismissed. There being no reason advanced why this Court must hold otherwise, costs will follow the cause.</p> <p> </p> <p>Accordingly, it is ordered that:</p> <p>The appeal be and is hereby dismissed with costs<em>.</em></p> <p> </p> <p> </p> <p><strong>GWAUNZA JA:                        </strong>I agree</p> <p> </p> <p> </p> <p><strong>GARWE JA:                              </strong>I agree</p> <p> </p> <p> </p> <p><em>Donsa-Nkomo &amp; Mutangi Legal Practice</em>, appellant’s legal practitioners</p> <p> </p> <p><em>D.M.H. Commercial Law Chambers</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/28/2019-zwsc-28.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27325">2019-zwsc-28.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/28/2019-zwsc-28.pdf" type="application/pdf; length=175106">2019-zwsc-28.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-confidence-servant">Breach of confidence by servant</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal">dismissal</a></li></ul></span> Mon, 10 Jun 2019 08:06:21 +0000 admin 9311 at https://old.zimlii.org British American Tobacco Zimbabwe v Chibaya (SC 30/19, Civil Appeal No. SC 429/16) [2019] ZWSC 30 (15 March 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/30 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p><strong>DISTRIBUTABLE</strong><strong>               (28) </strong></p> <p> </p> <p><strong>BRITISH     AMERICAN     TOBBACO     ZIMBABWE </strong></p> <p><strong>v</strong></p> <p><strong>JONATHAN     CHIBAYA</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GOWORA JA &amp; MAVANGIRA JA </strong></p> <p><strong>HARARE, JUNE 20, 2017 &amp; MARCH 15, 2019</strong></p> <p> </p> <p><em>S. M. Hashiti, </em>for Appellant</p> <p><em>K. Gama,</em> for Respondent</p> <p>             </p> <p> <strong>MAVANGIRA JA</strong>:       This is an appeal against the entire judgment of the Labour Court dismissing the appellant’s appeal against a decision of the Grievance and Disciplinary Committee of the National Employment Council for the Tobacco Industry (“the NEC Grievance and Disciplinary Committee”) which found that the appellant had failed to prove a <em>prima facie</em> case against the respondent.</p> <p> </p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p> </p> <p>The appellant, British American Tobacco Zimbabwe, is a company registered in terms of the laws of Zimbabwe. The respondent was employed by the appellant as a trade marketing representative.</p> <p> </p> <p> </p> <p>The respondent was charged with an act of misconduct which was couched in the following terms:</p> <p>“<strong>Alleged Act of Misconduct: Dishonesty, theft, fraud and related matters</strong></p> <p><strong>            Violation of Clause (d) defined as;</strong></p> <p>Theft, or abetting theft, fraud or embezzlement or extortion or corruption and bribery:</p> <p>Charges against you are emanating from that on 31st may 2012 you allegedly withdrew US$2,605.00 from British American Tobacco Zimbabwe’s (BAT Zimbabwe) account and converted this amount to your own use.”</p> <p> </p> <p> </p> <p> </p> <p>The charge arose after it was discovered that there were two withdrawals of an amount of USD2 605-00 from the appellant’s Standard Chartered Bank account on two occasions, namely, 18 May 2012 and on 31 May 2012 using one withdrawal instruction. The withdrawal of 18 May 2012 was authorised and was made by the respondent. The withdrawal of 31 May 2012 was unauthorised and was deemed fraudulent as the instruction used on 18 May 2012 was the same one which was used again to withdraw money on 31 May 2012. On the face of it the latter withdrawal was also made by the respondent.</p> <p> </p> <p> </p> <p>The charges were laid almost a year later, on 29 July 2013 and the respondent was suspended from work with full pay and benefits in terms of the applicable Code of Conduct being the Collective Bargaining Agreement: Tobacco Industry (Tobacco Industry Code of Conduct, SI 322/96).  A disciplinary hearing was held and the Disciplinary Committee found the respondent guilty as charged on the basis of a forensic report by a forensic scientist who, after analysing several samples of the respondent’s signature, concluded that the signature on 31 May withdrawal slip was consistent with the respondent’s standard signature. Consequently the respondent was dismissed from employment with effect from 30 August 2013, the date on which the disciplinary committee made the decision.</p> <p> </p> <p>The respondent appealed to the Works Council against the dismissal. The appeal was heard on 24 September 2013 and the proceedings were adjourned to allow the panel to:  </p> <ul> <li>obtain the original withdrawal documents;</li> <li>get an explanation from the bank on the processing of a withdrawal slip;</li> <li>get confirmation from the bank whether video evidence was still available; and</li> <li>seek clarification on issues raised by the Mutare branch manager during the initial hearing.</li> </ul> <p> </p> <p>However, without obtaining and considering the documents and evidence it had hoped to get from the bank, on 25 November 2013, the Works Council made and availed its decision upholding the dismissal penalty by the Disciplinary Committee.</p> <p> </p> <p> </p> <p>Aggrieved by the decision of the Works Council, the respondent further appealed to the NEC Grievance and Disciplinary Committee which upheld his appeal and set aside the order by the Works Council. The NEC Grievance and Disciplinary Committee’s reasoning in arriving at this decision was that the only evidence which the appellant had relied on, namely the handwriting expert’s report, was unreliable as it was based on photocopies which do not clearly show some of the features and that therefore the appellant had failed to prove its case against the respondent.</p> <p> </p> <p> </p> <p>Further the NEC Grievance and Disciplinary Committee found that the bank was not co-operative as it failed to provide information which would have assisted the committee in its determination of the guilt of the respondent or otherwise. This information included the original withdrawal slip, the relevant video footage and an explanation of how withdrawal slips are processed. In light of the inconclusive handwriting report and the missing information which the bank was reluctant to supply, the NEC Committee concluded that, whilst the respondent’s connivance with the bank could not be ruled out, on the proven facts and available evidence, the appellant had failed to prove respondent’s guilt on a balance of probabilities.</p> <p> </p> <p>Aggrieved by the decision of the NEC Grievance and Disciplinary Committee, the appellant noted an appeal to the Labour Court. The appellant’s grounds before that court were essentially that the NEC Committee had erred at law and misdirected itself in a number of respects. It had erred and misdirected itself in holding that the appellant had failed to substantiate its claim when it found that connivance with the bank could not be ruled out; in disregarding the forensic report by the handwriting expert; in ignoring the respondent’s identification details which were affixed on the withdrawal slip and in holding that the fraudulent transaction had been committed by a member of the bank.</p> <p> </p> <p>The court <em>a quo</em> upheld the decision of the Committee. It reasoned that the withdrawal slip of 31 May 2012 was effected at 0800 hours, a time when the doors of the bank get opened to the public and that there was no evidence that was led to show that the respondent was already in the bank at that time. Further, it found that the forensic report relied upon was based on the examination of photocopies and not the original documents which were kept at the bank. Consequently, the court <em>a quo</em> concluded that the evidence on record pointed rather to the involvement of the bank’s personnel and not that of the respondent. The appeal was thus dismissed.</p> <p> </p> <p> </p> <p><strong>BASIS OF PRESENT APPEAL</strong></p> <p>Aggrieved by the court <em>a quo’s</em> decision, the appellant has appealed to this Court on the following grounds:</p> <ol> <li>The court <em>a quo</em> erred and misdirected itself in failing to find that sufficient evidence, including expert forensic evidence and facts had been established linking the respondent to commission of the offences charged under clause (d) of SI 322 of 1996.</li> <li>The court <em>a quo</em> further erred and misdirected itself in failing to find that, in any event, sufficient evidence had been led to establish respondent’s connivance in the commission of the offences charged under clause (d) of SI 322 of 1996</li> <li>The court <em>a quo</em> further erred and misdirected itself in rejecting expert evidence pointing to the respondent’s guilt and connivance in the commission of the offence charged under clause (d) of S.I 322 of 1996</li> <li>The court <em>a quo</em> consequently erred and misdirected itself in failing to find that the respondent’s guilt had been established and consequently his dismissal was lawful.</li> </ol> <p> </p> <p> </p> <p><strong>THE ISSUE</strong></p> <p>From these grounds of appeal and the facts above, the only issue for determination is whether or not there was sufficient evidence in the record to link the respondent to the commission of the offence.</p> <p> </p> <p> </p> <p><strong>APPELLANT’S SUBMISSIONS BEFORE THIS COURT</strong></p> <p>The submission by Mr <em>Hashiti, </em>on behalf of the appellant, in both his written and oral submissions, is that the appellant managed to prove on a balance of probabilities that the fraudulent withdrawal of its funds on 31 May 2012 was made in the respondent’s name and on his signature, that the withdrawal instruction bore the respondent’s identity details, all of which aspects were confirmed by the handwriting expert’s report which concluded that the signature on the withdrawal slips matched that of the respondent.</p> <p> </p> <p> </p> <p>Consequently, the appellant argued, the respondent was guilty of the offence charged and the NEC Grievance and Disciplinary Committee had therefore wrongly found him not guilty.</p> <p> </p> <p><strong>RESPONDENT’S SUBMISSIONS BEFORE THIS COURT</strong></p> <p>Mr <em>Gama, </em>for the respondent, argued that the appellant failed to prove on a balance of probabilities that the respondent had committed the offence. He argued that the respondent could not have signed the withdrawal slip of 31 May 2012 because he could not have been in the bank before the bank’s opening time for him to have been served at 8.00am and that therefore the withdrawal could only have been done by a staff member of the bank.</p> <p> </p> <p> </p> <p>He further argued that the handwriting expert’s report was unreliable and inconclusive because the expert relied on photocopies of the withdrawal slips in assessing the signature. To show the unreliability of the photocopies the respondent pointed out the fact that the expert missed the variation between the forged signature on the photocopy of the 31 May 2012 withdrawal slip which ended with two dots and the appellant’s standard signature which had none.</p> <p> </p> <p> </p> <p><strong>ANALYSIS </strong></p> <p>            The charges that were laid against the respondent arose after the withdrawal of 31 May 2012 because the withdrawal slip was in his name and was purportedly signed by him. In addition, his identification particulars were also recorded thereon. A perusal of the record shows that there was no direct evidence linking the respondent to the offence. The appellant relied on circumstantial evidence. The respondent on his part argued that the circumstantial evidence relied on did not prove that he was guilty.</p> <p> </p> <p>In <em>S v Tambo</em> 2007 (2) ZLR 33 (H), 34 C-D (a criminal matter), the court held that;</p> <p>“Circumstantial evidence can only be used to draw an inference if the inference sought to be drawn is the only reasonable one which can be drawn from those facts. It must be supported by rational reasoning and an analysis of the proved facts. The correct judicial assessment of evidence must be based on establishing proved facts, the proof of which must be a result of careful analysis of all the evidence led. The final result must be the product of an impartial and dispassionate assessment of all the evidence placed before the court.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>However in cases where not only one inference can be drawn, the court in <em>Ebrahim v Pittman NO</em> 1995 (1) ZLR 176 (H), 176, held that;</p> <p>“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probabilities, select a conclusion which seems to be the more natural or plausible (in the sense of credible) conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.”(emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>In <em>Miller v Minister of Pensions</em> [1947] 2 All ER 372, 374, the concept of balancing probabilities was explained as follows;</p> <p>“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>In the book, The South African Law of Evidence, 4th Edition, <em>Hoffman and Zeffertt</em> state as follows:</p> <p>“In a civil case … if the facts permit more than one inference, the court must select the most plausible. If this favours the plaintiff, he is entitled to judgment. If inferences in favour of both parties are equally possible, the plaintiff has not discharged the burden of proof.…</p> <p> </p> <p>Selke J held in <em>Govan v Skidmore</em> that the selected inference must ‘by the balancing of probabilities be the more natural, or plausible, conclusion from among several conceivable ones.’”</p> <p> </p> <p> </p> <p> </p> <p>The learned authors expound further and explain that the court may however find that the contentions of the party who has produced no evidence are the more probable. They state that what is weighed in the balance is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case.</p> <p> </p> <p> </p> <p>In the text Principles of Evidence, 4th edition, the authors Schwikkard and van der Merwe similarly state:</p> <p>“In civil proceedings the inference sought to be drawn must also be consistent with all the proved facts, but it need not be the only reasonable inference: it is sufficient if it is the most probable inference. For example, in <em>AA Onderlinge Assuransie-Assosiasie Bpk v De Beer</em> (1982 (2) SA 603 (A)) it was held that a plaintiff who relies on circumstantial evidence does not have to prove that the inference which he asks the court to draw is the only reasonable inference: he will discharge his burden of proof if he can convince the court that the inference he advocates is the most readily apparent and acceptable inference from a number of possible inferences.”</p> <p> </p> <p> </p> <p> </p> <p> In <em>casu</em>, the appellant having alleged that the respondent had committed an offence, had the burden to prove the allegation. It is trite in our law that he who alleges must prove. It was the evidence of the appellant that the fraudulent withdrawal slip was processed at 0800hours on 31 May 2012. The fraudulent withdrawal was made in the name of the respondent and an almost similar signature to his was affixed to the withdrawal slip.  The withdrawal slip also bore the respondent’s personal details.</p> <p> </p> <p> </p> <p>It was on the strength of this that the charge was laid against the respondent leading to a disciplinary hearing, where a handwriting expert was called to examine the withdrawal slip to determine whether it was forged or it was indeed signed by the respondent. The expert found that the signature on the withdrawal slip was the same as the appellant’s standard signature. The expert’s conclusion was based on an examination of photocopies and it was on this score that the respondent challenged the expert’s finding as well as the fact that his true signature had no dots as reflected on the signature appearing on the photocopies.</p> <p> </p> <p> </p> <p>The bank was asked to assist in this matter but was not co-operative. At one point it was asked to provide the original copies of the withdrawal slip; it was also asked to assist with an explanation of the processing of a withdrawal slip and to also produce a video footage placing the respondent at the bank. The bank did not come through on all these requests. The bank’s uncooperative attitude must be viewed against the backdrop of the allegation that the bank knew or already had the respondent’s details; that the withdrawal slip was at all material times in the possession of the bank and was never accessed by the respondent and that the same bank teller who had served the respondent and processed the withdrawal of 18 May 2012 was the same teller who processed the same withdrawal on 31 May 2012.</p> <p> </p> <p> </p> <p>The bank’s uncooperative attitude is not irrelevant in the determination of this appeal. The specific requests that were made of it were in relation to critically material aspects that would need to be adverted to in determining whether, on a balance of probabilities, the respondent could be said to be guilty. In the absence of such, the guilt of the respondent cannot be said to have been proved, even on a balance of probabilities. The finding of the NEC Grievance and Disciplinary Committee, which was confirmed by the court <em>a quo</em> cannot, in the circumstances, be faulted.</p> <p> </p> <p> </p> <p>The finding was that the probabilities pointed to the direct involvement of a bank official in the dishonest activities, particularly because the transaction took place at 8.00am, the exact time that the bank would have been opening its doors to the public. No evidence placed the respondent at or inside the bank at the relevant time. The bank already had the respondent’s personal details. There was no evidence that the respondent had ever accessed the withdrawal slip in question as it remained in the bank’s possession at all material times. This is particularly significant when note is taken of the fact that the withdrawal slip was in the bank’s possession for some thirteen days before the second withdrawal was made. The bank’s failure to cooperate unfortunately meant that a number of possibilities cannot be discounted in this matter.</p> <p> </p> <p> </p> <p>The court <em>a quo</em> found that, because the bank was in possession of the withdrawal slip, any of its officials could have used the documents that had previously been presented in order to capture the signature and the identity particulars of the respondent.  The court <em>a quo</em> found that it was not clear whether the respondent was involved or not in the withdrawal of 31 May 2012. The appellant’s involvement was thus not proved. The appellant’s involvement or guilt in the withdrawal that occurred on 31 May 2012 was not the most readily apparent and acceptable inference. Rather, the balance of probabilities tended, in the view of the court <em>a quo</em>, to point to direct involvement by the bank or its employees.</p> <p> </p> <p>Regarding the evidence of the handwriting expert, it is trite that expert opinion evidence is admitted in evidence to assist the court to reach a just decision by guiding the court and clarifying issues not within the court’s general knowledge.  In <em>Menday v Protea Assurance Co. Ltd</em> 1976 (1) SA 565 at 569B-C it was stated that</p> <p>“It is not the mere opinion of the expert witness which is decisive but his (or her) ability to satisfy the Court that, because of his (or her) special skill, training and experience, the reasons for the opinion which he (or she) expresses are acceptable.” </p> <p> </p> <p> </p> <p>In <em>R v Chidota </em>1966 (3) SA 428, (another criminal matter) the learned judge QUENET (JP), held that:</p> <p>“where the sole evidence concerning an accused with the commission of an offence is that of a handwriting expert, precaution should be taken to remove the possibility of error.”</p> <p> </p> <p> </p> <p> </p> <p>It is trite that in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion and simply adopt it without questioning or testing it against known parameters.  </p> <p> </p> <p>                        In <em>S v Zuma</em> 2006 (2) SACR 257, 263 the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court’s own capabilities and responsibilities in drawing inferences from the evidence. </p> <p> </p> <p>In <em>casu</em>, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent’s signature. For that reason the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.</p> <p> </p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>In light of the above findings, I am of the view that the appeal lacks merit and therefore ought to be dismissed with costs following the cause.</p> <p> </p> <p> </p> <p>In the result, it is ordered that the appeal be and is hereby dismissed with costs.</p> <p> </p> <p> </p> <p><strong>GARWE JA                    :           </strong>I agree</p> <p> </p> <p><strong>GOWORA JA                :           </strong>I agree</p> <p>  </p> <p><em>Mawire J. T &amp; Associates</em>, applicant’s legal practitioner</p> <p><em>Gama &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/30/2019-zwsc-30.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41736">2019-zwsc-30.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/30/2019-zwsc-30.pdf" type="application/pdf; length=224903">2019-zwsc-30.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence">evidence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-evidence">Civil matter (EVIDENCE)</a></li></ul></span> Mon, 10 Jun 2019 07:30:35 +0000 admin 9310 at https://old.zimlii.org Zimondi v Secretary Public Service Commission & 3 Others (HMT 2-19, HC 62/18) [2019] ZWMTHC 2 (24 January 2019); https://old.zimlii.org/zw/judgment/mutare-high-court/2019/2 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>RUBEN ZIMONDI                                                                APPLICANT</p> <p> </p> <p>versus</p> <p> </p> <p>THE SECRETARY PUBLIC SERVICE COMMISSION    1ST RESPONDENT</p> <p>and</p> <p>GENERAL COMMISSIONER OF THE PRISONS             2ND RESPONDENT</p> <p>AND CORRECTIONAL SERVICE</p> <p>and</p> <p>THE MINISTER OF JUSTICE, LEGAL AND                     3RD RESPONDENT</p> <p>PARLIAMENTARY AFFAIRS</p> <p>and</p> <p>HIS EXCELLENCY THE PRESIDENT OF                         4TH RESPONDENT</p> <p>ZIMBABWE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>MUTARE, 24 January 2019</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p> </p> <p><em>A Mutungura</em>, for the applicant</p> <p><em>T Mutomba</em>, for the respondent</p> <p> </p> <p> </p> <p>MUZENDA J: On the 4th July 2018 the applicant (Ruben Zimondi) filed an application seeking the following relief:</p> <p> </p> <p>“IT IS ORDERED THAT:</p> <ol> <li>It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.</li> <li>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.</li> <li>The respondents to pay costs of suit jointly and severally, the one paying the other to be absolved.”</li> </ol> <p> </p> <p> </p> <p><strong>Facts </strong></p> <p>On or about December 2014, the applicant was charged with contravening s 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 uttered despicable words against the first lady Dr Grace Mugabe saying “<strong><em>Ma problems ese arikuitika mumusangano anokonzereswa nembwa inonzi Dr Grace Mugabe asi isu musangano tinouda</em></strong>.” This was against the discipline especially of a commissioned officer.</p> <p>The disciplinary hearing was conducted in January 2015 in terms of s 10 (1) and (11) of the aforesaid regulations. Applicant was found guilty and discharged from service. He filed an application for review to the Commissioner in terms of s 22 (1) of the Regulations. 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 s 22 (4). 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 applicant’s legal practitioners reads as follows:</p> <p> </p> <p>“<strong><em>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 s 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. </em></strong></p> <p> </p> <p><strong><em>This rests your case with us. Please be guided accordingly</em></strong>.”</p> <p> </p> <p>The applicant genuinely believes that the Public Service Commission has the jurisdiction to entertain the appeal made in terms of s 22 (4) of the 1984 Prison regulations. However up to now the 1st respondent has failed to hear the appeal hence this application.</p> <p>The application is opposed. In the opposing papers the 1st respondent raises a preliminary point premised upon the citation of 1st respondent. According to the respondents, the 1st 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 1st respondent does not deal with appeals in her official capacity and as such she is incorrectly cited.</p> <p>On the date of hearing the applicant argued that the point<em> in limine</em> was only raised in the opposing affidavit and was not pursued further in 1st respondent’s heads. The 1st respondent admitted that but submitted that a point <em>in limine</em> as a question of law can be raised at any time during the hearing of the application. The applicant had urged the Court to regard the point in limine as having been abandoned which argument was opposed by the 1st respondent. I am with the 1st respondent on this aspect and I ruled that the point <em>in limine</em> was indeed a legal point which can be raised at any stage during the application. I allowed the 1st respondent to address the court on the preliminary point. My view was that if the point <em>in limine</em> was upheld, it will definitely be capable of disposing of the application.