dismissal https://old.zimlii.org/taxonomy/term/9714/all en Chinganga v Madzivire & Anor (HH632-20, HC 10298/18) [2020] ZWHHC 632 (08 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/632 <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>SIMON CHINGANGA</p> <p>versus</p> <p>TAPSON MADZIVIRE</p> <p>and</p> <p>MUNASHE SHAVA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANZUNZU J</p> <p>HARARE, 7 June 2019 &amp; 8 October 2020</p> <p> </p> <p><strong>URGENT CHAMBER APPLICATION –RETURN DAY</strong></p> <p> </p> <p><em>S. Mpofu</em>, for applicant</p> <p><em>S. Mushonga</em>, for the 1st respondent</p> <p>2nd respondent in default.</p> <p> </p> <p>MANZUNZU J: On 26 November 2018 this court issued the following provisional order:</p> <p>“TERMS OF FINAL ORDER SOUGHT:</p> <p>That you show cause to this Honourable Court why a final order should not be made in the following terms:-</p> <ol> <li>The resolutions purportedly made by the 1st respondent on the 3rd of November 2018 and afterwards concerning the applicant’s position in Adam Bede Manufacturing (Pvt) Ltd are invalid and hereby set aside.</li> <li>It is declared that the 1st respondent has no casting vote in a meeting of the shareholders and cannot impose resolutions on applicant.</li> <li> </li> </ol> <p> </p> <p>TERMS OF THE INTERIM ORDER</p> <p>That pending determination of this matter, the applicant is granted the following relief:-</p> <ol> <li>The resolutions passed on the 3rd of November 2018 which appear on annexure AA1 of the 1st respondent’s opposing affidavit and any changes effected thereafter to the shareholding or directorship of Adam Bede Manufacturing (Pvt) Ltd be and are hereby suspended.</li> </ol> <p>SERVICE OF THE PROVISIONAL ORDER</p> <p>The provisional order shall be served by the Sheriff/his deputy or the applicant’s legal practitioners.”</p> <p>On the return day applicant sought the confirmation of the provisional order. The 1st respondent opposed the confirmation. The second respondent neither filed any heads nor attended court.</p> <p>The background to this matter was aptly summarised by my sister Chirawu-Mugomba J when she granted the provisional order as follows;</p> <p>“The background to this matter is as follows: - According to the applicant, a company (Adam Bede Manufacturing (Pvt) Ltd was incorporated on 4 May 2017. In support of his contention, applicant attached the certificate of incorporation, the CR 14 being a list of directors, articles and memorandum of association. The CR14 shows that the applicant is both a director and the company secretary.  The applicant averred that he owns (1) share which he has not transferred to anyone in terms of article 1 of the articles of association.  At a certain point, a shareholding agreement was drafted to include the second respondent as a shareholder but this never materialised. The applicant called for an extra ordinary meeting which was held on 3 November 2018. The meeting degenerated into chaos and at some point, the applicant left the meeting. 0Certain resolutions were made at the meeting which were to the effect that the applicant was no longer a shareholder, director and company secretary. Furthermore he discovered that his email had been blocked and that he had been removed as a signatory to the company’s bank accounts.</p> <p> </p> <p>In response, the first respondent on the merits disputed the applicant’s version of events. He averred that resolutions were made as per annexure AA1 in tandem with Articles of Association item 59 (g).  The applicant cannot be heard to cry foul when some of the resolutions were made in his presence and he is the one who called for the meeting. The applicant was not involved in the setting of the company which was actually started through a memorandum of agreement for the sale of a business between Hunting Furniture (Pvt) Ltd and Extreme Security Group (Pvt) Ltd represented by the first respondent.  The applicant cannot impose himself as he was a mere ‘invitee’ to the company.</p> <p> </p> <p>The second respondent averred that the applicant was not present when the company was formed. At the time that the company was formed, the second respondent was involved in a number of companies as a board member and he could therefore not sit on the board since he required clearance. The applicant was therefore invited as a proxy to take up one nominal share for purposes of incorporation until the second respondent had been cleared. The applicant never contributed financially to the setting up of the company but he was a mere proxy. The position on the CR 14 has changed and the second applicant has since been cleared to sit on the board of the company but the applicant refused to vacate his seat. The shareholding of the company was amicably restructured so that applicant holds 20% shares, first respondent 40% shares and second respondent 30% shares. In support of his contention, second respondent attached the share allotment and change in directorship registered with the registrar of companies. He averred that he was a signatory on the CBZ accounts from day one since he is the one who caused them to be opened. The applicant had improperly planned to have the second respondent removed from the company at the extra –ordinary general meeting.”</p> <p> </p> <p>The cause of action is founded on the events of the extra-ordinary shareholders’ meeting of 3 November 2018. The convener of the meeting was the applicant in his capacity as the Company secretary. The notice listed the agenda items for discussion at the meeting. These are;</p> <p>“1. To discuss the financial statements for the year ended 31 May 2018 together with the reports of the directors and auditors thereon.</p> <p> </p> <ol> <li>To propose elect additional Directors of the Company <ol> <li>Mr T Madzivire shall remain Director. He was appointed upon inception of the company and the terms has not yet expired.</li> </ol> </li> </ol> <p> </p> <ol> <li>Mr S Chinganga shall remain Director. He was appointed upon inception of the company and the terms has not yet expired.</li> </ol> <p> </p> <ol> <li>To approve the remuneration of the Directors for the year ended December 2018.</li> <li>To appoint Auditors for the current year. The current Auditors Braslyn Investments t/a Wilfaith Consultants shall be legible for appointment.</li> </ol> <p> </p> <ol> <li>To prepare agenda items for the first Annual General Meeting and to set a date for such a meeting.</li> </ol> <p> </p> <ol> <li>To regularize the company’s banking authorities and removal of Mr Munashe Shava as a signatory to the bank’s accounts.</li> </ol> <p> </p> <ol> <li>To regularize the company’s letter head papers by deletion of Shava as a Director from his defacto operational position.</li> </ol> <p> </p> <ol> <li>To give Shava a notice of termination of his engagement with Adam Bede Manufacturing Private Limited.</li> </ol> <p> </p> <ol> <li>To appoint evaluators to value the company and its assets.”</li> </ol> <p>The meeting was attended by the applicant, the first respondent and his legal practitioner Mr Mushonga, and Mr Madzedze the legal practitioner for Mr Shava. At this meeting the applicant and first respondent accused each other of wrong doing. There was controversy between the two. Applicant was bent on removing Mr Shava from a de facto position of director, while first respondent was bend on removing applicant from positions of Director, company secretary and shareholder. As a result, the applicant walked out of the meeting. Despite this state of affairs, applicant and the 1st respondent, each, came up with what they said were minutes of the meeting.</p> <p>The pertinent part of the applicant’s minutes reads;</p> <p>“Mr Madzivire on the advice of his lawyer resolved to remove Mr Chinganga from the company as shareholder, director and company secretary. This was not voted. Mr Madzivire indicated that he had the power to remove Mr Chinganga from the positions without reason, vote or contests. Mr Chinganga asked if Mr Madzivire was simply imposing this position to which question Madzivire assented.</p> <p> </p> <p>As soon as that decision was made, Mr Chinganga was threatened with forceful removal from the premises and preferring not to escalate the problem he left the premises under protest. Mr Chinganga indicated that once he left there was no more meeting to talk about. He left again on the threat to bring security to manhandle him.</p> <p>Effectively, the meeting failed to achieve its objective as no business was conducted except for unilateral decisions that were purportedly made by Mr T Madzivire.”</p> <p> </p> <p>On the other hand first respondent’s minutes recorded the following pertinent issues;</p> <p>“2.2     It was noted and adopted that Mr Tapson Madzivire and Mr Munashe Shava were the founding members of the company.</p> <p> </p> <p>2.3       It was noted and adopted that Mr Tapson Madzivire and Mr Munashe Shava contributed to the establishment of the company from its inception both financially and materially.</p> <p> </p> <p>2.4       It was noted that Mr Simon Chinganga was invited by Mr Tapson Madzivire to the company without financial contribution.</p> <p> </p> <ol> <li>It was resolved that Mr Munashe Shava by virtue of his contribution financially and materially be appointed as an additional director and shareholder of the company.</li> </ol> <p> </p> <p>3.2       It was resolved that Mr Simon Chinganga be removed from the directorship of the company with immediate effect and from being company secretary.</p> <p> </p> <ol> <li>It was resolved that the shareholding donated to Mr Simon Chinganga be withdrawn with immediate effect and he be removed from all company document and profile with immediate effect.”</li> </ol> <p> </p> <p>These two documents self-exhibit the animosity which had developed between the parties.</p> <p>The cause of complaint by the applicant is the resolutions as contained in the minutes by the first respondent which resolutions strip him of his positions as shareholder, director and company secretary as well as any consequential acts thereto. The issue is whether the resolutions are valid. The applicant says they are not and the respondents say they are valid.</p> <p>The respondents allege applicant held positions in the company as a proxy of the second respondent which position the applicant denies. Apart from such allegation the respondents did not prove it as a fact. This is even more so when one considers the CR 14 produced by the applicant and the return of allotments dated 3 September 2018 and CR 14  dated 2 September  2018, (which documents were filed with the Registrar of Companies  on 23 October 2018,)  attached in support of second respondent’s opposition. The parties’ names appear in these documents distinct of any position of a proxy. Reference was made in the written heads to annexure BBB2 as a document which proves the applicant’s position of proxy. Unfortunately no such document is part of the record.</p> <p>The respondents’ written heads of argument took the angle of an attack on the propriety of   the provisional order. It was argued there was no prima facie case established to warrant the granting of a provisional order. That, in my view, is improper for the simple reason that this court is not sitting as an appeal court against its own judgment. The fact remains there is a provisional order which is extant.</p> <p>The heads also dealt with urgency which is no longer in issue because the matter proceeded as an urgent application. Furthermore, the interim relief was said to be final. The first respondent also argued that the dispute was not for the courts as the same should be left to be resolved within the precincts of the company itself. Reference was made to the case of <em>Matanda and Ors</em> v <em>CMC Packaging (Pvt) Ltd and Ors</em> 2003 (2) ZLR 221 (H) 224A-B where the court expressed the general policy of the courts not to interfere with internal domestic affairs of a company.</p> <p>However, <em>in casu</em>, the court’s jurisdiction cannot be ousted where there are serious allegations of irregularities.</p> <p>The relief sought by the applicant is more like a hybrid type of order where on one hand he seeks a declaratur and on the other hand consequential relief in the form of a prohibitory interdict. The requirements of a final order are well settled:</p> <ul> <li>A clear right</li> <li>Irreparable injury actually committed or reasonably apprehended</li> </ul> <p>             (c) Absence of a similar protection by any other remedy</p> <p>See; <em>Setlogelo</em> v <em>Setlogelo</em> 1914 AD 221; <em>Pauline Mutsa Makoni</em> v <em>Julius Tawona</em> <em>Makoni &amp; Ano</em> HH -820-15; <em>Econet Wireless Holdings</em> v <em>Minister of Information</em> 2001 (1) ZLR 373 at 374 B; <em>Airfield Investments (Pvt) Ltd</em> v <em>Minister of Lands &amp; Ors</em> 2004 (1) ZLR 511</p> <p> </p> <p>It is common cause that the company was incorporated with only two directors, the applicant and the first respondent. Applicant’s rights flow from the memorandum and articles in particular as provided for under s 27 of the Companies Act, [<em>Chapter 24:03</em>] which provides that:</p> <p><strong>“</strong>27 (1) Subject to this Act, the memorandum and articles shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed by each member and contained undertakings on the part of each member to observe all the provisions of the memorandum and of the articles.</p> <p>(2) All money payable by any member to the company under the memorandum or articles shall be a debt due from him to the company.”</p> <p> </p> <p>This means a member in his capacity as a member, may, without the company being a party to the action, enforce a right given to him by the articles against another member.</p> <p>The issue of injury to the applicant arising from the first respondent’s actions cannot be disputed. The first respondent purported to singly pass resolutions after stripping the applicant of his voting rights. When the applicant left the meeting there was no quorum as required by article 40. 1st respondent did not show that his actions were in line with the articles of the company. There was no special resolution to change the shareholding of the company as provided for under article 13 (r) (a) &amp; (b). The meeting was not confined to the items on the agenda. The meeting was disorderly with topics outside the agenda thrown in and arbitral resolutions taken without voting.</p> <p>In my view the applicant chose this litigation option because there is no alternative satisfactory remedy available.</p> <p>The respondents have failed to show cause why a final order should not be made. The applicant has made a good case for the relief sought. An amendment was sought to the final relief sought and I did not hear the respondents say they were opposed to it. The amendment is to nullify any act that flows from the purported resolutions.</p> <p>Disposition:</p> <p> </p> <p>IT IS ORDERED THAT:</p> <p> </p> <ol> <li>The provisional order granted by this Court on 26 November 2018 be and is hereby confirmed.</li> <li>The resolutions purportedly made by the 1st respondent on the 3rd of November 2018 and afterwards concerning the applicant’s position in Adam Bede Manufacturing (Pvt) Ltd are invalid and hereby set aside.</li> <li>It is declared that the 1st respondent has no casting vote in a meeting of the shareholders and cannot impose resolutions on applicant.</li> <li>Any action taken in terms of the purported resolutions is hereby set aside.</li> <li> </li> </ol> <p> </p> <p><em>Munangati and Associates,</em> applicant’s legal practitioners</p> <p><em>Mushonga, Mutsvairo and Associates, </em>1st respondent’s legal practitioners</p> <p><em>Mawere Sibanda, </em>2nd respondent’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="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/632/2020-zwhhc-632.pdf" type="application/pdf; length=488261">2020-zwhhc-632.pdf</a></span></div><div class="field-item odd"><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/2020/632/2020-zwhhc-632.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26505">2020-zwhhc-632.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/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/company">COMPANY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/companies-act">Companies Act</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/director">Director</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/shareholder">Shareholder</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/provisional-order">Provisional order</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/1952/471951">Companies Act [Chapter 24:03]</a></div></div></div> Mon, 19 Oct 2020 09:41:16 +0000 Sandra 9869 at https://old.zimlii.org Netone Cellular (Pvt) Ltd v Kangai (HH 441-19, HC 5432/17 Ref HC 10400/16) [2019] ZWHHC 441 (14 June 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/441 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>NETONE CELLULLAR (PVT) LTD</p> <p>versus</p> <p>REWARD KANGAI</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 26 September 2018 and 14  June 2019</p> <p> </p> <p> </p> <p><strong>Application to file further affidavit rule 235</strong></p> <p> </p> <p> </p> <p><em>S. Banda</em>, for the applicant</p> <p><em>T.B. Biti</em>, for the respondent</p> <p> </p> <p>            CHITAPI J: This application is made pursuant to Order 32, rule 235. The applicant is the respondent in case No. HC 10400/16 (main case) and the respondent is the applicant. In the main case, the respondent prays for the following relief as set out in the draft order to that applicvation</p> <p>            IT IS ORDERED THAT:</p> <ol> <li>The respondent’s board, did not have the power and authority to suspend the applicant without pay and benefits as it did on 3 October, 2016.