</p> <p>Mr <em>Mutomba</em> for the 1st respondent submitted that the improper citation of a party renders the application void. Mr <em>Mutomba</em> cited the matter of <em>Matida v Chairman, PSC and Anor</em> 1998 (1) ZLR 507 (H) Adam j at p 509 G-F had this to say relating to the citation:</p> <p> </p> <p>“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 <em>Maxwebo v Chairman, Public Service Commission</em> HH 125-97 at p 6-7 where smith j said:</p> <p> </p> <p>‘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. S 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.’ ”</p> <p>           </p> <p>In the case of <em>City Bolts (Pvt) Ltd v Workers Committee</em> SC 16/2012, garwe ja on p.1</p> <p>of the cyclostyled judgment ruled as follows:</p> <p> </p> <p>“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.”</p> <p> </p> <p> </p> <p>The applicant improperly cited the Secretary as the 1st 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<em> limine</em> is upheld and the application is dismissed with costs.</p> <p>It is so ordered.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Mutungura &amp; Partners</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/2/2019-zwmthc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28101">2019-zwmthc-2.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/2/2019-zwmthc-2.pdf" type="application/pdf; length=165902">2019-zwmthc-2.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal">dismissal</a></li></ul></span> Mon, 18 Feb 2019 10:36:55 +0000 admin 9268 at https://old.zimlii.org Vutete v Chairperson of the Appeals Committee (ZOU) & Another (HH 257-18, HC 93/18) [2018] ZWHHC 257 (15 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/257 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>CLEVER VUTETE</p> <p>versus</p> <p>CHAIRPERSON OF THE APPEALS COMMITTEE</p> <p>(ZIMBABWE OPEN UNIVERSITY)</p> <p>and</p> <p>ZIMBABWE OPEN UNIVERSITY</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUNANGATI-MANONGWA J</p> <p>HARARE, 15 May 2018</p> <p> </p> <p> </p> <p><strong>Opposed Matter</strong></p> <p> </p> <p> </p> <p>Mr<em> N Mugiya</em>, for the applicant</p> <p>Mr <em>A K Maguchu</em>, for the 1st respondent</p> <p> </p> <p>            MUNANGATI-MANONGWA J: The applicant herein was employed by the second respondent Zimbabwe Open University and was discharged for violating the second respondent’s Code of Conduct. He appealed against the decision of the disciplinary committee. The appellate body failed to inform applicant of the outcome of the appeal within the period provided in the Code of Conduct. Applicant is claiming a violation of his rights as enshrined in s 69 of the constitution due to the employer’s failure to adhere to its own Code of Conduct. For that he seeks a declaratory order for the following relief.</p> <p>It is ordered that</p> <ol> <li>The 1st and 2nd respondents’ failure to process and deal with the applicant’s appeal in terms of the 2nd respondent’s Code of Conduct be declared unlawful and wrongful.</li> <li>The subsequent discharge of the applicant by the respondents be and is hereby declared to be unlawful and wrongful.</li> <li>The disciplinary proceedings against the applicant by the respondents on the basis of the obtaining allegations be and are hereby stayed permanently.</li> <li>The 1st and 2nd respondents are ordered to pay costs of suit on a client-attorney scale, jointly and severally, one paying the other to be absolved.</li> </ol> <p>The application is opposed.</p> <p>The applicant raised a point <em>in limine </em>at the hearing that there is no opposition before the</p> <p>court. Mr <em>Mugiya </em>for the applicant submitted that there was no proper opposition before the court as the deponent of the opposing affidavit did not state which of the two respondents he was representing and whence from he derives his authority. He argued that merely stating that he was employed as a Human Resources Manager by the second respondent was not sufficient.</p> <p>            Mr <em>Maguchu </em>in response conceded that whilst the opposing affidavit could have been better drafted, it is apparent that the deponent Mr Mutaviri was deposing to the opposing affidavit on behalf of the respondents. The applicants had not provided any evidence indicating that the deponent was on a frolic of his own.</p> <p>            I find that the opposition should be read together with the notice of opposition. The filed notice indicates that the opposing affidavit is filed on behalf of the respondents by the respondents’ legal practitioners.</p> <p>            That the deponent alleges that he is employed by the second respondent as Human Resources Manager, and that he purports to know the facts of the matter, and this being a labour related matter, I have no doubt that the respondents would in fact repose authority in the deponent. Further, the respondents provided the authority although it then came as an attachment to the heads of argument. In my view there was/is no prejudice suffered by the applicants. I find that there is no merit in the point raised as what is crucial is that the deponent is deposing to what is in his personal knowledge. Accordingly the point is dismissed.</p> <p>            It is not denied that the decision of the appeals committee was not timeously availed to the applicant. The failure by the respondents to adhere to time lines provided by their code in peremptory terms becomes unlawful. The pertinent question becomes what is the effect of the delay.</p> <p>            Does the delay entitle the applicant to reinstatement or conversely does the delay render the applicant’s discharge wrongful and unlawful. Further does the delay justify the relief sought by the applicant to have the court declare the allegations stayed permanently.</p> <p>            I identify with Mr <em>Maguchu</em> (counsel for respondents’)’s argument that the appeals committee failed to determine the appeal timeously does not render their decision wrong. This position finds support in the sentiments by Gillespie J in <em>Nyoni</em> v <em>Secretary to Public Service Labour &amp; Social Welfare &amp; Another</em> 1997 (2) ZLR 516 (H) at 523 A-B which I find compelling</p> <p>            “an employee validly suspended does not, because of delay alone, became entitled to       reinstatement nor to reversal on review of a subsequent dismissal. Instead, they (the parties) each       have available to them the remedy of mandamus to enforce due compliance with that which is timeous.”</p> <p> </p> <p>             Thus, failure to comply with a code of conduct by way of delays in this case where applicant’s appeal had to be determined within 14 days does not result in reinstatement. The delay in the hearing of the appeal did not in any way render the initial decision of discharge invalid. The delay pertained to deliberations on the correctness of the decision. Given that situation, a <em>mandamus</em> would be the appropriate legal remedy. This would entail instituting proceedings to compel the employer or the committee concerned to comply with the times provided in the code.</p> <p>            Whilst it is appreciated that the applicant suffered inconvenience necessitated by the delay in availing the outcome of the appeal, that does not have the effect of nullifying the verdict of the initial disciplinary hearing nor the findings of the appeals committee.</p> <p>            Further, the fact that applicant is no longer employed or was discharged does not lie in the delay in the appeal proceedings but arises out of being found guilty of violating the code of conduct. It is borne by considerations of the merits of the case.</p> <p>            The case of <em>Air Zimbabwe</em> <em>(Pvt) Ltd</em> v <em>Mnensa &amp; Another</em> SC 89/04 is instructive. CHIDYAUSIKU CJ (as he then was) stated:</p> <p>“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.”</p> <p>           </p> <p>It is clear to me that applicant seeks to be exonerated not so much out of the belief of innocence but rather squarely on the basis of the delay. Whilst failure to adhere to time lines provided in codes of conduct should not be condoned due to the ramifications this may have on a person’s rights, the effect of the delay on appeal in this matter can never be interpreted to have invalidated the proceedings that led to applicant’s conviction.</p> <p>            Since the application succeeded partially in so far as declaring first and second respondent’s failure to deal with applicant’s appeal timeously declared unlawful, applicant is entitled to 50% of his costs. The rest of the relief sought is denied.</p> <p>            Accordingly it is ordered as follows:</p> <ol> <li>The 1st and 2nd respondents’ failure to process and deal with the applicant’s appeal in terms of the 2nd respondent’s Code of Conduct is declaredwrongful and unlawful.</li> <li>The relief sought in clauses 2-4 of the draft order is dismissed.</li> <li>1st and 2nd defendants to pay 50% of Applicant's costs jointly and severally the one paying the other to be absolved.</li> </ol> <p> </p> <p><em>Mugiya &amp; Macharaga</em>, applicant’s legal practitioners</p> <p>           </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/257/2018-zwhhc-257.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20645">2018-zwhhc-257.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/257/2018-zwhhc-257.pdf" type="application/pdf; length=119815">2018-zwhhc-257.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-code-conduct">Appeal code of conduct</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li></ul></span> Mon, 25 Jun 2018 07:41:43 +0000 admin 8938 at https://old.zimlii.org Ex Constable Shoko 069995F v The Commissioner General of Police & 2 Others (HH120-18, HC 7788/15) [2018] ZWHHC 120 (28 February 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/120 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>EX CONSTABLE SHOKO 069995F</p> <p>versus</p> <p>THE COMMISSIONER GENERAL OF POLICE</p> <p>and</p> <p>THE CHAIRMAN OF THE POLICE SERVICE COMMISSION</p> <p>and</p> <p>THE MINISTER OF HOME AFFAIRS</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAKONI J</p> <p>HARARE, 2 February 2017 and 28 February 2018</p> <p><strong>Opposed Matter</strong></p> <p><em>N. Mugiya</em>, for the applicant</p> <p><em>J. Mumbengegwi</em>, for the respondents</p> <p>            MAKONI J: The applicant approached this court seeking a declarator in the following terms:</p> <p>That,</p> <ol> <li>The discharge of the applicant from the Zimbabwe Republic Police by the first and second respondents be and is hereby declared unlawful and wrongful.</li> <li>The first and second respondents are ordered to reinstate the applicant with full benefits from the date of discharge to the date of reinstatement.</li> <li>The respondents are ordered to pay costs of suit.</li> </ol> <p>            The background of the matter is that the applicant, an ex-police officer was convicted of contravening s 174 (1) (a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] at Harare Magistrates Court on 7 March 2013. The applicant was sentenced to 4 months imprisonment which was suspended on condition that applicant performs 140 hours of Community Service at Kuwadzana Polyclinic. The first respondent, acting in terms of section 48 of the Police Act [<em>Chapter 11:10</em>] 2001 (the Act), discharged the applicant. The applicant, dissatisfied with the discharge, filed an appeal to the second respondent. Whilst awaiting the determination of appeal, the applicant was reinstated into the Police Service. The second respondent eventually dismissed the appeal. The applicant then filed the present application seeking a declarator that his discharge from the Zimbabwe Republic Police by the first and second respondents was unlawful and wrongful.</p> <p>            The applicant avers that he was not furnished with the reasons why he was discharged. He further avers that if he was discharged in terms of the Act, then the procedure was grossly irregular as he had been charged in terms of the criminal law. If he was discharged in terms of s 48 of the Act, the process would have been irregular as the section is vague and ambiguous in relation to how one should be discharged in view of the provisions of s 68 (2) of the Constitution.</p> <p>      He concludes his Founding Affidavit by stating in para 11:</p> <p>“It is apparent that my discharge from the Zimbabwe Police by the respondents was grossly irregular and the discharge is therefore incompetent and ought to be rescinded or declared unlawful and wrongful.”</p> <p>            The respondents averred that the applicant was discharged from the Police force in terms of s 48 of the Act after he had been convicted of contravening s 174 (1) (a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] and sentenced to four months imprisonment which was wholly suspended on condition he performed community service. He appealed to the second respondent and was reinstated pending the determination of the appeal. He was then summarily dismissed in terms of s 48 of the Act, when his appeal was determined. Thereafter he could not be located so that he could be furnished with the reasons. He never requested for reasons of his discharge.</p> <p>      The respondents further averred that criminal proceedings are not a bar to disciplinary proceedings.</p> <p>      Most of what the applicant avers in its founding affidavit and heads of argument are merely grounds for review. In para 9 of his founding affidavit he states:</p> <p>“9. Assuming that the Respondents discharged me for the conviction in terms of the Police Act, that would be irregular in that since l had been charged in terms of the ordinary law, l could not at law be charged in terms of the Police Act on the same conduct. <strong>That will be grossly irregular</strong>. (my emphasis)</p> <p>The learned authors Herbstein &amp; van Winsen in <em>Civil Practice of the Supreme Court of South Africa</em> 5 ed p 1271 explains a review as: </p> <p>“Where, however the real grievance is against the method of the trial, it is proper to bring the case on review… The essential question in review proceedings is not the correctness of the decision under review, but its validity.”</p> <p>            In <em>Kwete </em>v <em>Africa Community Publishing and Development Trust and Ors </em>HH 226/98 at p 3 of the cyclostyled judgement Honourable Smith J had this to say:</p> <p>“It seems to me anomalous that one should be permitted to file an application for review well out of time, without seeking condonation as long as a declaratory order is sought. A declaratory order is after all merely one species of relief available on review, one can imagine the case of a litigant who institutes an application for review and reinstatement well out of time. He applies for condonation which is refused. All then he has to do is to institute a fresh application for review, but instead of seeking reinstatement, he wants a declaratory order. Should he be able to get round the provisions of order 33 of the High Court Rules 1971 that easily? I think not.”</p> <p>In <em>Thokozani Khupe</em> v <em>The Officer in Charge Law and Order Bulawayo Central Police Station and 2 Others</em> HB 15/05 NDOU J had this to say:</p> <p>“Although couched as a declarator, this latter prayer is one for review. What the applicant seeks is that l review the decision of the second respondent that “the police have to be notified of all meetings by politicians, be they public or private.” That being the case, the provisions of Rule 259 of the High Court Rules apply. A declaratory order is, in any event, merely one of the species of relief available and the applicant should not be able to get around the time limits for review proceedings by instituting proceedings for a declaratory order.”</p> <p>As correctly submitted by the respondent, what comes out of the founding affidavit, is that the applicant is aggrieved by the procedure which was adopted in discharging him in terms of s 48 of the Act. In para 2 of his Draft Order, he therefore seeks re-instatement. Clearly what the applicant seeks is a review which he filed clothed as a declaratur to get round the time limits for review. This cannot be countenanced.</p> <p>The applicant avers that he suffered double jeopardy in that he was subjected to a trial both in a Magistrates court and before the court of a single officer regarding the same matter. His contention that disciplinary proceedings and criminal proceedings are not independent is unmeritorious. The law is clear on this. Section 278 of the Criminal Law Codification and Reform [<em>Chapter 9:23</em>] provides:</p> <p>“<strong>278 Relation of criminal to civil or disciplinary proceedings</strong></p> <p>(2) A conviction or acquittal in respect of any crime shall not bar civil or disciplinary proceedings in relation to any conduct constituting the crime at the instance of any person who has suffered loss or injury in consequence of the conduct or at the instance of the relevant disciplinary authority, as the case may be.”</p> <p>            From the above it is clear that a criminal conviction is not a bar to disciplinary hearing. If one is convicted of an offence he or she can still undergo disciplinary proceedings.</p> <p>            The other concern of the applicant is that he was not furnished with reasons for his discharge. What is clear from the papers is that he never requested for the reasons. The respondents’ explanation that they could not locate the applicant after the dismissal of his appeal is reasonable. In any event, there are procedures that are available to the applicant in terms of the Administrative Justice Act [<em>Chapter 10:28</em>], where someone has not been furnished with reasons for an adverse decision made against him, by an administrative authority.</p> <p>“<strong>48 Procedure on conviction of member for certain offences</strong></p> <p>If a member, other than an officer, is convicted of any offence and sentenced therefor to imprisonment without the option of a fine, whether or not the execution of such sentence is suspended, the Commissioner may-</p> <p> (a) discharge the member, in which case the discharge may take effect from the date of his conviction; or</p> <p>(b) impose any one or more of the following penalties-</p> <p>(i) reduction in rank;</p> <p> (ii) loss of seniority;</p> <p>(iii) withholding of an increment of salary; or</p> <p> (c) reprimand the member.”</p> <p>In <em>Reginald Mapika </em>v <em>Chairman of Police Service Commission and Others </em>HB 56/13 CHEDA AJ had this to say on s 48 of the Police Act:</p> <p>“Section 48 deals with a “member” while s 49 deals with an “officer”... I do not understand this section (s 48) to grant a member the same rights as an officer, who, under s  49, is subject to an inquiry in terms of the Commission of Inquiry Act… The applicant in this case is a member, not an officer. The Commissioner was within his right to discharge him from the force.”</p> <p>            It is clear from the above that from whichever angle you look at the matter, the applicant cannot succeed.</p> <p>Accordingly, the application is dismissed with costs.</p> <p><em>Mugiya and Macharaga, </em>applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office, </em>respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/120/2018-zwhhc-120.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23588">2018-zwhhc-120.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/120/2018-zwhhc-120.pdf" type="application/pdf; length=174138">2018-zwhhc-120.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fair-hearing">Fair hearing</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal">dismissal</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2013/56">Mapika v Chairman of Police Service Commission &amp; Others (HCR 3245/12) [2013] ZWBHC 56 (06 March 2013);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1995/2">Police Act [Chapter 11:10]</a></div><div class="field-item even"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Tue, 15 May 2018 08:09:26 +0000 admin 8788 at https://old.zimlii.org Matawu v Minister of Local Government, public works and national housing (HB 68-18, HC 1380/16) [2018] ZWBHC 68 (15 March 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/68 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>DANIEL MATAWU</p> <p><strong>versus</strong></p> <p>MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS</p> <p>AND NATIONAL HOUSING</p> <p>and</p> <p>CITY OF GWERU</p> <p>and</p> <p>T. MHANGAMI</p> <p>and</p> <p>C PARENYI</p> <p>and</p> <p>M CHOGA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MATHONSI J</p> <p>BULAWAYO 7 MARCH 2018 AND 15 MARCH 2018</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>R Chidawanyika</em> with <em>R Ndlovu</em> for the applicant</p> <p><em>M Jaravani</em> for the respondents</p> <p> </p> <p> </p> <p>            <strong>MATHONSI J:</strong>          The applicant is the town clerk for the City of Gweru who was suspended from office by the third respondent in his capacity as the chairperson of a three member commission appointed by the first respondent to run the affairs of the City of Gweru on 15 January 2016 and had an array of misconduct charges preferred against him.  Disciplinary proceedings were commenced before a disciplinary committee put in place by the commission.  He has brought this application before this court seeking a declaratur <em>inter alia</em> that the appointment of a commission and the extension of its terms of office beyond the period of its three months life span was a nullity and that administrative actions taken by the commission including the applicant’s suspension and the disciplinary proceedings set in motion were also a nullity.</p> <p>            Under normal circumstances the City of Gweru is run by a full complement of eighteen elected councilors representing wards from where they are elected.  For some reason, the first respondent took the unusual decision to suspend all the councilors on 12 August 2015 triggering protracted litigation which played out in this court and when this court finally reversed the suspensions of the councilors by judgment delivered on 22 February 2016 in HC 2371/15 the first respondent escalated the dispute taking the matter on appeal to the Supreme Court in SC 148/16.  Meanwhile the City of Gweru was left with no council to run its affairs although two councilors were later brought back to the fold.  That development was unhelpful as the two obviously did not form a quorum.</p> <p>            By letter dated 14 August 2015, the first respondent appointed the third, fourth and fifth respondents as a caretaker commission to run the affairs of the City.  The letter reads:</p> <p>            “RE: APPOINTMENT OF CARETAKERS FOR CITY OF GWERU</p> <p>Reference is made to the afore-cited subjected (<em>sic).</em>  Following suspension of all the councilors for the City (of) Gweru on 12 August 2015 I found it expedient in terms of section 80 (1) of the Urban Councils Act [Chapter 29:15] to put in place necessary administrative arrangements for the purpose of ensuring that the operations of council continue.  I therefore appoint you as caretakers for the Gweru City Council and Mr T Mhangami shall be the Chairperson.  As caretaker, you shall exercise all the functions of the council provided that you shall not without approval of the Minister exercise any power conferred on the council to levy rates or taxes or by the council to fix any new charge.  You shall hold the office until there are councilors in place.   All the expenses pertaining to your travel, subsistence, allowances and work shall be met by Gweru City Council.  You are advised to make use of the resident provincial skills and expertise especially in areas of Health, Water and Sanitation, Environmental Management and any other matter you deem necessary as council.</p> <p> </p> <p>            Hon S. Kasukuwere [M.P]</p> <p>            Minister of Local Government,</p> <p>            Public Works and National Housing.”</p> <p>            (The underlining is mine)</p> <p> </p> <p>            The assumption of office by the caretaker commission must have commenced from a wrong footing because surely such a commission could not have a blank cheque, as it were, to “hold office until there are councilors in place” as that was an indeterminable period.  It actually explains the glaring mistakes which both the Minister and the committee later made having proceeded from a wrong premise altogether right from the beginning.  I say so because section 80 in terms of which the Minister appointed the commission makes it clear that there are limitations to the term of office of caretakers so appointed.</p> <p>            In terms of section 80:</p> <p>            “80      Minister may appoint caretakers to act as council</p> <ol> <li>If at anytime—</li> </ol> <ul> <li>there are no elected councilors for a council area; or</li> <li>all the elected councilors for a council area have been suspended or imprisoned or are otherwise unable to exercise all or some of their functions as councilors;</li> </ul> <p>the Minister may appoint not more than three persons as caretakers, whether or not such persons are qualified through residence or ownership of property to become councilors, to act as the council in accordance with this section.</p> <ol> <li> </li> <li>A caretaker appointed in terms of subsection (1) shall hold office during the pleasure of the Minister, but his or her office shall terminate—</li> </ol> <ul> <li>as soon as there are any councilors for the council area who are able to exercise all their functions as councilors; or</li> <li>ninety days after the date of his or her appointment; whichever occurs sooner.</li> </ul> <p>Provided that if the period of ninety days expires within three months before the date of the next succeeding general election, the caretaker shall continue to hold office until such general election.”