</li> <li>The respondent’s suspension without pay and benefits is therefore unlawful.</li> <li>The respondent is barred and stopped from instituting disciplinary proceedings against the applicant on the basis of their bias.</li> </ol> <p>Or alternatively</p> <ol> <li>The parties must agree on an independent arbitrator who shall determined any charges to be brought by the respondent against the applicant and whose decision shall be final</li> <li>The respondent shall pay costs of suit.</li> </ol> <p>The applicant and respondent are involved in a termination of employment dispute with applicant as employer respondent as employee in this and the main application HC10400/19. In relation to the main application, the parties filed their affidavits of claim, opposing affidavit and the answering affidavit. Of particular note however is that the opposing and answering affidavits were respectively filed on 27 October, 2016 and 2 December, 2016. The application before me was filed 6 months after the answering affidavit on 16 June, 2017. I must determine whether the information or evidence intended to be adduced should justifiably be allowed to be adduced given the time lapse of 6 months. In other words the applicant given the length of the delay must provide a satisfactory explanation for the delay.</p> <p>Ordinarily, a party intending to reopen pleadings must justify why such an indulgence should be given. Application procedure by itself is a quicker procedure for bringing cases up to hearing stage and it is more cost effective than action procedure. Rule 235 which allows the court a discretion to allow the filing of further affidavits has the effect of prolonging application procedure which it is not intended to be. The court will have to extend the times past the close of filing the answering affidavit. In my view, rule 235 should be viewed as an exception and not the norm. There must therefore be special justification for a departure from the general run of the filing of pleading otherwise the purpose and aims of speedy disposal of disputes by way of court applications procedure can easily be defeated if the rule is allowed to be abused. As a general rule therefore, r 235 should not be used by either the applicant or the respondent to adduce evidence to build further on a claim or defence previously pleaded. In the majority of the applications in which resort to rule 235 is adopted, it is usually the respondent who seeks to address new issues which may arise from the answering affidavit of the applicant.</p> <p>There is a plethora of locally decided cases dealing with the filing of a supplementary opposing affidavit as sought to be done by the applicant herein. In <em>United Refineries Limited</em> v <em>Mining Industry Pension Fund and 3 Ors</em> SC 63/14 JA underlined the point which I have made that in applications of this nature, the court is called upon to exercise a judicial discretion. The learned judge at p19 of the cyclostyled judgment stated that “in the exercise of this discretion, it is a fundamental consideration that the dispute between the parties be adjudicated upon all the relevant facts pertaining to the dispute. The court is therefore permitted a certain amount of flexibility in order to balance the interests of the parties to achieve fairness and justice. In this exercise the court has to take into account the following factors-:</p> <ul> <li>A proper and satisfactory explanation as to why the information had not been placed before the court at an earlier stage.</li> <li>The absence of <em>mala fides</em> in relation to the application itself;</li> </ul> <p>That the filing of the supplementary affidavit will not cause prejudice which cannot be remedied by an order of costs”</p> <p>            In the case of <em>Associated Newspapers of Zimbabwe</em> v <em>Media Information Commission</em>  2006 (1) ZLR 128 (H) a decision of this court cited by both counsels in their heads of argument, the court emphasized that an additional affidavit may be allowed to be filed in exceptional circumstances. This underlines the point I made earlier that the filing of an additional affidavit after the answering affidavit should be the exception and not the norm. In <em>N &amp; R Agencies (Pvt) Ltd</em> &amp; <em>Anor</em> v <em>Thabani Ndlovu &amp; Anor</em> HB 198/11, Mathonsi J made the point that a litigant who makes an application to file a supplementary affidavit must show the utmost good faith. It is also my view that the supplementary affidavit should not be allowed if it introduces facts or evidence which was in existence at the time of the preparation of the opposing affidavit and would have been relevant to answering the applicant’s case in whole or in part. In other words the supplementary evidence should not have been relevant in responding to the applicant’s claim in either admitting, denying or confessing to and avoiding the claim.</p> <p>            In <em>Colen </em>v <em>Nel </em>1975 (3) SA 963 (W) at 966 cited by the respondent’s counsel, it is stated: “the court has a discretion to be exercised judicially upon a consideration of the facts of each case. Basically it is a question of fairness to both side. The respondent’s counsel also cited the case of <em>Herman </em>v <em>Jacobs Brothers </em>1931 EDL 284 at 286 where the court stated:</p> <p>            “… the court should accept affidavits if they contain a matter that is material to the issue….”.  In <em>Riesberg</em> v <em>Rieserberg,</em> 1926 WLD 59 at p 60, it is stated: It is quite true that it is not usual to allow a new matter to be introduced by the respondent in a further affidavit after the applicant has filed his answering affidavits but the court may allow it to be done if it is considered desirable …” I am in total agreement with the dicta in the cases. It makes good jurisprudence because the respondent who wishes to raise a claim against the applicant can file a counter application in terms of r 229A instead of making fresh claims after the answering affidavit which is the last affidavit in application procedure.</p> <p>            I now deal with the merits of the application and will apply the principles which guide the court in determining such applications as set out above. The starting point is to appreciate that in the main application, the respondent seeks an order declaring that the applicant’s board did not within the employer and employee relationship have the power and authority to suspend the respondent as the board purported to do on 3 October, 2016. The other relief sought that the purported suspension be declared unlawful and further that the applicant be stopped from conducting disciplinary proceedings consequent on the suspension aforesaid, is consequential to the main relief. The consequential relief is dependent on the answer to the main question whether or not the applicant’s Board had power or authority to suspend the applicant. If the board did not have such power or authority, then it must follow as a matter of law that its actions were null and void. If the board is found to have had the power and authority to suspend the respondent as it did, then, the whole application would be dismissed and it would not be necessary for  the court to determine the ancillary relief.</p> <p>            I have considered the founding, opposing and answering affidavits in the main case. It is not my intention nor is it desirable that I express an opinion on the merits or demerits of the respondent’s claims and the applicant’s defence. It will suffice for me to observe that the gravamen of the main application is that the respondent impugns the acts or actions of the applicant in purportedly suspending and terminating the respondent’s employment contract in law and in fact. The respondent provided a paper trail of how he was suspended and had his employment terminated. He also related to the perceived illegalities in the whole process including raising jurisdictional issues as rendered the conduct of the respondents acting through its board, a nullity. It is on basis of the alleged unlawful conduct of the applicant that the respondent prayed for a declatur as already captured herein.</p> <p>            In the opposing affidavit the applicant first attacked the application on the basis that there was no cause of action since the disciplinary proceedings meant to have been conducted by the applicant were withdrawn a day before the main application was filed. The applicant chronicled the paper trail from 3 October, when the respondent was first suspended from employment until 13 October, 2016 when the main application was filed. In brief the applicant pointed out that the respondents suspension from employment was lifted on 12 October, 2016. On the same date however, the applicant then terminated the respondent’s employment contract on 3 months’ notice. It is the applicant’s contention in the main case that the respondent should have withdrawn the main case because the relief sought amounted to a moot point. Further it was the applicants’ contention that if the court were to grant the declaratory order, the same would amount to a <em>brulmen fulmen.</em></p> <p>            Again, without seeking to determine the main case, I observe that the applicant’s contentions that the main application became academic following the withdrawal of the respondent’s suspension from employment does not properly appreciate the purport of the main application. As I understand it, the purport of the declatory order application is for the court to determine what powers the applicant’s board has over the respondent in relation to the applicant’s employment. The fact that the same board lifted the challenged suspension and proceeded to terminate the respondent’s employment contract constitutes acts which the respondent challenges. Put another way, the board if it does not have authority to suspend the respondent would equally not have authority to uplift the suspension. The law is that once the originating act is invalid, then nothing derives from it. It is as good as it was not done. The upliftment of the suspension does not cure the illegality. The court would in my view still order if it agrees with the respondents’ contentions, that the applicant’s board did not have authority to act as it did. This would have a bearing on the legality of the termination of the applicant’s employment contract by the board. I will leave it at this after noting that the point <em>in limine</em> does not appeal to me as having legal substance. It may well be that after full argument on it, the court hearing the main matter may have a different perception and reach a different. My views will remain a <em>prima</em> <em>facie</em> view.</p> <p>            The point I consider next is that from the supplementary affidavit intended to be filed by the applicant, the deponent to the opposing  affidavit states in paras 12, 13 and 14 as follows:-</p> <p>“12.     Respondent was paid out the total sum of US$247 983.33 (Two Hundred and Forty Seven Thousand Nine Hundred and Eighty United States Dollars and Thirty Three Cents) but a total of US$20 386.65 (Twenty Thousand Three Hundred and Eighty Six United States  (sic) and Sixty Five Cents) was paid to NSSA, WCIF, Old Mutual, Cormation, The Pension Fund, Medical Aid and Funeral assurance. I attach hereto a schedule with the breakdown of the payment made to respondent marked as annexure “F” as well as the proof of payment, marked as Annexure “G”.</p> <p>13.       However, Respondent has consistently adopted a deceitful and fraudulent non-disclosure approach, by refusing to acknowledge the payment.</p> <p>            14.       It is common cause that the payment puts paid to the matter.”</p> <p> </p> <p>            Annexure F is a document headed “Reward Kangai Payout – 01 November 2016 to 30 June, 2017.” It is a schedule of how the sum of US$247 984.33 was computed. The date of preparing the schedule is not indicated anywhere on it. Annexure G is the applicant’s payslip showing a net pay of $US144 142.82. The payslip bears the date 22 March, 2017 reflected on the applicant’s date stamp franked on the payslip. On the next page, there is also another date stamp franked thereon. It bears the date 25 April 2017.</p> <p>            Further to annexures F and G aforesaid, the applicant’s legal practitioners by letter dated 23 March, 2017 which was received by the respondent’s legal practitioners advised of the payment of the US$247 984.33. The letter aforesaid stated as follows in part-</p> <p>“….. (b)  Please note that, your client’s contract having been paid out, he is no longer entitled      to  payment of compensation for loss of office in terms of section 4 (b) of the Labour    </p> <p> Amendment Act, as intimated in paragraph 4 of the Termination letter dated 12  </p> <p> October, 2016</p> <p>            7.         The Contract pay out puts paid to any and all claims by your client against ours.</p> <p>8.         In the premises, we look forward to your client’s Notices of Withdrawal of proceedings in the High Court under case no. HC 10400/16 and HC 11003/16.”</p> <p> </p> <p>            The respondent’s legal practitioners responded to the letter aforesaid on 27 March 2017 and in particular they stated in paragraph 3 and 4</p> <p>“3.       Your client’s purported termination of our client’s contract of employment is unlawful for the reasons which appear fully in the two applications that our client has raised.</p> <p>4.         Because the termination is unlawful and unconstitutional your client is duty bound to continue paying our client his salaries.”</p> <p> </p> <p>            In the same letter the respondent’s legal practitioners responded stating that even if they were to assume pending the respondent’s confirmation that the payment in issue had been made, they took the legal position that the payment would be treated as normal salary due in terms of the existing contract. In other words there was no agreement of a mutual termination of the employment contract or payments due in consequence of the termination. I again leave it at that in order that I do not express an opinion which may materially impact on issues for determination in the main case.</p> <p>            The parties exchanged further correspondence and e-mails then onwards. What is clear from a perusal of the exchanges is that the respondent continued to hold its position that the purported termination of the contract of employment by the applicant acting through its board was invalid. I however specifically refer to annexure ‘H5’ being a letter dated 12 April 2017 from the applicant’s legal practitioners to the respondent’s legal practitioners. It is necessary to quote the contents of the letter. It reads:</p> <p>“RE: REWARD KANGAI v NETONE CELLULAR (PRIVATE) LIMITED LABOUR RELATIONS – CONTRACT PAY OUT</p> <p>            1.         We refer to the above matter and write further to our letter of 28 March, 2017.</p> <p>            2.         Do you now have instructions to withdraw your client’s claim</p> <p>3.         If the matter is proceeding for hearing, we will have to apply for leave to file a further affidavit by our client to place the court into full picture regarding the contract payout.</p> <p>4.         We still await acknowledgment of receipt by your client of the sum of US$247 984.33 (Two Hundred and Forty Seven Thousand Nine Hundred and Eighty Four United States Dollars and Thirty Three Cents) for salaries and benefits from November, 2016 to June 2017, the date of expiry of his employment contract by effluxion of time.</p> <p>            5.         Kindly advise your client’s position in the next three (3 working days).</p> <p> </p> <p>            Yours faithfully</p> <p> </p> <p>            SINYORO AND PARTNERS</p> <p> </p> <p>            It is common cause that shortly after these correspondences, the respondent filed an urgent application Case No. HC 3538/17 for an order to interdict the applicant from filling the position of Chief Executive pending the determination of Case No. HC 11003/16. In judgment No. HH 325/17 delivered on 24 May, 2017, Chigumba J determined that the application was not urgent which effectively meant that the court did not decide the merits of the application. The effect of the declaration that the matter is not urgent would be that the respondent could still take up the application for determination on the ordinary roll, subject to complying with rules which regulate non urgent applications.