</p> <p> </p> <p>            To the extent that the caretakers were appointed on 14 August 2015 and no general election was due until later in 2018 the term of office of the caretakers expired, by peremptory statutory necessity, at the end of ninety days from that date which is 13 November 2015.  It is common cause that when the ninety days expired the Minister remained silent and so were the caretakers.  They continued in office as if nothing had happened.</p> <p>            It was during the time that they held office illegally that the applicant says he was suspended from office of town clerk by letter written by the third respondent on 15 January 2016.  The third respondent wrote the suspension letter in his capacity as “Commission/Caretaker Council Chairman,” acting in terms of section 139 (3) of the Urban Councils Act.  He complained about management failures in supervising projects among other issues.  On 26 January 2016 the third respondent struck again, this time formulating a host of misconduct charges running into ten pages against the applicant in a letter addressed to him on that date.   At the same time he wrote another letter to the applicant inviting him to attend a disciplinary hearing on 3 February 2016 before a four member disciplinary committee chaired by Moffat Ndlovu. </p> <p>            The applicant says that after a false start, the disciplinary hearing finally got underway on 25 April 2016 at which he raised the preliminary point that the caretaker commission had no lawful mandate to hold office at the time they purported to suspend him and to put in place a disciplinary committee to try him of misconduct charges.  Not only was his suspension a nullity, so were the charges preferred by an illegal commission.  The applicant says that after taking the preliminary submissions the disciplinary committee adjourned until 27 April 2016 to consider the submissions only to return on that date with a letter written to the caretaker commission by the first respondent on 16 March 2016 to wit:</p> <p>            “RE: AFFIRMATION OF CARETAKERS FOR GWERU CITY COUNCIL</p> <p> </p> <p>Reference is made to your appointment letters dated 14 August 2015.  Please note that there is currently no functional council in place for Gweru City Council.  In light of this your services as caretakers are still required until there is a fully functional council in place.  This letter further serves as a confirmation of your continuing status as caretakers for Gweru City Council.</p> <p> </p> <p>            Thank you</p> <p>            Hon S Kasukuwere [M.P]</p> <p>            Minister of Local Government, Public</p> <p>            Works and national Housing.”</p> <p> </p> <p>            If ever there was an exercise in futility, this takes the honours.  The Minister appeared to realize for the first time more than four months after the caretaker commission’s tenure had expired that there was need to legitimize their continued stay in office.  Even as it dawned to him that the caretakers could not hold office indefinitely the prescribed solution raised more questions than answers.  If the letter of 16 March 2016 was written upon a realization that the commission’s tenure had expired after ninety days of its assumption of duty, what was to happen to the period of more than four months during which it held office before the term was extended or made to continue?  Could the letter clothe the commission with legality in retrospect?  What then would become of the administrative actions taken by the commission subsequent to the expiry of its term and prior to the magical letter of 16 March 2016.  That letter left the commission not only <em>in limbo</em> but very high and dry.  It was no solution at all.</p> <p>            The applicant would have none of it.  He stated that there is nothing in the law which allows a caretaker commission to operate outside the maximum period of ninety days prescribed by section 80 (3) of the Act.  By equal measure there is nothing in the law empowering the Minister to extend the life-span of a caretaker commission which has run its course.  Worse still to renew its life four months after it expired could not be done.  Apart from that the caretakers could not charge him on the basis of an audit report compiled for the Minister because by doing so they purported to exercise power which they did not have.  As such his constitutional rights enshrined in sections 56 (b), 65, 68 and 69 are being violated.</p> <p>            The application is opposed by all the respondents. In his opposing affidavit sworn to on behalf of the first respondent George Sifihlapi Mlilo, the Permanent Secretary in the Ministry stated that the “re-appointment” of the caretakers was appropriate in the circumstances in order to fill a gap left by the suspended councilors.  This is because the only two councilors available did not constitute a quorum.  The suspension of the applicant was “a valid act.”  I must say that no attempt is made by the first respondent to point to any law by which such a “reappointment” is permitted.</p> <p>            The rest of the respondents also opposed the application on the basis of necessity.  The caretakers continued to run the affairs of council because there were no adequate councilors to do so.  The third respondent also took the view that the application raises issues of a labour nature.  For that reason this court’s jurisdiction is specifically ousted by section 89 (6) of the Labour Act [Chapter 28:01] which allows only the Labour Court to deal with such matters. I should eliminate that argument at once because it is glaringly lacking in merit.</p> <p>            There can be no doubt that what the applicant seeks is a declaratur.  Only this court has jurisdiction in terms of section 14 of the High Court Act [Chapter 7:06] to issue a declaratur in its discretion.  The section provides that this court may, at the instance of an interested party inquire into and determine any existing, future or contingency right or obligation. The Labour Court does not have such jurisdiction.  In any event, section 4 (1) of the Administrative Justice Act [Chapter 10:28] allows a party who is aggrieved by the failure of an administrative body to act lawfully, reasonably and in a fair manner to seek recourse in the High Court.  Therefore this court’s jurisdiction cannot be said to be ousted in the circumstances.</p> <p>            The issues to be decided in this matter are fairly straight forward.  They are whether the Minister is still entitled to appoint a caretaker commission to run the affairs of a municipality.  If he or she is, whether once the term of office of such commission has expired, the Minister may extend its term for an indefinite period.  If the answers to those two questions are in the negative, whether the applicant’s suspension from the post of town clerk by the chairperson of the caretaker commission was valid and, by extension, whether the institution of disciplinary proceedings against the applicant by the caretaker commission was valid in the circumstances.</p> <p>            Mr <em>Chidawanyika</em> for the applicant submitted that for the first respondent to appoint a caretaker council to manage the affairs of the second respondent he can only do so if there is a law empowering him to. I agree.  This derives from the principle that in any constitutional democracy, those who exercise public power are constrained to exercise only those powers and to perform only those functions conferred upon them by the law.  That is what the rule of law is all about.  A public official cannot be allowed to act on a whim or to wield power which he or she does not have and then make appointments derived from nowhere.  It would be illegal and completely unacceptable.  See <em>Masetlha</em> v <em>President of the Republic of South Africa and Another</em> 2008 (1) SA 566.</p> <p>            <em>Mr Chidawanyika</em> submitted further that in terms of the 2013 constitution there is no longer any room for the appointment of caretaker councils by the Minister responsible for local authorities.  For that reason the first respondent had no power to appoint the caretaker commission in the first place especially as section 274 of the constitution envinces only elected people running the affairs of local authorities.  I have no doubt that the spirit and letter of the constitution is that elected councilors, and other officials must run councils as opposed to the imposition of individuals to superintend over councils which tends to take away the prerogative of citizens to elect those of their choosing to run their affairs.</p> <p>            However there is nothing in the constitution, in particular chapter 14 thereof dealing with Provincial and Local Government, which renders section 80 of the Urban Councils Act unconstitutional. I am mindful as well of the fact that section 278 (2) of the Constitution permits the appointment of an independent tribunal to exercise the function of removing from office mayors, chairpersons and councilors on the grounds of inability to perform the functions of their office, gross incompetence, gross misconduct, conviction of an offence involving dishonesty or willful violation of the law.  If councilors can be removed from office at any time on those grounds, surely it was anticipated that there may come a time when councilors are unable to run the affairs of the local authority when removal has dissipated the quorum.</p> <p>            It is in that regard that section 80 of the Act sets in to allow for the appointment by the Minister of caretakers with a very limited life-span.  The law giver must have envisaged that scenario as occurred in this particular case but because the constitution is the cornerstone, the Minister’s appointing authority is restricted to putting in place caretakers to endure for only ninety days.  I therefore reject Mr <em>Chidawanyika</em>’s argument that such appointment is unconstitutional.</p> <p>            What then is the implication of the ninety days tenure on the activities of the caretaker commission?  Mr <em>Musika</em> for the first respondent did not attempt to dispute that the Minister could only put in place caretakers for ninety days.  Instead he sought to justify the continued existence of the caretaker commission beyond the statutory ninety days by submitting that it was borne out of necessity.  <em>Mr Jaravani</em> took the point further by arguing on the basis of public policy that if this court were to declare the activities of the caretaker council beyond ninety days illegal, that would open flood gates in which more people affected by the decisions taken by the caretakers after ninety days may come forward to litigate against the City of Gweru.  He added that the decision was taken by a hybrid council consisting of two elected councilors and three caretakers.</p> <p>            Not that the involvement of the two elected councilors would make any difference to the legality of those decisions.  I have said that the full council comprises of eighteen elected councilors.  In terms of section 84 (2) (b) of the Act all questions coming or arising before a meeting are decided by a resolution passed by a majority of votes cast.  Section 85 provides that one-third of the total membership of a council, together with one other councilor, shall form a quorum at a meeting of the council.  No matter how one wants to play with mathematics two councilors cannot constitute a quorum.  I am not sure whether it is competent to mix elected councilors with caretakers.  Even if it was the five of them would still not form a quorum and therefore the decision taken by such an assemblage cannot be valid.</p> <p>            But then all that is purely academic because the validity of decisions and actions taken by the caretaker commission is predicated upon its being lawfully in office.  If the commission was illegally operating it could not possibly make valid decisions.  In my view it is not for nothing that the Minister is empowered to constitute a caretaker commission to hold office for a limited period of ninety days.  In fact that provision in section 80 of the Act is of peremptory application.</p> <p>            By clear and quite unambiguous language the law giver allowed for a caretaker commission of ninety days duration.  The first respondent ignored that provision completely even in his letter of appointment when he appointed the caretakers to hold office until there are councilors in place.  In doing so he was acting outside the appointing powers conferred upon him by the enabling section 80.  Whatever terms of appointment he cobbled together for the commission they could only be valid to the extent that they fell within the confines of the Act.  Therefore the moment the ninety day period expired the commission ceased to hold office lawfully.  When it purported to suspend the applicant and to discipline him from 16 January 2016 the commission was engaging in a very futile exercise because it possessed no such authority.</p> <p>            In <em>Muchakata</em> v <em>Netherburn Mine</em> 1996 (1) ZLR 153 (S) at 157 B-C KORSAH JA referred to the seminal remarks of LORD DENNING MR when he said:</p> <p>“If the order was <em>void ab initio</em> it was void at all times and for all purposes.  It does not matter when and by whom the issue of its validity is raised; nothing can depend on it.  As LORD DENNING MR so exquisitely put it in <em>Mac Foy</em> v <em>United Africa Co Ltd</em> [1961] 3 All ER 1169 at 1172I:</p> <p>‘If an act is void, then it is in law a nullity.  It is not only bad, but incurably bad --.  And every proceeding which is founded on it is also bad and incurably bad.  You cannot put something on nothing and expect it to stay there.  It will collapse.’”</p> <p> </p> <p>            Once the mandatory period expired the commission was, as I have said, an unlawful one.  The suspension made by an unlawful organization was sitting on nothing.  It was also a nullity and so was the appointment of a disciplinary committee to try the applicant.</p> <p>            Could the belated attempt at resuscitation by the first respondent by letter of 16 March 2016 change anything?  I do not think so.  In the first place there is nowhere in the Act where the first respondent is imbued with power to extend the life-span of a caretaker commission whose term has expired.  Secondly he could not purport to extend the term several months after it ended.  At best he could have tried to reappoint them but then there is no provision for reappointment either, in as much as there is no lawful means by which a term can be extended.</p> <p>            That was the reasoning of the Supreme Court in <em>City of Harare</em> v <em>Zvobgo</em> 2009 (1) ZLR 218 (S), a case decided when the Minister still had power to reappoint a commission whose term had expired, by virtue of the then section 80 (5) of the Act which has since been repealed and is no longer part of our law, the court ruled at 228 B –C that the Minister could not lawfully reappoint a commission whose legal tenure has expired as a way of avoiding the holding of elections.  The court also ruled that a commission that has exhausted its legal tenure cannot appoint or constitute a valid committee.  It is that principle which invalidates even the disciplinary proceedings before the committee appointed by the commission in the present matter.  See also <em>Stevenson</em> v <em>Minister of Local Government and Others</em> 2002 (1) ZLR 498 (S); <em>Zvobgo</em> v <em>City of Harare and another</em> 2005 (2) ZLR 164 (H).</p> <p>            I therefore come to the inescapable conclusion that the suspension was invalid.  I am not persuaded by Mr <em>Jaravani</em>’s argument that public policy demands that the decisions taken by the caretaker commission after it had exhausted its legal tenure should be upheld to save the Municipality from a floodgate of litigation.  Surely as a court of law, this court cannot be expected to turn a blind eye at a glaring illegality in order to cover up for those that either did not bother to check the law before acting or deliberately ignored the law and operated outside it.  This court cannot legitimize illegal activity for any reason including protecting a municipality that has been forced into an invidious position by the unlawful acts of the first respondent.  Indeed there can be no public policy considerations favouring illegality.</p> <p>            In the result, it is ordered that:</p> <p>1.         It is hereby declared that the term of office of the caretaker commission appointed by the first respondent to run the affairs of the second respondent expired ninety days from 14 August 2015, the date of its appointment, and that legal tenure could not be lawfully extended by the first respondent.</p> <p>2.         The suspension of the applicant from the office of town clerk by the third respondent by letter dated 15 January 2016 and the subsequent disciplinary action taken, including charging the applicant with acts of misconduct and the appointment of a tribunal to try the applicant, were all a nullity and of no legal effect.</p> <p>3.         The disciplinary proceedings presided over by a disciplinary tribunal set up by the 3rd, 4th and 5th respondents to hear the matter against the applicant are hereby set aside.</p> <p>4.         The 1st and 2nd respondents shall bear the costs of this application jointly and severally the one paying the other to be absolved.</p> <p> </p> <p><em>Chitere Chidawanyika and Partners</em>, applicant’s legal practitioners</p> <p><em>Civil Division, Attorney General’s Office</em>, 1st respondent’s legal practitioners</p> <p><em>Messrs Tawona &amp; Jaravani Attorneys</em>, 2nd -5th respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/68/2018-zwbhc-68.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32530">2018-zwbhc-68.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/68/2018-zwbhc-68.pdf" type="application/pdf; length=198135">2018-zwbhc-68.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal">dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urban-council-employees">urban council employees</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Wed, 09 May 2018 09:17:47 +0000 admin 8777 at https://old.zimlii.org UNIFREIGHT LIMITED v MADEMBO (SC 6/18, Civil Appeal SC 213/15) [2015] ZWSC 6 (31 July 2015); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2015/6-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE</strong><strong>   (13)</strong></p> <p> </p> <p><strong>UNIFREIGHT     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>LIGHTON     MADEMBO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA; GUVAVA JA &amp; MAVANGIRA JA</strong></p> <p><strong>HARARE: 31 JULY, 2015</strong></p> <p><em>A. Rukawo</em>, for the appellant</p> <p>N.S. <em>Chidzanga</em>, for the respondent</p> <p> </p> <p><strong>GUVAVA JA</strong>:    This is an appeal against a decision of the Labour Court judgment number LC/H/122/2012 dated 17 August 2012.   After hearing arguments from both counsel the appeal was dismissed with costs. It was indicated that the reasons for this decision would follow in due course. These are they.</p> <p>The brief facts which gave rise to this matter may be summarized as follows:</p> <p>The respondent was employed by the appellant as a truck driver. His duties included delivering bulk fuel to various service stations. On 8 September 2010 the respondent made a delivery to Cargill Chegutu.  Upon arrival at the premises he had a physical altercation with a local tout. The manager of Cargill reported the incident to the police and the tout was arrested. Upon being interviewed by the police, the tout made a statement claiming that on a previous occasion, the respondent stopped at an off-route location and offered to sell two “containers” of diesel to the tout for $60.00. The tout offered to pay $30.00 which the respondent rejected. The respondent denied the allegation and stated that he had in fact been robbed of a container of diesel by the tout.</p> <p>When the appellant was informed by the police on the allegations made by the tout it suspended the respondent from 15 September 2010 with pay until Monday 20 September 2010 whilst conducting investigations into the matter.  On 18 September 2010, the Contracts Supervisor wrote a report of the incident to the Personnel Manager of the appellant indicating that a report against the conduct of the respondent had been filed by Total Zimbabwe who is a customer of the appellant and to whom Cargill Chegutu is a client. The Contracts Supervisor, on the basis of this report, requested that the personnel department arrange for the respondent to be charged with misconduct arising from the incident.</p> <p>Following the above report the respondent was charged with the following acts of misconduct:</p> <ol> <li>Contravening Part III Section 3.3.5 as read with Part VII 7.3 Subsection 7.33 (d) of the Unifreight Group Code, that is, violent and disorderly behaviour.</li> <li>Contravening Part III Section 3.3.5 (ix) as read with Part VII, Section 7.4 subsection 7.4.4 (d) of the same Code of Conduct, that is any act or attempted act of dishonesty against the company or any of its customers whether a criminal conviction is pursued or not.</li> </ol> <p>The respondent was summoned to attend a disciplinary hearing scheduled to be held on 24 September 2010. The letter advised the respondent that he had the right to be represented by a workers committee member or fellow worker at the proceedings.</p> <p>At the hearing the respondent denied the charges and explained that on 25 August 2010 the tout had approached him and asked to buy fuel from him. He advised the tout that he did not sell fuel and he should buy it from a service station. He went on to ask this individual where he could buy affordable potatoes and he was directed to a place a few kilometres outside Chegutu. He admits that he went off route in search of these potatoes. When he pulled off the road, he crossed the road to buy the potatoes. As he was buying the potatoes he noticed a small truck with four men in it parked behind his truck. He stated that some of them disappeared behind his truck.  He crossed over to investigate and realized that they were syphoning diesel from his truck. He stated that a scuffle ensued but the men got away with some fuel. The respondent admitted that he did not report this incident as he reasoned that the fuel syphoned was negligible. The respondent explained that when he made the delivery on 8 September 2010 he recognized the tout as one of the four men involved in the incident of 25 August, 2010 and he decided to confront him.</p> <p>The disciplinary committee disbelieved the respondent and found him guilty as charged. It reasoned as follows:</p> <ol> <li>He failed to report the incident of 25 August 2010 which was found to be tantamount to contributing to fuel loss and or theft;</li> <li>The company suffered substantial prejudice by loss of business as a result of his violent and disorderly behavior as it lost the contract with Cargill.</li> <li>The respondent did not appear to show any remorse.</li> </ol> <p>The disciplinary committee decided that the appropriate penalty was to dismiss the respondent as a deterrent to any other would be perpetrators in their employ. He was dismissed with immediate effect on 24 September 2010. The respondent appealed this decision to the Executive Director of Personnel and Training on 28 September 2010. In his appeal he submitted that he was under the assumption that the hearing was merely a discussion and not a formal hearing. He stated that he queried why there were no representatives from the workers committee present during the hearing in accordance with their code. He informed the appeals committee that when he queried the anomaly he was advised that it was simply a discussion not a hearing. He stated that he was therefore surprised to receive a letter of termination of employment.</p> <p>The Executive Director of Personnel and Training analyzed the appeal and concluded that the determination of the committee could not be faulted. As to composition of the committee it was brought to his attention that the Works Council minutes of 23 September 2010 discussed the threat by the Logistics Workers Committee to boycott all disciplinary hearings on allegations that the employer was perpetually inclined to dismiss employees. This difficulty remained ongoing at the time the respondent’s hearing was held and the employer made the decision to proceed with hearings and not be held to ransom by the Workers Committee. The Executive Director also took into account that the respondent was informed of this predicament at the hearing and that he gave his consent to proceed. It was also noted that the letter calling the respondent to the hearing advised him that he would be well within his rights to attend with any other worker if he was so inclined. He was also advised that he could seek legal representation. Having taken note of all these factors the appeal was dismissed on 7 October 2010.</p> <p>                        Dissatisfied with the result, the respondent appealed to the Labour Court alleging gross procedural irregularities which he believed should result in the setting aside of the decision of the disciplinary hearings. He argued that:</p> <ol> <li>The employer failed to produce the record of proceedings</li> <li>That there was no evidence to support claims of the boycott members of the Workers Committee as alleged by the Executive Director, neither was there evidence to show that members of the Workers Committee were notified and invited to attend which invitation they declined</li> <li>In the absence of a representative of the Workers Committee the hearing was not properly constituted</li> <li>The hearing was not properly constituted as the Chairman was also the complainant and also served as the minute taker.