</p> <p>            The applicant did not file this application after the three (3) working days post 12 April, 2017 as threatened. The answering affidavit had been filed on 2 December, 2016. I have not been able to find from the applicant’s founding affidavit a reasonable explanation for the delay in filing the application post 2 December, 2016 and in particular after the payment in March, 2017 and at best after the three day ultimatum of 12 April, 2017 which ultimatum did not move the respondent to comply. This application was filed 58 days later after the expiry of the ultimatum of 12 April, 2017</p> <p>            The applicant explained off the failure to put the proposed information before the court on the basis that the payout had not been done at the time of filing the opposing affidavit. Applicant explained the delay in filing the application on the basis that it “anticipated that respondent would withdraw the frivolous applications, as is apparent from the correspondences attached above.” I have already dealt with the correspondence. From a reading of the paper trail, the respondent was steadfast that it would not withdraw the main case. There was no basis for the applicant to point in anticipation that the respondent would withdraw the matter. An application to file an additional affidavit has the effect of delaying the determination of the application since leave to file it is required to be sought from a judge or court by way of application. The application may be opposed as <em>in casu</em> and a hearing becomes necessary. A delay in filing the application further exacerbates the delay and must be a factor that should properly be taken into account when the court determines in its discretion whether special circumstances exist to allow for the filing of the supplementary affidavit. In <em>James Brown &amp; Hamer (Pty) Ltd</em> v <em>Simmons N.O </em>1963 (4) SA 656 (A) 660E-F the following is stated:</p> <p>“where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking not a right but an indulgence from the court, he must both advance his explanation of why the affidavit is out of time and satisfy the court that although the affidavit is late, it should having regard to the circumstances of the case nevertheless be received.”</p> <p> </p> <p>I am in agreement with the above dicta particularly on the need to justify the delay in</p> <p>tendering an affidavit out of sequence. It should not just be a question of explaining why the information sought to be introduced was not pleaded earlier. The delay in seeking to tender it from the time it became known is a relevant consideration in addition to other requirements as set out in decided cases which I alluded to.</p> <p>            The next point I deal with is the impact of the new evidence sought to be adduced on the relief sought by the respondent in the main matter. I am in agreement with the respondent’s counsel that the applicant wants to bring up a totally different defence from the one which it raised in answer to the founding affidavit. The proposed supplementary affidavit seeks to bring the defence of a <em>transactio</em> or estoppel as the court might determine. By averring that the respondent was paid off and no longer had a running contract with the applicant the applicant seeks to plead a new defence altogether. This position was from the outset of correspondence vehemently opposed by the respondent. On that basis, I do not consider that the matters sought to be raised would be relevant to the prayer sought by the respondent in the main case. It would also be a misdirection to hold that the subsequent alleged payouts put paid to the case because the respondent denies that they did. The declaratur sought in my view is in answer to the question whether or not the board acted within its powers and authority to suspend the respondent from employment and purport to commence disciplinary proceedings. If such power and authority was not there then it would not proper for the court to say “what does it matter anyway since your contract was paid out and/or it terminated?” Such conclusions can only be reached if the respondent should pursue whatever rights he believes he might be entitled to follow following a declaration if given of the invalidity of the board’s actions. The court cannot conjecture or speculate on this.</p> <p>            To cap it all, I foresee prejudice to the respondent which cannot be cured by an order for costs because there are other pending cases related to the respondent employment with the applicant. To allow the applicant to introduce the supplementary affidavit would render the other litigations superfluous as they will have been anticipated by an order of compromise if it were to be granted. The applicant does not suffer prejudice if its application were to be dismissed because should the respondent seek to raise any issues to do with the legality or otherwise of his employment contract, the applicant can still raise this new defence of a payout and/or the termination of the employment contract by effluxion of time.</p> <p>            Given the totality of the facts and circumstances of this case with particular to the relief sought in the main case, I hold that it would amount to an injudicious exercise of the court’s discretion to allow the applicant to file an additional or supplementary affidavit to the opposing affidavit.</p> <p>            In regard to costs, the respondent prayed for costs of the higher scale in the event of this application being dismissed. I am not persuaded to accept that the application is an abuse of the court process. The parties exchanged correspondence in regard to the materiality and impact of the alleged contract payout. There was no <em>mala fides</em> on the part of the applicant to take the view that its payout extinguished whatever disputes there were between the parties. Its position was understandable but legally untenable. A party does not get punished with punitive costs for holding a contrary legal position because arguments on the law should be encouraged as they enrich our jurisprudence. If the applicant had raised spurious issues of fact, then a punitive costs order could well be justified on the basis that a party who denies evidence which is in blue and white or as clear as day does so <em>mala fides</em>. The appropriate order of costs in the exercise of my discretion is to order costs on the ordinary scale.</p> <p>            Resultantly, I dispose of the applications as follows</p> <p>“The application by the applicant to file a supplementary   opposing affidavit be and is hereby dismissed with costs.”</p> <p> </p> <p> </p> <p><em>Sinyoro &amp; Partners</em>, applicant’s legal practitioners</p> <p><em>Tendai Biti Law</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/harare-high-court/2019/441/2019-zwhhc-441.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28342">2019-zwhhc-441.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/2019/441/2019-zwhhc-441.pdf" type="application/pdf; length=150159">2019-zwhhc-441.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/dismissal">dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employer">Employer</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/unlawful-dismissal">Unlawful dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/amendment-cause-action">Amendment of cause of action</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/2014/63">United Refineries Ltd v Mining Industries Pension Fund &amp; Others (SC 396/12) [2014] ZWSC 63 (07 September 2014);</a></div></div></div> Thu, 18 Jul 2019 10:27:10 +0000 admin 9365 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 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 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 City of Gweru v Masinire (SC 56/18, Civil Appeal No. 45/13) [2018] ZWSC 56 (27 September 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/56 <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>        (50)</strong></p> <p> </p> <p> </p> <p> <strong>CITY     OF     GWERU</strong></p> <p><strong>v</strong></p> <p><strong>RICHARD     MASINIRE</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, MAVANGIRA JA &amp; BHUNU JA</strong></p> <p><strong>HARARE, 29 MAY 2017 &amp; 27 SEPTEMBER 2018</strong></p> <p> </p> <p> </p> <p><em>T Magwaliba, </em>for the appellant</p> <p><em>T Mpofu, </em>for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>BHUNU JA:</strong></p> <p>                        This is an appeal against the judgment of the Labour Court which upheld the respondent’s appeal against dismissal from employment in terms of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006.  The court <em>a quo </em>upheld the respondent’s appeal on the basis that the termination of employment of Senior Urban Council employees is exclusively governed by the Urban Councils Act [<em>Chapter 29:15</em>](“the Act”).  Having come to that conclusion it proceeded to nullify all prior proceedings leading to the respondent’s dismissal from employment.  It held that:</p> <p>“…by virtue of the fact that the Urban Councils Act was ignored and the National code used instead, all the proceedings became a nullity and I hereby allow the appeal with costs.”</p> <p> </p> <p>                        Aggrieved by the above findings and conclusion of law the appellant appealed to this court for relief.  The grounds of appeal are as follows:</p> <p>1.  The court <em>a quo </em>erred in finding that the termination of contracts of employment of senior Urban Council employees is governed exclusively by provisions of the Urban Council Act [<em>Chapter 29:15</em>] to the exclusion of the Labour Act [<em>Chapter 28:15</em>] and the regulations made thereunder.</p> <p> </p> <p>2. The court <em>a quo </em>erred in holding that it had the jurisdiction to hear and determine the matter before it.</p> <p>           </p> <p>Before delving into resolving the contentious issues between the parties, it is necessary to lay down the factual basis of the case which is by and large not in dispute.</p> <p> </p> <p>It is common cause that the respondent was employed as a Chamber Secretary by the appellant City Council.  In that capacity he was a senior official of the respondent, appointed as such in terms of s 133 of the Act.  The appellant dismissed the respondent from its employment following disciplinary proceedings in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006, hereinafter referred to as the (model code).</p> <p> </p> <p> </p> <p>                        The dismissal was approved by the Local Government Board in terms of</p> <p>s 140 (2) of the Act.</p> <p> </p> <p> </p> <p> </p> <p>                        Dissatisfied by the dismissal, the respondent appealed to the court <em>a quo.</em>  The appellant objected to the court’s jurisdiction without success, hence this appeal.  The cardinal issue which emerges for determination is, whether the Urban Councils Act has exclusive jurisdiction over the dismissal of senior Urban Council Employees. In other words the question to be answered is whether the respondent in his capacity as a senior City of Gweru employee was susceptible to disciplinary action under the Labour Act as read with its Regulations.</p> <p> </p> <p>                        Section 140 of the Act provides for the discharge of senior employees of Urban Councils. It states as follows: </p> <p>“140</p> <ol> <li>Subject to subsection (2) and to the conditions of service of the senior official concerned, a council may at any time discharge a senior official –</li> </ol> <p> </p> <ul> <li>Upon notice of not less than three months; or</li> </ul> <p> </p> <ul> <li>Summarily on the ground of misconduct, dishonesty, negligence or any other ground that would in law justify discharge without notice.</li> </ul> <p> </p> <ol> <li>A council shall not discharge a senior official unless the discharge has been approved by the Local Board;</li> </ol> <p>Provided that the discharge of a medical officer of health shall in addition be subject</p> <p>to the approval of the Minister responsible for health in terms of s 11 of the Public</p> <p>Health Act [<em>Chapter 15:09</em>].”</p> <p> </p> <p> </p> <p> </p> <p>                        Subsections (3), (4) and (5) provide for an elaborate disciplinary procedure for the dismissal of senior employees other than the town clerk on grounds of misconduct. They provide as follows:</p> <p>3)         If it appears to a town clerk that any other senior official of the council has been guilty of such conduct that it is desirable that that official should not be permitted to carry on his work, he—</p> <p> </p> <ul> <li>may suspend the official from office and require him forthwith to leave his place of work; and</li> </ul> <p> </p> <ul> <li>shall forthwith notify the mayor or chairman of the council, as the case may be, in writing, of such suspension.</li> </ul> <p> </p> <p> </p> <p>(4)        Upon receipt of a notification of suspension in terms of subsection (3) the mayor or chairperson shall cause the suspension to be reported at the first opportunity to the council.</p> <p>[Subsection substituted by section 27 of Act 1 of 2008.]</p> <p> </p> <p>(5)        Where a council has received a report of a suspension in terms of subsection (4), the council shall without delay—</p> <p> </p> <ul> <li>conduct an inquiry or cause an inquiry to be conducted into the circumstances of the suspension; and</li> </ul> <p> </p> <ul> <li>after considering the results of the inquiry, decide whether or not—</li> </ul> <p>(i)         to lift the suspension; or</p> <p>(ii)        to do any one or more of the following—</p> <p>A.         reprimand the senior official concerned;</p> <p>B.         reduce the salary any allowance payable to the senior official;</p> <p>C.         transfer the senior official to another post or grade, the salary of which is less than</p> <p>that received by him or her at the date of the imposition of the penalty;</p> <p>D.         impose a fine not exceeding level five or three months’ salary, which fine may be</p> <p>recovered by deductions from the salary of the senior official;</p> <p>E.         subject to subsection (2), discharge the senior official.</p> <p> </p> <p> </p> <p>It must be noted that while s 140 of the Act confers jurisdiction on the Town Clerk to initiate disciplinary proceedings against other senior Council employees, it makes no provision for the initiation of any disciplinary action against the Town Clerk. The mayor only comes in after the Town Clerk has instituted the disciplinary proceedings.</p> <p> </p> <p> While the Urban Councils Act provides for the dismissal of a Town Clerk, it makes no provision for the procedure to be followed to effect such dismissal. Thus no disciplinary action could have been initiated against the respondent in terms of the Urban Councils Act because the Act does not confer jurisdiction on any other employee or authority to institute disciplinary proceedings against the Town Clerk.</p> <p> </p> <p>It would have been absurd if not ridiculous to expect the Town Clerk to have instituted disciplinary proceedings against himself, particularly in circumstances where he was denying the charges.</p> <p> </p> <p>It is this <em>lacuna</em> in the Act that must have prompted the appellant to turn to the National Model Code for redress. The learned author CH Mucheche in his book <em>A Practical Guide to Labour Law, Conciliation, Mediation &amp; Arbitration in Zimbabwe (</em>2nd ed African Dominion Publications, Harare,) opines that resort to Model Code S.I 15 of 2006 is permissible if there is no applicable domestic code of conduct. Quoting Professor Madhuku the learned author states as follows:</p> <p>“According to Professor <em>Lovemore Madhuku</em> both section 12B (2) of the Labour Act and section 5 (b) of SI 15 of 2006 compel the use of SI 15 of 2006 in the absence of a registered code of conduct. The expression, ‘in the absence of’ must be interpreted purposefully. The mere existence of a registered code of conduct is not sufficient to oust resort to SI 15 of 2006. There must be a registered code of conduct applicable to the case in question. Where there is a registered code of conduct which is inapplicable to the circumstances of the case, there is, ‘the absence of an employment code’ for purposes of section 12B of the Labour Act and section 5 (b) of SI 15 of 2006… One cannot apply a metal straight jacket and conclude that in every situation where an employment code of conduct exists, it automatically follows that such a code of conduct should solely be used to the exclusion of the National code of conduct”.</p> <p> </p> <p>   This is the sort of case which the learned author had in mind when he made the above remarks. The domestic code of conduct being inapplicable to the case at hand, ways had to be found of resolving the labour dispute confronting the parties.</p> <p> </p> <p>This then brings me to the question of whether the Labour Act is applicable as a disciplinary vehicle over a Town Clerk in his capacity as a Senior Official of an Urban Council.</p> <p> </p> <p>Section 3 of the Labour Act confers jurisdiction on the Act over all employees except those it expressly excludes. It reads:</p> <p>“<strong>Application of Act</strong></p> <p>(1)        This Act shall apply to all employers and employees except those whose conditions of</p> <p>employment are otherwise provided for in the Constitution. (<em>My emphasis</em>).</p> <p> </p> <p> </p> <p>(2)        For the avoidance of any doubt, the conditions of employment of members of the Public</p> <p>Service shall be governed by the Public Service Act [<em>Chapter 16:04</em>]<em>.</em></p> <p> </p> <p>(3)        This Act shall not apply to or in respect of—</p> <p> </p> <ul> <li>members of a disciplined force of the State; or</li> </ul> <p> </p> <ul> <li>members of any disciplined force of a foreign State who are in Zimbabwe under any</li> </ul> <p>agreement concluded between the Government and the Government of that foreign State; or</p> <p> </p> <ul> <li>such other employees of the State as the President may designate by statutory instrument”.</li> </ul> <p> </p> <p> </p> <p>     Upon a proper reading of the above section, it is self-evident that the Labour Act applies to all employees except those in categories that are expressly excluded therein. These are:</p> <ol> <li>Those whose conditions of employment are otherwise provided for in the Constitution.</li> <li>Members of the Public Service as read with s 26.</li> <li>Members of a disciplinary force of the State.</li> <li>Any other employee designated by the President in a statutory instrument.</li> </ol> <p>The respondent not falling under any one of the above excluded categories, it follows that the Labour Act applies to him. The employer was therefore perfectly within its rights to resort to the Model code SI 15 of 2006. </p> <p> </p> <p> For that reason, the court <em>a quo</em> misdirected itself and fell into error when it nullified the prior proceedings on the basis that the Labour Act was not applicable to senior urban council employees.</p> <p> </p> <p>     Section 12B of the Labour Act Provides for laid down procedures for the dismissal of any employee falling within its jurisdiction as follows:</p> <p><strong>“12B Dismissal </strong></p> <p> </p> <ol> <li>Every employee has the right not to be unfairly</li> <li> </li> <li>An employee is unfairly dismissed –</li> </ol> <p> </p> <ul> <li>If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or</li> <li>In the absence of an employment code, the employer shall comply with the model code made in terms of section 101 (9).</li> </ul> <p><strong>[Paragraph substituted by section 7 of Act 7 of</strong> <strong>2005</strong><strong>]</strong></p> <p> </p> <ol> <li>An employee is deemed to have been unfairly dismissed</li> </ol> <p>–</p> <p> </p> <ul> <li>If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;</li> <li>If, on termination of an employment contract of fixed duration, the employee –</li> </ul> <ul> <li>had legitimate expectation of being re-engaged; and</li> <li>another person was engaged instead of the employee.</li> </ul> <ol> <li>In any court proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employees previous disciplinary record, the nature of the employment and any special personal circumstances of the employee. (My underlining)</li> </ol> <p>[Section substituted by section 10 of Act 17 of 2002].”</p> <p> </p> <p> </p> <p>     The Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 is the model code envisaged in s 12B (2) (b) above. Ordinarily it is meant to provide a platform for settling labour disputes where there is no internal or domestic disciplinary code of conduct at the work place.</p> <p> </p> <p>Considering that it is undesirable for parties to a dispute to be left without an appropriate mechanism of resolving their labour disputes, like professor <em>Madhuku</em> and <em>CH</em> <em>Mucheche</em>, I consider that s 12B (2) (b) should be given a broad purposeful interpretation to include circumstances where an existing internal code of conduct or dispute resolution mechanism cannot for justifiable reasons apply to a particular case. It therefore appears to me that the legislator intended the model code of conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate for good reason to apply any other dispute resolution mode. To that extent it is a universal disciplinary code of conduct fitting all circumstances according to the exigencies of each case within the confines of the Labour Act.  </p> <p> </p> <p> </p> <p>The cardinal question which then arises for determination is whether the Urban Councils Act excludes the jurisdiction of the Labour Act in the dismissal of senior council employees such as the respondent in this case.</p> <p> </p> <p> Historically, prior to 2005 this court had consistently held that senior employees of Urban Councils were not susceptible to dismissal in terms of the Labour Act. See the leading case of <em>City of</em> <em>Mutare V Matamisa</em> 1998 (1) ZLR 512.</p> <p> </p> <p>Following the decision in the <em>Matamisa</em> case and a host of others based on the law prior to 2005 the lawmaker in its wisdom amended the law in two fundamental respects under the Labour Amendment Act, 2005 as follows:</p> <p> </p> <ol> <li>It made the Labour Act superior to all other enactments inconsistent with it. In other words, it takes precedence and overrides any other subordinate statutes in conflict with it.</li> </ol> <p> </p> <ol> <li>The Act now applies to all employees save those it expressly excludes from its ambit.</li> </ol> <p> </p> <p>Sections 2A and 3 of the Labour Act as amended now read:</p> <p> </p> <p>“2A.  <strong> Purpose of Act</strong></p> <p> </p> <p> </p> <ol> <li>This Act shall prevail over any other enactment inconsistent with it.</li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>3. Application of Act</strong></p> <p> </p> <p>(1)  This Act shall apply to all employers and employees except those whose conditions of</p> <p>                   employment are otherwise provided for in the Constitution.</p> <p> </p> <p>(2) For the avoidance of any doubt, the conditions of employment of members of the Public</p> <p>Service shall be governed by the Public Service Act [<em>Chapter 16:04</em>]<em>.</em></p> <p> </p> <ol> <li>This Act shall not apply to or in respect of—</li> </ol> <p> </p> <ul> <li>members of a disciplined force of the State; or</li> </ul> <p> </p> <ul> <li>members of any disciplined force of a foreign State who are in Zimbabwe under any</li> </ul> <p>agreement concluded between the Government and the Government of that foreign State; </p> <p>or</p> <p> </p> <p>(<em>c</em>) such other employees of the State as the President may designate by statutory instrument”  (My underlining)</p> <p> </p> <p> </p> <p> The section is couched in clear and unambiguous peremptory terms, such that the problem of interpretation does not arise at all. All that the lawgiver is saying is that the Labour Act applies to all employees except those it expressly excludes from its domain. In other words, the Labour Act applies to all employees except those whom the legislator has expressly excluded from its application.</p> <p> </p> <p>It must however be noted that the Public Service Act [<em>Chapter 16:04</em>]is different from the Urban councils Act in that it expressly confers appellate jurisdiction on the Labour Court under s 26 in respect of matters initially determined in terms of the Public service Act [<em>Chapter 16:04</em>].</p> <p> </p> <p>Now, for the respondent to escape the omnibus application of the Labour Act, he must show that he is one of those employees expressly excluded under s 3 of the Labour Act.</p> <p> </p> <p>It is plain that the respondent in the court aquo dismally failed to prove on a balance of probabilities that he is one of those employees expressly excluded from the application of the Act. His argument was that the Labour Act does not apply to him because his contract of employment is exclusively governed by the Urban Councils Act.</p> <p> </p> <p>That line of argument is defective and unsustainable at law, because the Urban Councils Act is subservient to the Labour Act. In terms of s 2A of the Labour Act the Legislator has decreed it to prevail over any other enactment inconsistent with it.</p> <p> </p> <p>What this means is that whatever the provisions of the Urban Councils Act might be, they cannot exclude the application of the Labour Act to any employee. It is only the Constitution and the President by statutory instrument that can override the application of the Act over any employee.  </p> <p> </p> <p> While the cases decided before the advent of the Labour Amendment Act, 2005 were correct at that time in holding that the Labour Act was inapplicable to Senior Urban Council employees, those judgments have since been overtaken by events. For that reason, since the promulgation of the 2005 Amendment they have ceased to be valid and binding going forward.</p> <p> </p> <p>That being the case, the court <em>a quo</em> fell into error and misdirected itself when it upheld the respondent’s appeal on the basis that the proceedings in terms of the labour Act were a nullity. The proceedings in terms of the Labour Act were valid notwithstanding the provisions of the Urban Councils Act because the Respondent did not have a registered code of conduct and the disciplinary procedures laid down in the Urban Councils Act were inapplicable to the appellant in his capacity as Town clerk.</p> <p> </p> <p>For the foregoing reasons the appeal can only succeed. The judgment of the court <em>a quo</em> will have to be set aside thereby clothing it with the necessary jurisdiction to determine the appeal in terms of the Labour Act. The merits and demerits of the appeal are exclusively within the jurisdiction of the Labour Court.</p> <p> </p> <p>There being no reason to depart from the general rule that costs follow the result, the general rule shall prevail.</p> <p> </p> <p>It is accordingly ordered that:</p> <p> </p> <ol> <li>The appeal be and is hereby allowed with costs.</li> </ol> <p> </p> <ol> <li>The Labour Court judgment number LC/MT/92/12 be and is hereby set aside.</li> </ol> <p> </p> <ol> <li>The matter is remitted to the Labour Court for it to proceed to hear and determine the appeal under case number LC/MT/120/2011 on the merits.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>GWAUNZA DCJ</strong>                                                I agree</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA</strong>                                              I agree</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Danziger &amp; Partners</em> appellant’s legal practitioners</p> <p> </p> <p><em>Messrs J Mambara</em> <em>&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/2018/56/2018-zwsc-56.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=48305">2018-zwsc-56.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/2018/56/2018-zwsc-56.pdf" type="application/pdf; length=240820">2018-zwsc-56.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/dismissal">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/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/1995/21">Public Service Act [Chapter 16:04]</a></div></div></div> Wed, 24 Oct 2018 06:21:33 +0000 admin 9116 at https://old.zimlii.org Drum City (Private) Limited v Garudzo (SC 57/18, Civil Appeal No. 937/17) [2018] ZWSC 57 (25 September 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/57 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><a name="_Hlk507840611" id="_Hlk507840611"><strong>REPORTABLE </strong></a><strong>       (47)  </strong></p> <p> </p> <p><strong>DRUM     CITY     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>BRENDA     GARUDZO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, MAKARAU JA &amp; MAKONI JA</strong></p> <p><strong>HARARE, JUNE 26, 2018 &amp; SEPTEMBER 25, 2018</strong></p> <p> </p> <p><em>V. Shamu</em>, for the appellant</p> <p>No appearance, for respondent</p> <p>             </p> <p><strong>GWAUNZA DCJ</strong></p> <p>[1]        This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant’s former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain acts of misconduct, including theft.</p> <p>           </p> <p><strong>FACTUAL CONSPECTUS</strong></p> <p>[2]        The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3 986-61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.</p> <p> </p> <p>[3]        Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of s 93 of the Labour Act [<em>Chapter 28:01</em>], (“the Act”). The dispute was placed before the respondent for a hearing. It was her case that no proper investigations were conducted into the allegations levelled against her and further, that she was not granted the right to be heard before she was summarily dismissed. She thus claimed damages for unlawful dismissal totalling US$23 253-34.</p> <p> </p> <p>[4]        Before the labour officer, the parties did not agree on Ms Khan’s monthly salary, as the appellant alleged that it was US$750-00 while Ms Khan argued that it was US$1500 - 00. The respondent ruled in favour of Ms Khan on this point and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages <em>in lieu</em> of reinstatement amounting to a total of US$9000-00.</p> <p> </p> <p>[5]        Subsequently, the labour officer applied to the Labour Court in terms of s 93 (5a) of the Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings. The appellant opposed the application but the court <em>a quo</em> after hearing oral argument from the appellant, granted an order confirming the ruling.</p> <p> </p> <p><strong>PROCEEDINGS BEFORE THIS COURT </strong></p> <p>[6]        The appellant was aggrieved by the decision of the court <em>a quo</em> and has appealed against it to this Court. It argues in the main that the court <em>a quo</em> erred in simply confirming the respondent’s award to Ms Khan of US$9 000-00 as damages without fully addressing the principles of law to be applied thereto. It further argued that the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property and in addition, had failed to avail herself for the hearing which led to her dismissal.</p> <p> </p> <p>[7]        The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing. The court observed that the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.  Ms Khan, was not cited in the appeal before this Court. Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.</p> <p>           </p> <p><strong>SECTION 93(5a) – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS</strong></p> <p>[8]        Counsel for the appellant rightly conceded that the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court <em>a quo</em> and in this Court. Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.  The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of s 93 (5a) of the Act. The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer’s draft ruling in terms of s 93(5b) of the Act.</p> <p> </p> <p>[9]        It is noted that prior to the Labour Amendment Act No. 5 of 2015, labour disputes of right would go before a labour officer for conciliation, and if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard. Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party on the other hand, had the right to appeal against the award to the Labour Court.</p> <p> </p> <p>The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of s 93 (5a) and (5b) of the Labour Act was meant to address this mischief.</p> <p> </p> <p>[10]      Subsections 93(5a) and (5b) provide as follows:</p> <p>(5a)      A labour officer who makes a ruling and order in terms of ss (5)(c) shall as                       soon as practicable-</p> <p>(a)        <strong>make an affidavit to that effect incorporating</strong>, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and</p> <p>(b)       <strong>lodge, on due notice to the employer or other person against</strong> <strong>whom</strong>                  the ruling and order is made  (“the respondent”), an application to the               Labour  Court, together with the affidavit and a claim for the costs of                    the application (which shall not exceed such amount as may be                               prescribed), <strong>for an order directing the respondent</strong> by a certain                                     day (the “restitution day”) not being earlier than thirty days from the                      date that the application is set down for hearing (the                                                 “return day” of the application) <strong>to do or pay what the labour officer                 ordered</strong> under ss (5)(c)(ii) and to pay the costs of the application.</p> <p>(5b)      <strong>If, on the return day of the application, the respondent makes no          appearance</strong> or, after a hearing, the Labour Court <strong>grants the application                 for the order with or without amendment</strong>, the  labour officer concerned    shall,    if the <strong>respondent does not comply fully or at all with the order            by        the restitution day, submit the order for registration </strong>to whichever court    would have had  jurisdiction to make such an order had the matter been     determined by             it, and thereupon the order shall have effect, for purposes of            enforcement, of a civil judgment of the appropriate court. (<em>my emphasis</em>)</p> <p> </p> <p>[11]      My interpretation of the two provisions cited suggests the following procedural steps;</p> <p>a)         the labour officer, after making a ruling in terms s 93(5)(c)(ii) of the Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based,</p> <p>b)         the labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).</p> <p>c)         the labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.</p> <p>d)         should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.</p> <p>e)         on the date of hearing, (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment,</p> <p>f)         thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order, (obtained in default of appearance by the respondent, or after a hearing by the Labour Court), for registration;</p> <p>g)         upon submission of the order to the relevant court for registration, it shall have the same effect for purposes of enforcement, as any civil judgment of that court.