</li> </ol> <p>The court <em>a quo</em> in its judgment was dissatisfied with the failure by the disciplinary committee to transcribe proper minutes and the double role performed by the Chairman which it held compromised his impartiality as he had to be both complainant and adjudicator. On this basis the court <em>a quo</em> ordered the remittal of the matter to be heard <em>de novo</em> by the disciplinary committee in a procedurally correct manner within thirty days of the order and, pending such hearing the respondent was to revert to “suspension with pay” basis.</p> <p>The appellant was aggrieved by the judgment of the court <em>a quo</em> and appealed against its decision on the following grounds:</p> <ol> <li>The Labour Court grossly misdirected itself on the facts in finding that there were gross procedural irregularities in the disciplinary proceedings</li> <li>The Labour Court erred in finding that by doubling up as complainant and Chairman, the impartiality of the Chairman became compromised when in fact the Chairman was never the complainant</li> <li>The Labour Court erred in finding that members of the disciplinary committee were also the investigating officials</li> <li>The Labour Court erred in finding that the Chairman’s assumption of the role of secretary was an irregularity in procedure nullifying the disciplinary hearing</li> <li>The Labour Court grossly misdirected itself in ruling that there was an irregularity in procedure because the workers representatives had not been asked to provide a secretary at the hearing when in fact the workers representatives had boycotted the disciplinary hearing</li> </ol> <p>In my view it is apparent from the above grounds of appeal that this appeal turns on one issue; that is, whether the procedural irregularities in the disciplinary hearing are so serious as to warrant the setting aside of the determination of the hearing committee.</p> <p>It cannot be denied that there were some irregularities during the disciplinary hearing. This is indeed accepted by the appellant. Although it is trite that not all irregularities result in the vitiating of disciplinary proceedings it must be shown that the irregularities resulted in prejudice. This point was well articulated in the case of <em>Nyahuma v Barclays Bank of Zimbabwe </em>SC 67/05 wherein the court held as follows:</p> <p>“…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.”</p> <p>In<em> casu</em>, it appears most of the procedural dictates of the Code governing the employment relationship between the parties were disregarded. There was a blatant disregard of the most basic of procedural requirements. No accurate minutes of the disciplinary hearing were kept by the appellant. The committee comprised of only two disciplinary officers, one of whom was the chairman and also posed questions raising the employers concerns. In essence, the Chairman’s role went beyond that of an inquisitorial authority and became a party to the proceedings.</p> <p>It is important to note that the Code that regulates the conduct between employer and employee operates as a contractual obligation which they both willingly entered into and is therefore binding. One of the parties cannot therefore arbitrarily, and to the prejudice of the other, decide not to comply with certain dictates of that contract.</p> <p>The double role undertaken by the Chairman as both chairman and complainant was in my view wholly inappropriate and not in line with the principles of natural justice. His impartiality could in these circumstances not be guaranteed. This is clearly apparent when one has regard to the accepted test for bias. The case of<em> City and Suburban Transport (Pvt) Ltd v Local Board Road Transportation Johannesburg </em>1932 WLD 100 sets out clearly the test for bias. It was held that:</p> <p>“the test [for bias] appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.” [My emphasis]</p> <p>This case makes it clear that the conduct of the appellant, in convening a hearing, must be transparent. Any reasonable person faced with the above facts would suspect that the chairman was biased. <em>In casu</em> the duplication of roles creates doubt with regard to impartiality in anyone’s mind and therefore a reasonable man could not find such an arrangement free from bias. The case of <em>Musarira v Anglo American Corporation</em> SC 53/05 states that once 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. The Chairman cannot therefore operate in an employer appointed role and remain impartial as the adjudicator in the hearing.</p> <p>The Code mandates that a representative of the Workers Committee be present at all hearings, for substantive and procedural fairness, a disciplinary hearing ought to be properly constituted. In the case of <em>Madzitauswa v ZFC Ltd &amp; Anor</em> SC 73/15, GOWORA JA stated that:</p> <p>“The definition of disciplinary committee clearly envisages a body in which both the employer and the employees are represented …</p> <p>In any event, this court has time after time emphasised the need for flexibility in the conduct of disciplinary proceedings in which the overriding principle is that disciplinary tribunals must conduct an enquiry.  The rules of natural justice require no more than that the domestic tribunal acts according to common sense precepts of fairness.  See <em>Dulys Holdings v Chanaiwa</em> 2007 (2) ZLR 1 at 6A-B.” [My emphasis]</p> <p>A disciplinary committee must be comprised of representatives of the employer and the employees. This was not the case during the respondent’s hearing. This case also recognizes that certain liberties can be taken in conducting hearings. However, such flexibility must not operate against the rights of the employee to a fair and procedurally just hearing.  (See also <em>Chataira v ZESA</em> HH9/2000).  In my view, the facts of this case show that the respondent was clearly prejudiced by the irregularities.</p> <p>The appellant also invited this Court to set aside the decision of the court <em>a quo</em>, which was based on findings of fact. It is trite that for an appellate court to interfere with the judgment of a court <em>a quo</em> based on factual findings gross misdirection must be alleged and established. The case of <em>Hama v National Railways of Zimbabwe</em> 1996(1) ZLR 664 (S) states in this regard as follows:</p> <p>“In other words, the decision must have been irrational, in the sense of being outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion.” [My emphasis]</p> <p>This cannot be said of the decision of the court <em>a quo. </em> It cannot be said that the court <em>a quo</em> erred. In fact, the court <em>a quo</em> correctly applied the principles in <em>Dalny Mine v Banda</em> 1999(1) ZLR 220 which states that:</p> <p><strong>“</strong>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:</p> <ul> <li>by remitting the matter for hearing <em>de novo</em> and in a procedurallycorrect manner;</li> <li>by the Tribunal hearing the evidence <em>de novo</em>.”</li> </ul> <p>                        It is the finding of this Court that the court <em>a quo</em> therefore correctly remitted the appeal back to the disciplinary committee.</p> <p>                        Accordingly it was for the above reasons that the court found against the appellant.</p> <p>                        <strong>GOWORA JA:                      </strong>I agree</p> <p><strong>MAVANGIRA JA:               </strong>I agree</p> <p><em>Gwaunza &amp; Mapota, </em>appellant’s legal practitioners</p> <p><em>Mangwana &amp; Partners, </em>respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2015/6/2015-zwsc-6.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=39760">2015-zwsc-6.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2015/6/2015-zwsc-6.pdf" type="application/pdf; length=202912">2015-zwsc-6.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rules">rules of</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal">dismissal</a></li></ul></span> Thu, 26 Apr 2018 07:57:00 +0000 admin 8760 at https://old.zimlii.org Ex-Constable Rwafa v The Chief Staff Officer & Another (HH 155-18, HC 12109/15) [2018] ZWHHC 155 (21 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/155 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>EX CONSTABLE RWAFA A 052885H</p> <p>versus</p> <p>THE CHIEF STAFF OFFICER</p> <p>(SENIOR ASCOM CHENGETA JC)</p> <p>and</p> <p>COMMISSIONER GENERAL OF POLICE N.O</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUREMBA J</p> <p>HARARE, 2 March 2018 &amp; 21 March 2018</p> <p> </p> <p> </p> <p><strong>Unopposed Application </strong></p> <p> </p> <p><em>N Mugiya</em>, for the applicant</p> <p> </p> <p>            MUREMBA J: The applicant was discharged from the Zimbabwe Republic Police on 30 December 2014 by the second respondent, the Commissioner General of Police in terms of the Police Act [<em>Chapter 11:10</em>] after having been declared a deserter. He received the notice of discharge on 20 January 2015. On 21 January 2015 he gave notice of his intention to appeal against the discharge to the Police Service Commission. On 23 January 2015 he duly filed his notice of appeal within the prescribed period. The applicant attached proof of all this.</p> <p>It is the applicant’s averment that in terms of s 51 of the Police Act, once he filed his appeal properly, the decision to discharge him was automatically stayed by operation of law and he should have been reinstated immediately. The provision reads,</p> <p><strong>“51 Appeal</strong></p> <p>A member who is aggrieved by any order made in terms of section <em>forty-eight </em>or <em>fifty </em>may appeal to the Police Service Commission against the order within the time and in the manner prescribed, and the order shall not be executed until the decision of the Commission has been given.”(My emphasis)</p> <p> </p> <p>The applicant averred that despite writing correspondence to the respondents for him to be reinstated pending the determination of the appeal he was not reinstated. He attached a letter that he wrote on 6 February 2015 to this effect. It is this failure to reinstate him that resulted in him filing the present application on 9 December 2015 seeking the following relief.</p> <p>            “It is ordered that</p> <ol> <li>The respondents are ordered to reinstate the applicant forthwith without loss of salary and benefits.</li> <li>The respondents’ conduct is declared unlawful and wrongful.</li> <li>The respondents are ordered to pay costs of suit on a client – attorney scale.”</li> </ol> <p>The respondents opposed this matter by filing a notice of opposition and opposing</p> <p>affidavits but at the hearing they were barred for having filed their heads of argument out of time. Despite the heads of argument being already in the file, Mr <em>K Chimiti</em> of the Attorney General’s Office – Civil Division who was representing the respondents made no effort at all to make an application to have the bar operating against the respondents uplifted. He simply stood up and made an admission that the respondents were indeed barred and said that the application  for condonation which had been filed by his colleague from the Attorney General’s Office was defective and as such there was no application for condonation which was pending before the court. He submitted that in that regard the respondents were barred and the court could proceed to deal with the matter as unopposed. This kind of attitude by an officer from the Attorney General’s Office is very disappointing to say the least. The least he could have done was to make an attempt to make an oral application for condonation in court for the upliftment of the bar in court seeing that the heads of argument had already been filed. Be that as it may, I proceeded to hear the matter as unopposed.</p> <p>            Having gone through the opposition papers, I was alive to some pertinent issues which I felt Mr <em>Mugiya</em> needed to address me on before I could decide whether or not to grant the applicant’s application. The first issue was that in filing the answering affidavit the applicant had gone on to include the Police Service Commission as the third respondent in the matter yet in the  initial papers there was only the Chief Staff Officer and the Commissioner General as the first and second respondents respectively. Consequently, the applicant had gone on to file an amended draft order which included the Police Service Commission as the third respondent. Apparently what had prompted the applicant to include the third respondent was the fact that in opposing the application, the first and second respondents had raised a point <em>in limine </em>to the effect that the applicant had sued the wrong parties instead of suing the Police Service Commission which was the employer and had the mandate to employ and discharge its employees. In his answering affidavit, the applicant averred that it was not the Police Service Commission that had discharged him, but the second respondent. He averred that the same Commissioner General (the second respondent) had the power to reinstate him. He went on to aver that the Police Service Commission is there to regularize the acts of the Commissioner General. Further, he went on to aver that for the purposes of this regularization by the Police Service Commission he had amended his application to include it as a third respondent. The amendment had been done by the citation of the Police Service Commission as the third respondent in the answering affidavit. The applicant went on to attach a notice of amendment to that effect as an annexure to the answering affidavit. Resultantly, an amended draft order was filed. The applicant was now seeking an order against three respondents including the Police Service Commission.