</p> <p> </p> <p> </p> <p>[12]     It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling      made against an employee. That this is the case is left in no doubt by the wording of s 93(5)(c)(ii) which specifically provides for a ruling like the one <em>in casu</em> in circumstances where the labour officer finds that the dispute of right in question <strong>‘must be resolved against any employer or other person in a specific manner …’</strong></p> <p>  </p> <p>[13]      Without a clear pronouncement to that effect, there can in    my view be no doubt that       reference to ‘any person’ in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the       confirmation and registration of a draft ruling by the labour officer, which is made in         favour of an employer and against an aggrieved employee.              It follows that the Labour           Court has no jurisdiction to entertain such a matter and should on that basis properly           decline to hear it.</p> <p> </p> <p>[14]      It is noted further that the wording of ss (5b), <em>albeit</em> not specifically stating so, excludes the employee concerned from the confirmation proceedings. This is an employee who would have been an active party in, as well as the instigator of, the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her. In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.</p> <p> </p> <p>[15]      It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests. Even if the nature of the hearing mentioned in ss (5b) is not clear, one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.</p> <p> </p> <p>[16]      The employee on these grounds can in my view properly apply to be joined to the confirmation proceedings in terms of r 33(2) of the Labour Court Rules, SI 150/17. The joinder of a party <em>mero motu</em> by the court is not expressly provided for in r 33, however. I am nevertheless satisfied that this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court in a deserving case, to order <em>mero motu</em> the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings. Such an order would ensure full compliance with the common law rule, <em>audi alteren partem.</em></p> <p> </p> <p>[17]      The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities.</p> <p>Cilliers AC, Loots C and Nel HC Herbstein and van Winsen, <em>The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa</em> (5th edn, Juta &amp;Co Ltd, Cape Town, 2009) vol. 1 at page 215 explain non-joinder by stating as follows:</p> <p>“A third party who has, or may have a direct and substantial interest in any          order the court might make in proceedings or if such an order cannot be          sustained or      carried into effect without prejudicing that party, is a necessary party and should be      joined in the proceedings, unless the court is satisfied that such a person has waived      the right to be joined. …  in fact, when such person is a necessary party in the sense             that the court will not deal with the issues without a joinder being effected, and no           question of discretion or convenience arises.” (<em>my emphasis)</em></p> <p> </p> <p> </p> <p>The meaning of direct and substantial interest is explained at page 217 to 218 as follows:</p> <p>“A ‘direct and substantial interest’ has been held to be ‘an interest in the right      which is the subject-matter of the litigation and not merely a financial interest            which is only an indirect interest in such litigation’. It is ‘a legal interest in the subject      matter of the litigation, excluding an indirect commercial interest only’. The         possibility of such an interest is sufficient, and it is not necessary for the court to             determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter      of the   litigation but also in the outcome of it.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>[18]      It hardly needs emphasis that, <em>albeit</em> not applicable <em>in casu,</em> an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.  The employee in any case would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment. The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order <em>mero motu</em> that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent. </p> <p> </p> <p>[19]      That the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates;</p> <p>“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder,          the court should raise it <em>mero motu</em> to safeguard the interest of third parties and it   should decline to hear the matter until such joinder has been effected, or until the         court is satisfied that the third parties have consented to be bound by the    judgment or have waived their right to be joined.”</p> <p> </p> <p>When this is related to the circumstances of this case, it cannot in my view be contested that the joinder of the employee, Ms Khan, was necessary.</p> <p> </p> <p>[20]      While it is noted <em>in casu</em> that the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored that the court effectively heard evidence from one side of the dispute and not the other, before making its determination. As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling.  It then essentially weighed the respondent’s submissions against what was contained in the affidavit of the labour officer, and made its determination. The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the <em>quantum</em> of the award. Nor, however could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking that the employee had been accorded the unfair advantage of having her case ‘argued’ for her by the labour officer.</p> <p> </p> <p>[21]      There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings.  Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, ss (5b) affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter. It is evident from ss (5b) that before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is in reality not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect. He cannot therefore be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation. Defending the labour officer’s ruling should properly be the province of the person directly affected by it, that is, the employee concerned. In my view, the Labour Court’s confirmation or non-confirmation of the ruling after effectively hearing one side of the dispute is at best an irregularity and at worst a travesty of justice.</p> <p> </p> <p>[22]      Secondly, the procedure presupposes that a ruling made by the labour officer in favour of an employee will meet that employee’s satisfaction. It shuts the door for instance on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that <em>quantum,</em> in confirmation proceedings before the Labour Court. A joinder to the proceedings would accord the employee the opportunity to, as it were ‘cross oppose’ the confirmation proceedings in the desired respect.</p> <p> </p> <p>[23]      Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court for one reason or the other, the employee might wish to take up the matter on appeal. He would however, be hamstrung by the fact that he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order, on his or her behalf.</p> <p> </p> <p>[24]      Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.  One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent. This is what happened <em>in casu</em>. All too often this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal. Equally often, the respondent cited in the appeal, that is the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument.  Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer’s appearance.</p> <p> </p> <p>[25]      Ordinarily where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party. The point has already been made that the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee’s knowledge. The injustice of such an outcome needs no emphasis.</p> <p> </p> <p>[26]      Finally, the appearance of the labour officer as the respondent in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems. In such cases the question of the labour officer’s competence to so appear has arisen. In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis?  It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.</p> <p> </p> <p>[27]      Other aspects of the procedure suggested by ss (5a) and (5b) of s 93 of the Act merit some comment.  Subsection (5b) makes it clear that the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court’s confirmation of the labour officer’s ruling.</p> <p> </p> <p>[28]      Further, while ss (5b) clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution. Without being cited as a party, there would be confusion as to whether the ‘claimant’, that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite <em>locus standi</em>, and more so because ss (5b) does not mandate him to do so. The danger of the Labour Court’s order being rendered a <em>brutum fulmen </em>becomes real.</p> <p> </p> <p>[29]      In conclusion, while one might argue in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view that the absurdities could not have been consciously intended by the legislature.  The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court. The legislature might well wish to consider addressing this and the other concerns set out in this judgment.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>[30]      When all is said and done and in view of the foregoing, it is my finding that there was       a fatal non-joinder of the employee, Ms Khan, to the proceedings <em>a quo</em>. Such proceedings can therefore not be allowed to stand.</p> <p> </p> <p>In the result, the following order is made:</p> <p>1.   The appeal be and is hereby allowed.</p> <ol> <li>The proceedings and judgment of the court <em>a quo</em> be and are hereby quashed.</li> <li>The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.</li> <li>Each party shall bear its own costs.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>MAKARAU JA:                   </strong>I agree</p> <p>           </p> <p> </p> <p> </p> <p><strong>MAKONI JA:                        </strong>I agree</p> <p> </p> <p> </p> <p><em>Vasco Shamu and Associates</em>, appellant’s legal practitioners</p> <p>This paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights</p> <p>Such employee would, it seems, have to pursue other avenues to appeal against the draft ruling.</p> <p>The hearing is certainly not an appeal against nor a review of, the Labour Officer’s ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer’s ruling.</p> <p>See  Herbstein and van Winsen’s  ‘The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa’ (<em>supra</em>) at  pages 208 to 209.</p> <p>Before the court <em>a quo </em>the labour officer briefly repeated the facts of the dispute and the details of the award she had made.  </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/2018/57/2018-zwsc-57.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=51045">2018-zwsc-57.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/2018/57/2018-zwsc-57.pdf" type="application/pdf; length=278123">2018-zwsc-57.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/dismissal">dismissal</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-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/2015/52015">Labour Amendment Act, 2015</a></div><div class="field-item odd"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Tue, 23 Oct 2018 08:18:36 +0000 admin 9115 at https://old.zimlii.org St. Giles Medical Rehabilitation Centre v Patsanza (SC 59/18, Case No. SC 668/15 Ref Case No. LC/H/116/13) [2018] ZWSC 59 (23 September 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/59 <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>   (46)</strong></p> <p> </p> <p> </p> <p><strong>ST. GILES     MEDICAL     REHABILITATION     CENTRE</strong></p> <p><strong>v</strong></p> <p><strong>LAMBERT     PATSANZA</strong></p> <p>                                                                       </p> <p>       </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GUVAVA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE, 23 September 2016</strong></p> <p> </p> <p> </p> <p><em>S. Banda, </em>for the appellant</p> <p><em>W. Jiti, </em>for the respondent</p> <p> </p> <p> </p> <p><strong>GUVAVA JA</strong>:    This is an appeal against a judgment of the Labour Court dated 27 September 2013.</p> <p> </p> <p> After hearing argument we made an order allowing the appeal in part and indicated that the reasons thereof would be availed in due course.  The reasons for that decision are set out below:</p> <p> </p> <p><strong>BACKGROUND FACTS</strong></p> <p>The appellant engaged the respondent as a Finance and Administration Manager. The contract was subject to a three months’ probationary period.  The period of probation was effective from 28 February 2012 and was to end in May 2012.</p> <p>On 31 May 2012 the respondent was advised that his position was not going to be confirmed as his evaluation had not been satisfactory. The appellant however decided to extend the probation period by one month. This was in an attempt to allow the respondent to remedy the inconsistencies which had been noted by the appellant during his evaluation which had taken place at the beginning of May 2012. The respondent refused to accept an extension of the period of probation, arguing that he had successfully completed the accounts for 2011 and that he had subsequently been issued with a company car. It was his argument that the issuance of the company car confirmed that he was now a permanent employee. In spite of his protestations, the respondent continued to work for the duration of the extension.</p> <p> </p> <p>On 21 July 2012 the appellant wrote to the respondent advising him again that his probationary period had not been successful and gave him two weeks’ notice to terminate his services.</p> <p> </p> <p>The respondent declined to accept the two-week period of notice and argued that the termination amounted to an unfair dismissal. He argued that as a “permanent employee” he was entitled to three months’ notice of the termination of his employment.</p> <p> </p> <p>As the parties were unable to resolve the dispute, it was referred to an Arbitrator who found that the extension of the probationary period was unlawful.  The arbitrator made an award on 31 January 2013 in the following terms:</p> <ol> <li>back-pay of salary and benefits from 1 July 2012 to the date of the award,</li> <li>the value of six months’ basic salary for compensation for unlawful termination of the employment contract,</li> <li>three months’ salary as notice pay which would incorporate cash <em>in lieu</em> of leave days; pension contributions; compensation for loss of the company vehicle; and 100 litres of fuel per month for the period from July 2012 until the date of the award.</li> </ol> <p> </p> <p>The appellant was dissatisfied with the award and approached the court<em> a quo </em>seeking the setting aside of that determination and the confirmation of the termination of the respondent’s employment. The appeal was opposed by the respondent.</p> <p> </p> <p>The court <em>a quo</em> upheld the Arbitrator’s award and dismissed the appeal. The appellant noted an appeal against the decision of the court <em>a quo</em> on four grounds, namely:-</p> <p>“1. The court <em>a quo</em> erred on a point of law by holding that</p> <p>section 12(5) of the Labour Act does not confer a discretion to the employer <em>(sic)</em>to extend an employee’s probationary period and further that according to Labour Act, a probation period cannot be extended</p> <ol> <li>The court <em>a quo</em> erred on a point of law by holding that by extending the probationary period, the employer had made the employees position permanent by operation of the law. The extension of probation does not amount to an election to permanently employ an employee on probation, where such extension has been explicitly communicated.</li> <li>The court <em>a quo</em> misdirected itself by completely ignoring that the parties’ employment relationship was governed by a contract of employment and that according to that contract of employment confirmation into a substantive position was to be done in writing and subject to a successful medical examination.</li> <li>The court <em>a quo</em> erred on a point of law by holding that the respondent was entitled to three (3) months’ notice, when he was in fact not a permanent employee.”</li> </ol> <p> </p> <p> </p> <p><strong>ISSUES BEFORE THE COURT</strong></p> <p>It seems to me that three issues present themselves for determination. These are:-</p> <ol> <li>The purpose of a period of probation.</li> <li>Whether s 12 (5) of the Labour Act permits an extension of a period of probation.</li> <li>The status of an employee who continues to work after the probationary period has elapsed.</li> </ol> <p>I propose to deal with each of the issues in turn.</p> <p> </p> <ol> <li><strong>The purpose of a period of probation</strong></li> </ol> <p>The main reason for having a period of probation is now generally accepted. A probationary period is designed to function as a time when an employer can evaluate a “potential” employee before opting to accept him or her as a full time employee. During this period the employee is assessed and evaluated to determine his suitability for permanent employment. Professor Lovemore Madhuku in his book “<em>Labour Law in Zimbabwe</em>” at page 44 states as follows with regards to the purpose of probation:</p> <p>“A probationary employee is one who is in the initial period of his or her employment where his skill and abilities are being assessed. <strong>The probationary employment contract is separate from the second employment contract,</strong> which is conditional on successfully completing the probation ….”