</p> <p>            I queried with Mr <em>Mugiya</em> the kind of procedure the applicant had adopted in joining the third respondent as a party to these proceedings as the procedure that the applicant adopted is not provided for in the rules of this court. In terms of order 13 r 87 (2) (b) of the High Court Rules, 1971, it is the court which orders a party to be joined in proceedings. It does that either <em>mero motu</em> or on application. It reads:</p> <p>“At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application—</p> <p>(<em>a</em>) ……….</p> <p>(<em>b</em>) order any person who ought to have been joined as a party or whose presence before the court is</p> <p>necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely</p> <p>determined and adjudicated upon, to be added as a party;……………….</p> <p>(3) A court application by any person for an order under sub rule (2) adding him as a defendant shall, except with the leave of the court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter.”</p> <p>           </p> <p>This means that the applicant could not just add the third respondent as a party to these proceedings without having made a proper application on notice to the Police Service Commission itself and to the first and second respondents. The purported joinder was therefore irregular. When I raised the issue with Mr <em>Mugiya </em>he initially wanted to argue over the issue but was quick to submit that the purported joinder of the Police Service Commission was being abandoned because no relief was actually being sought from it, but from the second respondent, the Commissioner General of Police. The hearing then proceeded as against the first and the second respondents only. </p> <p>The second issue that I asked Mr <em>Mugiya</em> to address was the issue that the applicant had not disclosed in his founding affidavit, but which issue had been disclosed by the respondents in their opposing affidavit. The issue goes to the root of the application. The issue was that the applicant’s appeal to the Police Service Commission had been heard and dismissed on 5 August 2015 and that the dismissal of the appeal had been communicated to the applicant by way of a letter via his lawyers of record on 6 August 2015. That letter was attached as proof of the communication, but there was no proof to show that the applicant’s lawyers had acknowledged receipt of same.</p> <p>            Mr <em>Mugiya</em> submitted that this letter was never served on his law firm. He submitted that his client only became aware of it after the respondents had filed their notice of apposition in the present matter. Mr <em>Mugiya</em> however, went on to say that even if the applicant had become aware of this letter notifying him of the dismissal of his appeal as far back as August 2015, this would not have stopped him from filing the present application in December 2015 seeking the same relief he is seeking now. Mr <em>Mugiya</em>’s argument was that the dismissal of the applicant’s appeal does not change the complexion of his application because the failure by the second respondent to reinstate him upon the filing of his notice of appeal with the Police Service Commission rendered the subsequent hearing of the appeal null and void thereby making the outcome of the appeal a nullity. The thrust of Mr <em>Mugiya’s </em>argument was that anything that followed after the failure to reinstate the applicant is void as the respondents were in contempt of the law for having failed to comply with the provisions of s 51 of the Police Act.</p> <p>            It was Mr <em>Mugiya</em>’s submission that it is the failure by the respondents to comply with the law which demands that the applicant be reinstated to his position without loss of salary and benefits despite the appeal having been subsequently dismissed on 5 August 2015. He further submitted that this court should pronounce or declare the failure to comply with the law as unlawful and wrongful. Citing the case of <em>Muchakata </em>v <em>Netherburn </em>1996 (1) ZLR 153, he submitted that this court held that if an act is void, it is a nullity and every proceeding founded on it is incurably bad.</p> <p>            Mr <em>Mugiya</em> sought to rely on the dirty hands principle arguing that because s 51 had not been complied with, the Commission’s hands were dirty and as such it should not have proceeded to hear the appeal. In making this submission he relied on the Supreme Court case of <em>Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity &amp;Ors </em>2004 (1) ZLR 538 at 548 B-C wherein it was said,</p> <p>            “This court is a court of law, and as such, cannot connive at all or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards. It was entirely open to the applicant to challenge the constitutionality of the Act before the deadline for registration and thus avoid compliance with the law it objects to pending a determination of the court, in the absence of an explanation as to why this course was not followed, the inference of disdain of the law becomes inescapable”</p> <p> </p> <p>            Mr <em>Mugiya</em> submitted that because the Commission’s hands were dirty when it heard the appeal, its decision cannot be allowed to stand. He further submitted that since the subsequent discharge of the applicant on appeal flowed from a flagrant defiance of the law, it is a nullity. He quoted what was said by Lord Denning in the case of <em>Macfoy</em> v <em>United Africa Co Ltd</em> [1961] 3 All ER 1169 at 1172I. Lord Denning said,</p> <p>“If an act is void, then it is in law a nullity.  It is not only bad, but incurably bad.  There is no need for an order of court to set it aside.  It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so.  And every proceeding, which is founded on it is so bad and incurably bad.  You cannot put something on nothing and expect it to stay there.  It will collapse.”</p> <p>Mr <em>Mugiya </em>submitted that the Police Service Commission’s dismissal of the appeal should be set aside to enable the respondents to comply with the law first, which is to reinstate the applicant before his appeal is heard afresh.</p> <p>I am in agreement with Mr <em>Mugiya</em>’s interpretation of s 51 of the Police Act that the effect of appealing against a discharge from the police service by the second respondent is that the  filing of an appeal automatically suspends the decision of the second respondent since the provision says an order of the Commissioner General shall not be executed until the decision of the Commission has been given. Suspension of an order means that the <em>status quo ante</em> should be maintained until the appeal is determined. This therefore means that the appellant is entitled to continue working as a member of the police force. I, therefore, agree with Mr <em>Mugiya</em> that the applicant was entitled to be reinstated on full salary and benefits when he lodged his appeal with the Commission. It is a fact that the reinstatement was not effected. Obviously this failure to comply with the law was unlawful. The critical question now is what is the effect of the non-reinstatement? Does the non-reinstatement render the appeal that was subsequently heard null and void? Is the dirty hands doctrine applicable in the circumstances of this case? Unfortunately, the Police Act has no provision which states the effects of non-compliance with s 51.</p> <p>            Mr <em>Mugiya</em> submitted that s 51 requires the Police Service Commission to first comply with this provision in order to preserve its right to hear an appeal. However, I do not agree with this interpretation of s 51 because the provision simply says that the order of the Commissioner General shall not be executed until the decision of the Commission has been given. The provision does not go further to say that if it is not complied with the appeal becomes invalidated or null and void. Mr <em>Mugiya</em> could not point to any authority which supports this interpretation of s 51. In the absence of such authority I am not persuaded to agree that the failure to comply with s 51 renders the appeal a nullity. It appears to me that there is no link between the hearing of the appeal and the failure to comply with s 51. The appeal in the present matter related to the discharge of the applicant from service and not the failure by the respondents to comply with s 51. The dirty hands doctrine is therefore not applicable. As such the appeal cannot be rendered a nullity by virtue of s 51 not having been complied with.</p> <p>            Whilst the conduct of the respondents in not complying with s 51 was unlawful, the remedy would not be to nullify the appeal proceedings and order the reinstatement of the applicant so that the appeal can be heard afresh. It is a fact that the appeal was dismissed. The applicant cannot seek reinstatement on the basis of non-compliance with s 51 which is not what was being appealed against. As I have already stated what the applicant was appealing against was the order to discharge him from the Police Service and not the failure to reinstate him after he had filed his appeal. The Commission was thus entitled to hear the appeal notwithstanding the non-compliance with s 51 by the respondents. Since the appeal was dismissed, I therefore cannot order the applicant’s reinstatement. This does not mean that this court condones the non-compliance with s 51 which was done by the respondents, but the remedy of reinstatement at this stage is out of the question as the appeal has already been heard and dismissed. The application for reinstatement should have come before the appeal was determined. What is exercising my mind right now is whether or not in the circumstances of this case an application for damages for loss of salary and benefits can be made in respect of the period between the date the applicant was discharged by the second respondent and the date the appeal was determined by the Commission. Whether or not the applicant can succeed in such a claim is an issue for another day because the key question is, what is the effective date of the applicant’s discharge from the Police Service between the date the applicant was discharged by the Commissioner General and the date the appeal was dismissed by the Commission in light of the provisions of s 51?</p> <p>            As I have already stated above, by not complying with s 51 the respondents acted unlawfully. I will thus grant a <em>declaratur </em>to that effect. I will not order any costs against the respondents in view of the fact that the applicant partly succeeded in his application.</p> <p>            <strong>In the result, it be and is hereby declared that</strong>:</p> <ol> <li>The respondents’ conduct in not complying with s 51 of the Police Act</li> <li> </li> <li>It be and is hereby ordered that:</li> </ol> <ul> <li>The application for reinstatement without loss of salary and benefits is dismissed.</li> <li>There is no order as to costs.</li> </ul> <p><em>Mugiya and Macharaga</em>, applicant’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/155/2018-zwhhc-155.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27350">2018-zwhhc-155.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/155/2018-zwhhc-155.pdf" type="application/pdf; length=214926">2018-zwhhc-155.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal">dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/police">POLICE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/discipline-police">Discipline (POLICE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-force">dismissal from force</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/police-officer-%E2%80%93-discipline-see-police-discipline">Police officer – discipline See POLICE (Discipline)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1995/2">Police Act [Chapter 11:10]</a></div></div></div> Mon, 23 Apr 2018 10:15:51 +0000 admin 8748 at https://old.zimlii.org