</p> <p> </p> <p> </p> <p>CHINHENGO J in <em>Madawo v Interfresh Limited</em> 2000 (1) ZLR 660 at 882 remarked as follows:</p> <p>“Probation is defined in the New English Dictionary as “The action or process of testing or putting to the proof … the testing or trial of a person’s conduct, character or moral qualification; a proceeding designed to ascertain these … for some position or office. I think these words very well describe the process of probation as commonly undergone by accepted candidates ….”</p> <p> </p> <p> </p> <p>Probation was expressed by NDOU J in the case of <em>Commercial Bank of Zimbabwe v Kwangwari</em> HH79/2003 as follows:</p> <p>“Probationary clauses provide for a trial period during which the reciprocal periods of notice required for termination are shorter, and which purportedly give both parties the right either to confirm or not to confirm the contract at the conclusion of the probationary period”</p> <p> </p> <p> </p> <p>It is apparent from the above that firstly, the employee must successfully complete the period of probation before he can be permanently employed. Secondly, that the probationary period is a separate and distinct contract. Thirdly, the contract of permanent employment only comes into operation once an employee has successfully completed the period of probation and finally, it is reciprocal in nature. In other words if an employee is dissatisfied with the employer he may also terminate the employment by giving the requisite notice.</p> <p> </p> <ol> <li><strong>Whether the Labour Act permits an extension of a period of probation</strong></li> </ol> <p>Section 12(5) of the Labour Act [<em>Chapter 9:16</em>] regulates issues of probation in the workplace.  The section reads as follows:</p> <p>“A contract of employment may provide in writing for a single, non-renewable probationary period …”</p> <p> </p> <p> </p> <p>This provision is clear and requires no interpretation. It seems to me that the provision provides that where an employer decides to include a probationary period in the contract of employment then that period is not renewable. The court <em>a quo</em> in my view correctly found that the use of the word “may” in the above section relates to the employer’s discretion to engage an employee either on probation or immediately into a substantive position. Once a probationary period is given by an employer then it can only be a “single, non-renewable” period. In this regard Professor Madhuku states:</p> <p>“This means that at the end of a probationary period the employer has two choices: either allow the probationary contract to lapse and let the employee go, or enter into a second employment contract with the employee. <strong>There is no room for renewal of the probationary contract.</strong>”</p> <p> </p> <p> </p> <p>This position was also set out in the case of <em>Kazembe v the Adult Literacy Organisation </em>SC 173/1994, where the court stated that once a probation period ends and the employer is dissatisfied with the probationer’s performance, all that the employer needs to do is to inform him that his services are no longer required and that would be the end of the matter.</p> <p> </p> <p>There are two ways in which an unsuccessful probationary employee can be dismissed. The first is to allow the probation period to expire naturally wherein the employee is released at the end of that period. The second is to release the probationary employee before the end of the probation period. Where the probationary period is cut short then the issue of notice arises and he must be given notice in terms of the contract.  (see<em> Time Bank of Zimbabwe v Nkosana Moyo HH26/02</em><strong>.</strong>)</p> <p> </p> <p>I do not accept Mr <em>Banda</em>’s submission that the appellant could extend the probationary period. The appellant relied on the position in<em> Kwangwari v Commercial Bank of Zimbabwe</em> (<em>supra</em>) where the court allowed the employer the discretion to extend a probationary period without the employee assuming substantive appointment to a permanent position. It is apparent that at the time that NDOU J dealt with the <em>Kwangwari</em> case, s 12(5) of the Labour Act had not come into operation.  This case came before the High Court in 2002. Section 12(5) of the Act was only enacted by amendment 17/2002 which was published and came into operation on 7 March 2003.</p> <p>In view of the above, it is therefore apparent that the appellant committed two errors.  It erred in extending the period of probation. It also erred in dismissing the respondent on two weeks’ notice which was not provided for in the contract of employment. </p> <p> </p> <p><strong>(3)</strong>                   <strong>What was the respondents’ employment status at the time of termination of the contract?</strong></p> <p>It seems to me that the appellant, having failed to dismiss the respondent during the period of probation, the question that arises is the status of the respondent after the three months probationary period. Applying s 12(5) of the Labour Act, it is apparent that the respondent was no longer on probation as the contract stipulated a three month period of probation.</p> <p> </p> <p>                        Clearly, therefore, in these circumstances the court <em>a quo</em> was correct in finding that the respondent had become a permanent employee.</p> <p> </p> <p>However I am not satisfied that the respondent was entitled to the total award made by the Arbitrator.   As the respondent was now a permanent employee, the consequence of his dismissal which the Arbitrator found to be unlawful should have been reinstatement.  The remedy was not to dismiss him on three months’ notice. </p> <p> </p> <p>It was on the basis of the above that the appeal was allowed in part and the following order made:</p> <ol> <li>The appeal against the judgment of the Labour Court be and is hereby allowed in part, with each party paying its own costs.</li> <li>The judgment of the court <em>a quo</em> is amended to read as follows:-</li> </ol> <ul> <li>The appeal is allowed in part, with each party paying its own costs.</li> <li>The award of the arbitrator in respect of the monetary award is set aside.</li> <li>The award is amended to read as follows:</li> </ul> <ul> <li>“The termination of the employment of the claimant is unlawful and is set aside.</li> <li>The respondent is ordered to reinstate the claimant into his former position without loss of salary and benefits.</li> <li>In the event that reinstatement is no longer possible, the respondent is to pay damages to the claimant as agreed upon between the parties or, that failing, as determined before me upon application.</li> <li>Each party pays its own costs</li> </ul> <p><strong>GARWE JA:</strong>             I agree</p> <p><strong>UCHENA JA:</strong>           I agree</p> <p><em>Mambara &amp; Partners</em>, appellants’ legal practitioners</p> <p><em>Musendekwa – Mtisi</em>, respondents’ legal practitioner</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/2018/59/2018-zwsc-59.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40438">2018-zwsc-59.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/2018/59/2018-zwsc-59.pdf" type="application/pdf; length=240906">2018-zwsc-59.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/contract-employment-0">Contract (EMPLOYMENT)</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/labour-act-chapter-2801">Labour Act [Chapter 28:01]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/termination-employment">Termination of employment</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></div> Thu, 18 Oct 2018 09:07:27 +0000 admin 9112 at https://old.zimlii.org Larfage Cement (Zimbabwe) Limited v Chatizembwa (HH 413/18, HC 1998/18) [2018] ZWHHC 413 (18 July 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/413 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>LAFARGE CEMENT (ZIMBABWE) LIMITED</p> <p>versus</p> <p>MUGOVE CHATIZEMBWA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MATHONSI J</p> <p>HARARE, 10 July 2018 and 18 July 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>Ms. Y. Kundodyiwa</em>, for the applicant</p> <p><em>Ms. M. Moyo</em>, for the respondent</p> <p> </p> <p>            MATHONSI J: The applicant seeks summary judgment for the eviction of the respondent and all those claiming occupation through him from residential premises known as no. 16 West Estate, Lafarge Cement in Greendale, Harare. When the respondent received the eviction summons in HC 9669/17 in which the applicant sought to vindicate against the respondent, it being the owner of the premises which the respondent occupies without its consent and authority, the respondent entered appearance to defend and filed a plea. In that plea the defendant admitted losing his employment with the applicant but averred that he was contesting his dismissal and would only vacate the premises if he loses his labour case. He also disputed liability to pay hold over damages on the ground that he never agreed to any rental for the premises.</p> <p>            It is against that background that the applicant has sought summary judgment as it is of the firm view that the respondent possesses no <em>bona fide</em> defence to the eviction claim and that appearance has been entered for purposes of delay. This is because the respondent secured the premises by virtue of his employment by the applicant as a quarry superintendent which employment was terminated on 12 November 2013 following an act of misconduct the respondent admitted having committed. For that reason the respondent cannot continue in occupation of the company house not being an employee of the company.</p> <p>            All the material facts are really common cause. The parties indeed enjoyed an employer-employee relationship until the respondent violated the employer’s code of conduct resulting in him being charged with misconduct. One of the acts of misconduct was that he had left his work place without permission. In fact the respondent had taken a Nissan Hardbody motor vehicle belonging to the employer and driven it to a farm in Ruwa about 25km from his work location on a personal errand and was busted by his boss who later preferred charges against him. When that happened the respondent had, in vain, apologized profusely. He was still dismissed from employment.</p> <p>            The respondent appealed to the Labour Court against the dismissal but had his appeal thrown out by that court by judgment delivered on 24 October 2014, the court concluding that there was no merit in the appeal. The respondent then sought leave to appeal against the judgment of the Labour Court which application for leave was not made timeously and he had to seek condonation. The application for leave was not granted he having defaulted resulting in its dismissal. What the respondent is doing now is to seek a rescission of the default judgment dismissing his application for leave to appeal. So it is not like there is any pending appeal but the respondent is relying on that to contest eviction.</p> <p>            The issue for determination therefore is whether a former employee who was allocated company accommodation by the employer by virtue of his or her employment but has lost that employment is entitled to resist eviction by way of an <em>actio</em> <em>rei vindicatio</em> merely because he or she harbours an intention to contest the dismissal, a dismissal that has been upheld by the Labour Court. The point to note is that there exists no employment relationship between the parties at the present moment, it having been terminated. It is also common cause that the applicant is the exclusive owner of the premises and had only given the premises to the respondent as part of his employment benefits. Can the respondent continue enjoying the benefit of employment under those circumstances?</p> <p>            The principles of the <em>actio rei vindicatio</em> are settled in our law. The owner of property has a vindicatory right against the whole world. It is a remedy available to the owner whose property is in the possession of another without his or her consent. Roman-Dutch law has always protected the right of an owner of property to vindicate his or her property as a matter of policy even against an innocent occupier or innocent purchaser, where the property would have been sold. The occupier would only have the defence of estoppel. See <em>Mashave</em> v <em>Standard Bank of South Africa</em> Ltd 1998 (1) ZLR 436 (S) at 438 C; <em>Chetty</em> v <em>Naidoo </em>1974 (3) SA 13 (A) at 20 A-C; <em>Oakland F Nominees (Pty) Ltd</em> v <em>Gelria Mining and Investment</em> <em>Co Ltd</em> 1976 (1) SA 441 (A) at 452A.</p> <p>            Indeed the principle of the <em>actio rei vindicatio</em> is that an owner cannot be deprived of his or her property against his or her will. All the owner is required to prove is that he or she is the owner and that the property is in the possession of another at the commencement of the action. Proof of ownership shifts the onus to the possessor to prove a right to retention. See Jolly v Shannon and Anor 1998 (1) ZLR 78 (H) at 88 A-B; <em>Stanbic Finance Zimbabwe Ltd</em> v <em>Chivhungwa</em> 1999 (1) ZLR 262 (H); <em>Zavazava &amp; Anor</em> v <em>Tendere</em> 2015 (2) ZLR 394 (H) at 398 G.</p> <p>            Ms <em>Moyo</em> for the respondent submitted that in an application for summary judgment the respondent is not required to prove a defence. All that the respondent is enjoined to do is to show that he has a <em>bona fide</em> defence which, if proved at the trial, would entitle him to succeed. She submitted that the respondent has managed to do so because he had shown that there is a matter pending in which he is challenging his dismissal. I agree with Ms <em>Kandoyowa</em> that there is no appeal which is pending at the moment, and that even if an appeal had been pending in the Labour Court such an appeal would not suspend the decision appealed against by virtue of the provisions of s 92 E (2). That may indeed be academic because the appeal to the Labour Court was dismissed. The respondent cannot return to the Labour Court which upheld his dismissal. As already stated, what his pending in that court is an application for rescission of judgment, not even the judgment dismissing the appeal because that cannot be rescinded it having been made in the presence of the respondent, but the judgment dismissing his application for leave to appeal.</p> <p>            There is therefore no appeal pending and no leave to appeal has been granted. The respondent is holding onto nothing at all as would entitle him to resist eviction. I have stated before that an employee who has lost employment has no right to hold onto the property of the former employer allocated to him or her by virtue of employment or as a condition of employment merely on the grounds that he or she is challenging the termination of the employment contract. See <em>Montclaire Hotel and Casino</em> HH 501-15. The point is also made in <em>William Bain &amp; Co Holdings (Pvt) Ltd</em> v <em>Nyamukunda</em> HH 309-13 that a former employee cannot lawfully confiscate or hold onto a former employer’s property after termination of the employment contract because the right to hold on to the property is extinguished by the termination.</p> <p>            Put in another way, a former employee does not acquire a right of retention as can be used to resist a <em>rei vindicatio</em> on the basis of a challenge of a completed dismissal from employment and a forlorn hope that such dismissal may be reversed at a future uncertain date. This is particularly so in a case such as the present, where the former employee is not even in court properly challenging the dismissal. He is only seeking a rescission of a judgment which denied him leave to appeal. No right arises out of a dismissed appeal especially in a situation where even the leave to appeal against the judgment of the Labour Court has also failed. There is no determination of the contract of employment in this matter which distinguishes it from the case of <em>Zimtrade </em>v <em>Makaya </em>2005 (1) ZLR 427 (H) where this court held that the employer could not seek to repossess its assets from an employee using the <em>rei vindicatio</em> pending the determination of the contract of employment. In this case the contract has already been determined by both the employer’s disciplinary committee and the Labour Court.</p> <p>            It seems to me that the pronouncement of Makarau JP (as she then was) in <em>Medical Investments Ltd </em>v <em>Pedzisayi</em> 2010 (1) ZLR 11 (H) at 114G, 115A is apposite She said:</p> <p>“….where the status of the former employee is without dispute, the <em>rei vindicatio</em> can lie at the instance of the employer in appropriate cases and the matter thereby falls outside the purview of the Labour Court as it is not a matter that can be heard or determined in terms of the Labour Act or any other related enactment. It is my view that the <em>rei vindicatio </em>is not a cause of action whose remedy can be granted in terms of the Act as a stand-alone remedy in the absence of a dispute that is specifically provided for under the Act.”  </p> <p> </p> <p>            The learned Judge was making the point that the High Court has jurisdiction to determine the claim for the recovery of the employer’s property in the hands of a former employee even though the dispute was of a labour nature. She also made the crucial point that where the contract of employment has been determined the <em>rei vindicatio </em>can be used by the employer to recover the property. It is that right which the employer seeks to enforce by summary judgment in this case.</p> <p>            Summary judgment is an extra-ordinary and indeed drastic remedy in the sense that it negates the right of a litigant who has expressed a willingness to access the court and defend an action to do so. It is however a deliberate remedy designed to deny a <em>mala fide</em> defendant the benefit of the <em>audi alteram partem </em>rule simply because the plaintiff’s claim would be unassailable. Therefore, where the proposed defences of the defendant to the claim are clearly unarguable both in fact and in law, the drastic remedy of summary judgment is availed to the plaintiff. See <em>Chrisma </em>v <em>Stutchbury and Anor</em> 1973 (1) RLR 277 (SR) at 279.</p> <p>            It is settled that in order to defeat a summary judgment application the respondent must disclose facts upon which his or her defence is based with sufficient clarity and completeness so as to persuade the court that if proved at the trial, will constitute a defence to the claim. It is also settled that not every defence raised by a defendant will succeed in defeating a plaintiff’s claim for summary judgment. It must be a <em>bona fide </em>defence stated with sufficient clarity and completeness to allow the court to determine whether the opposing affidavit discloses a <em>bona fide</em> defence. See <em>Kingston Ltd </em>v <em>L D Ineson (Pvt) Ltd </em>2006 (1) ZLR 451 (S) at 458 F-G. </p> <p>            In my view what the respondent has raised, that he is still fighting his dismissal at the Labour Court even though that court dismissed his appeal and denied him the right to appeal to the Supreme Court against that judgment, is not a <em>bona fide</em> defence at all. If raised at the trial it will not succeed because the applicant is the undisputed owner of the property which has a vindicatory right in respect of that property. A dismissed employee has no right of retention in respect of the property where the employment contract has been terminated and there is no case pending in that regard. The applicant is entitled to summary judgment. Ms <em>Kundodyiwa</em> for the applicant abandoned the claim for hold over damages content to pursue the eviction only.</p> <p>            In the result, it is ordered that:</p> <ol> <li>Summary judgment be and is hereby entered in favour of the plaintiff for the eviction of the respondent and all those claiming occupation through him from 16 West Estate, Lafarge Cement, Greendale Harare.</li> <li>Costs of suit.   </li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Hussein Ranchhold &amp; Co</em>, applicant’s legal practitioners</p> <p><em>Mabundu &amp; Ndlovu Law Chambers</em>, respondent’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/2018/413/2018-zwhhc-413.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21741">2018-zwhhc-413.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/2018/413/2018-zwhhc-413.pdf" type="application/pdf; length=123928">2018-zwhhc-413.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/dismissal">dismissal</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/lawful-dismissal">Lawful dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-summary-judgment">application for summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-eviction-summary-judgment">claim for eviction (Summary judgment)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/actio-rei-vindication">actio rei vindication</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/harare-high-court/2015/501">Montclair Hotel &amp; Casino v Mukuhwa (HC 6258/12) [2015] ZWHHC 501 (09 June 2015);</a></div></div></div> Wed, 05 Sep 2018 12:26:59 +0000 admin 9095 at https://old.zimlii.org Clover Leaf Motors Group (Private) Limited v Zhou & Another (HH 241-18, HC 1063/17) [2018] ZWHHC 241 (10 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/241 <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>CLOVER LEAF MOTORS GROUP (PRIVATE) LIMITED</p> <p>versus</p> <p>BUTHOLEZWE ZHOU</p> <p>and</p> <p>PATRICE SHAYAMANO</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAKUNYE J</p> <p>HARARE 11 October 2017 &amp; 10 May 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>J R Tsivama,</em> for the applicant</p> <p><em>M Mandikumba,</em> for the 1st respondent</p> <p>No appearance for the 2nd respondent</p> <p> </p> <p> </p> <p>CHITAKUNYE J. This is an application for the return of applicant’s motor vehicles that it had issued to respondents during the tenancy of their employment with applicant.</p> <p>The two respondents were employed by the applicant as Group Accountant and Branch Accountant respectively until 31 October 2015 when their services were terminated on notice.</p> <p>During the tenancy of their employment contracts the respondents had been issued with motor vehicles for both business and private use on terms set out in their contracts as read with applicant’s motor vehicle policy.</p> <p>The first respondent was issued with a Nissan Qushquai Registration No. ACX 4888 and the second respondent was issued with a Nissan Almera Registration No. ACU 6164.  They were both obliged to return the motor vehicles upon termination of their contracts of employment.  When their contracts were terminated on 31 October 2015 both respondents did not return the vehicles. Instead they filed a complaint of unfair dismissal against the applicant.  Their effort in that direction was unfruitful as the labour court, on the 23rd September 2016, held that the applicant was entitled to terminate the contracts on notice and instead ordered that the respondents be paid compensation for loss of employment in terms of section 12 (4b) as read with section 12 C (2) of the labour Act, [<em>Chapter 28:0</em>] as amended.</p> <p>Neither respondent appealed against the labour court judgement hence that decision remained extant to this day.</p> <p>Despite not having appealed against the labour court judgment, the respondents refused to surrender the applicant’s motor vehicle. It was in such circumstances that applicant approached this court in this application seeking an order in the following terms:-</p> <ol> <li>The respondents shall surrender to the applicant or its authorised representative a Nissan Qushquai registration No. ACX 4888 and a Nissan Almera Registration No. ACU 6164 respectively within 24 hours of service of this order.</li> <li>Should the respondents fail or refuse to surrender the said vehicles the Sheriff be and is hereby authorised to utilise the services of the police to repossess the said vehicles.</li> <li>The respondents shall pay the costs of this application on a legal practitioner and client scale.</li> </ol> <p>Upon being served with the application the second respondent duly surrendered the vehicle that had been allocated to him. The first respondent on the other hand opposed the application.</p> <p>The first respondent contended that after being appointed as Branch Accountant on 1 March 2009, he was subsequently appointed Company Secretary for another company, Clover Leaf Panel Beaters (Pvt) Ltd (herein after referred to as CLPB) which appointment was made before he had completed his probation period with applicant. This was done without cancelling his appointment as branch accountant with applicant. The appointment as company secretary was, however, verbal. He averred that the applicant and CLPB are two different companies but with common ownership. When he was promoted to the position of Group Accountant he also continued as company secretary for CLPB.</p> <p>He further contended that when the vehicle was issued to him, he used it to carry out duties for the two companies. Upon termination of his contract with applicant, he retained the vehicle as his terms of contract with CLPB also entitled him to a motor vehicle. According to first respondent it was not clear as to which company had issued him the vehicle.</p> <p>In the light of the purported employment by CLPB, first respondent contended that the present application is fatally defective for non-joinder of CLPB as applicant was well aware of his issue with CLPB.</p> <p>It is my view that this point <em>in limine</em> was without merit. The applicant made it clear in its founding affidavit that CLPB was its subsidiary and that by virtue of being the Group Accountant, the first respondent was required to provide secretarial duties to CLPB. It was part of his duties and not that he was now separately employed by that subsidiary company. As will later on be discussed the applicant’s stance was well corroborated by other features of the parties’ relationship.</p> <p>It may also be noted that. In terms of rule 87 (1) the non-joinder of a party is not fatal. Rule 87 (1) states that:</p> <p>“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”</p> <p> </p> <p>In <em>casu</em>, the issue between applicant and first respondent can easily be decided without the involvement of CLPB.</p> <p>A further point <em>in limine</em> raised was that the applicant is approaching court with dirty hands as it has not paid first respondent his terminal benefits in terms of section 13 of the Labour Act, [<em>Chapter 28:01</em>].</p> <p>It is my view that the principle of dirty hands is inapplicable in the circumstances of this case. The first respondent himself has been in unlawful possession of applicant’s motor vehicle from the date of termination of employment. The applicant has not refused to release the terminal package but has simply asked first respondent to surrender applicant’s motor vehicle. It is the attitude of the first respondent that led to the delay in the payment of his terminal benefits, and in my view he cannot turn around and seek to benefit from his own intransigent attitude.</p> <p>These points <em>in limine</em> were thus without merit and are accordingly dismissed.</p> <p>In his response on the merits the first respondent admitted that his contract with applicant was terminated on 31 October 2015. He however contended that he has a right of retention of the motor vehicle by virtue of the fact that he is still employed by CLPB. He nevertheless conceded that he has not been providing any services to the applicant or to CLPB since the date of termination of contract.</p> <p>Upon a perusal of the papers filed of record, with the exception of a purported answering affidavit as it was fatally defected, I was of the view that first respondent is desperately clutching at straw.</p> <p>It is trite that an owner of a property is entitled to vindicate it from whoever is in possession thereof without his consent. In <em>Chetty </em>v<em> Naidoo</em> 1974 (3) SA 13 (A) at 14 it was aptly stated that:-</p> <p>“It is inherent in the nature of ownership that possession of the <em>res</em> should normally be with the owner unless he is vested with some right enforceable against the owner (e.g. a right of retention or contractual right)”</p> <p> </p> <p>In <em> Nyahora </em>v<em> CFI Holdings (Pvt) Ltd</em> 2014 (2) ZLR 607 (S) at 613 C-E ZIYAMBI JA aptly reiterated the legal position as follows:-</p> <p>“The action <em>rei vindicatio</em> is available to an owner of property who seeks to recover it from a qperson in possession of it without his consent. It is based on the principle that an owner cannot be deprived of his property against his will. He is entitled to recover it from any one in possession of it without his consent. He has merely to allege that he is the owner of the property and that it was in the possession of the defendant/respondent at the time of commencement of the action or application. If he alleges any lawful possession at some earlier date by the defendant then he must also allege that the contract has come to an end. The claim can be defeated by a defendant who pleads a right of retention or some contractual right to retain the property.”</p> <p> </p> <p>See also <em>Jolly v Shannon</em> 1998(1) ZLR 78(H) and <em>Arundel School Trust </em>v<em> Pettigrew</em> 2014 (1) ZLR 596 (H) and <em>Musanhi </em>v<em> Mt Darwin Rushinga Co-operation Union</em> 1997(1) ZLR 120 (SC)</p> <p>In the present case the applicant alleged it is the owner of a motor vehicle in first respondent’s possession. Such possession came about as a result of a contract of employment which contract was terminated on 31 October 2015. The motor vehicle had been issued to first respondent in terms of the contract of employment in particular clause 19 which provided that:-</p> <p>“You shall be allocated a company vehicle for business and private use. All private trips outside the radius of 60km from your official residence should be authorised by the Managing Director.”</p> <p> </p> <p>The first respondent having been issued with the motor vehicle in terms of the above contract was required to return the vehicle upon termination of the contract.</p> <p>In <em>Zimbabwe Broadcasting Holdings </em>v<em> Gono</em> 2010 (1) ZLR 8 (H) at 9 GOWORA J (as she then was) made this point clear in stating that:-</p> <p>“Our law is to the effect that once an employee has been suspended or dismissed from employment, any benefits extended to such employee from that relationship cease. In <em>Chisipite Schools Trust (Pvt)</em> <em>Ltd </em>v <em>Clark</em> 1992 (2) ZLR 324(S) GUBBAY CJ stated:-</p> <p>‘Pending the removal of the suspension, the respondent was not entitled to the continued enjoyment of the benefits comprising the free occupation of the Headmistress’ house and the continued use of the motor vehicle. A labour relations officer cannot order the respondent to surrender these particular benefits. Consequently, the applicant being unable to resort to self-help approached the High Court for relief. I consider it was justified in doing so.</p> <p>I respectively associate myself with the remarks of the learned chief justice.”</p> <p> </p> <p>The above epitomises the situation that should obtain upon termination of employment between employer and employee <em>vis-a-vis</em> benefits that were being enjoyed by the employee prior to the termination. It is unfortunate that the plethora of case authorities on this subject has not deterred litigants from clinging onto what should rightfully be returned to the employer.</p> <p>            Where, as in this case, a right of retention is pleaded, the onus is on the respondent to show that he enjoys such a right. The respondent must establish such right and its basis.</p> <p>The first respondent’s contention was to the effect that his right of retention is derived from the fact that besides being employed by applicant he had also been employed by CLPB as company secretary and this employment was not terminated. He averred that when he was issued with the motor vehicle it was not clear which company had issued him the motor vehicle. He thus used the vehicle to perform duties for both companies.</p> <p>This, in my view, is a lame excuse for the continued possession of the vehicle despite the owner’s demand for its return. The applicant made it clear that first respondent was employed by it and his duties as Group Accountant included providing secretarial duties to CLPB.  CLPB is in fact a subsidiary of applicant.</p> <p>This fact is further confirmed by the fact that first respondent’s remuneration was paid by applicant; hence when the contract was terminated no remuneration was paid to first respondent. Also the first respondent ceased providing secretarial services to CLPB upon termination of the contract with applicant.</p> <p>This position was also made abundantly clear to 1st respondent in a letter dated 27 November 2015 by applicant’s legal practitioners when responding to first respondent’s inquiry through Likbridge Consultancy Services. In their letter of 27 November 2015 applicant’s legal practitioners stated, <em>inter alia</em>, as follows:-</p> <p>“We refer to your letter dated 21st November 2015 addressed to the Human Resources Manager for Clover Leaf Motors. We advise that your said letter was handed to us with instructions to respond to its contents.</p> <p>We note that in its response to your earlier letter our client’s Human Resources Manager explained that the secretarial duties that Mr Butholezwe Zhou was carrying out for Clover Leaf Panel Beaters were actually part of his employment duties as the Group Accountant for Clover Leaf Motors. With respect, this is more than adequate explanation on why and how such services would be automatically terminated once the employment contract has come to an end.”</p> <p>The first respondent seemed to confirm this when he conceded that he was never remunerated for the CLPB secretarial duties. Unlike his appointment as branch accountant on 1 March 2009 and appointment as Group Accountant, the so called appointment as company secretary for CLPB was done verbally. In fact he never applied for such a position in CLPB. This buttresses the applicant’s argument that the secretarial duties first respondent was performing for CLPB were in fact part of his duties as the Group Accountant. This entity called Clover Leaf Panel Beaters was a subsidiary of the Clover Leaf Motors.</p> <p>It may also be noted that the first respondent did not categorically deny that he was issued the vehicle by applicant. He simply said it mattered little, if at all, who between applicant and CLPB would provide the motor vehicle and further that ‘there was no clarity as to by whom I was given the motor vehicle.’</p> <p>The first respondent was simply being untruthful as he should surely have known that it was the applicant that had issued him the motor vehicle in terms of Clause 19 of the contract of employment he had signed. In any case the first respondent admitted in his opposing affidavit that he had in fact offered to buy the vehicle from applicant at some point. If he did not know the owner or if the applicant was not the owner, how could first respondent offer to buy the vehicle from a non-owner? I am convinced that 1st respondent feigned ignorance on this point simply to protract his continued hold onto the motor vehicle.</p> <p>The first respondents further contended that he has a right of retention of the motor vehicle based on the fact that he has not been paid his terminal benefits  as stipulated in section 12 C (2) of the Labour Act. This argument is also without merit. It is common cause that after applicant had terminated first respondent’s contract as at 31 October 2015, the 1st respondent was enjoined to surrender the vehicle as of that date. His retention and use of the motor vehicle thereafter was unlawful. The first respondent’s challenge of the termination did not entitle him to the continued use of the vehicle. See <em>Chisipite Schools Trust (Pvt) Ltd </em>v <em>Clark (supra).</em> The challenge of the termination had the effect of delaying the release of the terminal benefits as 1st respondent was challenging it.</p> <p>The applicant on the other hand had to await the outcome of first respondent’s challenge of the termination which was only finalised on 23 September 2016. In the meantime applicant had called on the respondent to surrender the vehicle to no avail.</p> <p>In their letter of 9 January 2017 addressed to first respondent’s legal practitioners, the applicant’s legal practitioners reiterated the applicant’s readiness to release the terminal benefits upon the respondent surrendering the vehicle. Para 3 of that letter reads as follows:</p> <p>“We hereby place it on record that your client’s termination packages are available and the only reason they have not been released is the vehicles that they have continued to unlawfully hold on to. In the circumstances your clients are hereby ordered to bring the said vehicles within twenty four (24) hours of this letter to facilitate an inspection of the same before the release of the terminal packages due to them in terms of the Labour Act.”</p> <p> </p> <p>When the parties appeared before me for the hearing, the applicant’s counsel made it very clear that his client was ready and able to pay the terminal benefits in terms of the labour Act but would want first respondent to produce the vehicle for inspection as he has been unlawfully holding onto the motor vehicle for a long time. Counsel for the parties agreed to seek inspection of the vehicle by a 3rd party. Unfortunately nothing came of this as 1st respondent would not abide by what the legal practitioners had conceded was an amicable way of resolving the issue. It was clear to me that first respondent, despite unlawfully holding onto the motor vehicle, was not intent on resolving the issue. This then exposes his dilatory attitude by raising frivolous and vexatious issues as defences to the application.</p> <p>The lack of <em>bona fide </em>on the part of the first respondent made it imperative that applicant first be assured that the vehicle was still available and on its state before releasing the terminal benefits to first respondent. That stance is reasonable in the circumstances of this case. If first respondent was sincere he would surely have surrendered the motor vehicle and been paid his terminal package without much ado.</p> <p>After hearing the parties and considering the merits of the application, I am of the view that the first respondent’s opposition has no merit. The opposition was not bona fide at all but was meant to frustrate the applicant in recovering its vehicle. It was an abuse of court process warranting censure. He clearly is unlawfully holding onto applicant’s motor vehicle. He simply has no defence and has unnecessarily caused applicant to bring this application at great expense. It is only proper that first respondent be ordered to pay costs on the higher scale of legal practitioner and client scale as requested by applicant.</p> <p>Accordingly it is hereby ordered that:</p> <ol> <li>The 1st respondent shall surrender to the applicant or its authorised representative a Nissan Qushquai motor vehicle registration number ACX 4888 within twenty four (24) hours of the service of this order.</li> <li>Should the 1st respondent fail or refuse to surrender the said motor vehicle, the Sheriff be and is hereby directed to repossess the said motor vehicle and deliver same to applicant.</li> <li>The 1st respondent shall pay costs of this application on a legal practitioner and client scale.</li> </ol> <p> </p> <p> </p> <p><em>Sawyer &amp; Mkushi,</em> applicant’s legal practitioners</p> <p><em>Muringani, Mandikumba &amp; Partners</em>, Respondent’s legal practitioners</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/harare-high-court/2018/241/2018-zwhhc-241.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29666">2018-zwhhc-241.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/2018/241/2018-zwhhc-241.pdf" type="application/pdf; length=148952">2018-zwhhc-241.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/dismissal">dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/termination-employment">Termination of employment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/actio-rei-vindication">actio rei vindication</a></li></ul></span> Fri, 29 Jun 2018 13:57:07 +0000 admin 8953 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 ZIMRA v Mudzimuwaona (SC 4/18, Civil Appeal No. 176/13) [2018] ZWSC 4 (28 July 2014); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2014/4-0 <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>REPORTABLE</strong><strong>        (3)</strong></p> <p><strong>ZIMBABWE     REVENUE     AUTHORITY</strong></p> <p><strong>v</strong></p> <p><strong>CHESTER     MUDZIMUWAONA</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>CHIDYAUSIKU CJ, GOWORA JA &amp; MUTEMA AJA</strong></p> <p><strong>BULAWAYO, </strong>28 JULY 2014</p> <p><em>T. Magwaliba</em>, for the appellant                                                                                         </p> <p><em>C. Mucheche</em>, for the first respondent</p> <p><strong>                        GOWORA JA</strong>:  This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course. The following are the reasons for the order.</p> <p>                        The facts arising in this matter are that in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:</p> <p>“upon successful completion of the probation period the employment contract shall run for a further period of 24 (twenty-four) months after which the authority , may at its sole discretion offer you permanent employment on such terms and conditions as determined by it at the time.”</p> <p>                        The literal meaning of that clause is that the respondent’s contract was subject, first to the successful completion of the probation period and then would terminate at the end of 36 month. </p> <p>                        In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment. He was arraigned before a disciplinary committee and was found guilty of both charges. He was as a consequence dismissed from employment. He appealed to the appeals committee without success.</p> <p>                        The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court <em>a quo</em> ordered the appellant to reinstate the respondent without loss of salary or benefits and, in the event that reinstatement was no longer tenable, to pay damages in <em>lieu</em> of reinstatement. This decision was not appealed against. Instead, the parties decided to negotiate the <em>quantum</em> of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification. He claimed that when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee. The appellant opposed the quantification on the basis that the respondent was employed on a fixed term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract. The Labour Court ruled in favour of the respondent and ordered the appellant to pay:</p> <ul> <li>US$ 19 740.16 as back-pay and benefits</li> <li>Twelve (12) months’ salary that the respondent would have earned in August 2011 minus US$150.00 earned by the respondent per month for a period of twelve months.</li> </ul> <p>The appellant was aggrieved by the decision and with the leave of this court has appealed the order of the court <em>a quo</em>. It is criticized for the following reasons:</p> <ul> <li> </li> </ul> <p>-           failing to give proper weight to the fact that when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.</p> <ul> <li> </li> <li> </li> </ul> <p>-           failing to distinguish between a permanent employee and an employee on a fixed term contract in its quantification of damages, especially after finding that the respondent did not have a legitimate expectation to be offered permanent employment.</p> <ul> <li> </li> </ul> <p>-           in failing to deduct the US$150.00 earned by the respondent per month for a period of twelve (12) months from the total amount awarded as back pay and benefits.</p> <ul> <li> </li> </ul> <p>-           in rejecting the evidence of the appellant’s expert witness on the factual issues and accepting that of the respondent and his witness on unclear grounds.</p> <p>                        The respondent raised three preliminary objections to the appeal. The objections were respectively that, the notice of appeal did not state the correct date of judgment, the grounds of appeal were not clear and concise and, lastly, that the grounds of appeal did not raise questions of law. The respondent abandoned the first objection after conceding that the notice of appeal in point of fact reflected the correct date of judgment.</p> <p>                        The other two points were dismissed by the court.  Quite apart from the fact that in mounting the objections, the respondent sought to rely on the Supreme Court Rules, 1964 which are not applicable to appeals from the Labour Court, in attacking the grounds of appeal, the point that the grounds of appeal were not clear and concise had no merit. The respondent was unable to show to this court in what way the grounds of appeal were not clear and concise. The grounds set out by the appellant may have been inelegantly drafted but they articulate the basis upon which the appeal is founded.</p> <p>                        Regarding the point taken that the grounds of appeal were not on a question of law, the court was of the view that the point was improperly taken. The issue of what is a question of law has been addressed in a plethora of cases. See for example, <em>Muzuva v United Bottlers (Pvt) Ltd </em>1994 (1) ZLR 217 (S) and <em>Hama v National Railways of Zimbabwe </em>1996 (1) ZLR 664 (S).</p> <p>                        The respondent submitted that the appellant should have expressly stated in its grounds of appeal that the factual findings of the court <em>a quo</em> are gross as to amount to a question of law.  In <em>Reserve Bank of Zimbabwe v Granger and Anor</em> SC 34/01, MUCHECHETERE JA (as he then was), at page 5 to 6 of the cyclostyled judgment, said:</p> <p>“An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”</p> <p>These remarks were qualified by GARWE JA in <em>Zvokusekwa v Biita Rural District Council</em> SC-44-15 as follows:</p> <p>“In my view, the remarks made in Granger’s case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.  One must, I think, be guided by the substance of the grounds of appeal and not the form.  Legal practitioners often exhibit different styles in formulating such grounds.  What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.” </p> <p>                        The essential principle outlined above is that regard must be had to the substance of a ground of appeal as opposed to its form in order to determine whether it raises a question of law. The court was of the view that the grounds of appeal raised by the appellant in essence attacked the alleged failure by the court <em>a quo</em> to consider relevant facts which failure led to an error at law. The grounds complied with the requirements of s 92F of the Labour Act [<em>Chapter 28:01</em>] and therefore the point <em>in limine</em> was dismissed.</p> <p>                        On the merits the issues which are pertinent in the determination of the appeal are the following:</p> <ul> <li>Whether or not the court <em>a quo</em> correctly applied the principles on fixed term contracts;</li> </ul> <p>(b) Whether or not the respondent had a legitimate expectation of being offered employment on a permanent basis;</p> <ul> <li>Whether or not the court drew a distinction between a permanent employee and one on a fixed term contract in its quantification of damages; and</li> <li>Whether or not the court grossly misdirected itself in respect of the factual findings it arrived at on the evidence presented.</li> </ul> <p>                        It was the appellant’s contention that the court <em>a quo</em> erred in law by quantifying damages as if the respondent was a permanent employee prior to his dismissal, yet it is clear from the contract of employment that he was on a fixed term contract. One of the first categoric statements on the assessment of damages for unlawful dismissal was enunciated by GUBBAY CJ in <em>Gauntlet Security Services v Leonard</em> 1997 (1) ZLR 583 (S) in which he said:</p> <p>“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his Contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.”</p> <p>The remarks by the learned judge show that in assessing damages for unlawful termination of an employment contract,  the court has to place the employee in the position he would have been save for the premature termination of the contract. This is in line with the object of damages which is to place a party in the position he or she would have been save for the premature termination of the contract . This position was aptly captured in <em>Goedhals v Graaff-Reinet Municipality</em> 1955 (3) S.A 482 in which HALL J, at 487C-E said;</p> <p>“The general principle upon which damages are to be assessed was laid in <em>Victoria Falls and Transvaal and</em> <em>Power Co. Ltd v Consolidated Langlaate Mines Ltd</em> 1915 A.D. at p 22, where it is stated that, so far as possible, the person injured must be placed in the same position as he would have been if the contract had been performed. On this principle it appears to me that the question which the trial court would have to decide in order to assess damages in this case is what would the opportunity of finding water be worth to the plaintiff under the circumstances of the case.”</p> <p>                        What is derived therein is that damages are awarded for what can be termed as expectation loss. There was no dispute between the parties regarding the nature of the respondent’s contract of employment with the appellant. Thus his status was never in issue. His was a fixed term contract. Further, it was not in dispute that when he was dismissed his contract only had six months before it was due to expire.</p> <p>                        Mr <em>Mucheche</em> conceded, properly in my view, that a distinction had to be drawn between reinstatement to a contract without limit of time and one that was of fixed duration. He however, detracted from this concession by submitting that there should be no distinction between the two when considering consequential damages arising out an unlawful termination of a contract of employment.</p> <p>                        <em>In casu</em>, the contract of employment signed by the parties as outlined above, was for a duration of 36 months, which point was conceded by the respondent.  This means that the relationship between the parties was expected to expire on the last day of the 36th month. The appellant submitted that based on the principles of law that one is compensated for the loss he suffered as a result of the breach, the respondent was entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of the contract. This is the correct position.  Damages for unlawful termination in relation to an employee who was on a fixed term contract ought to be calculated in relation to unexpired period of that contract. This position is fortified in <em>Myers v Abramson</em> 1952 (3) SA 121 (C) in which, in relation to damages for breach of a fixed term contract of employment, the court stated the following:</p> <p>“The measure of damages accorded such employee is, both in our law and in the English law, the actual loss suffered by him represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.’ (at 127 D-E).”</p> <p>The standard in <em>Myers v Abramson</em> intimates that an employee will be entitled to his proven actual damages, which is the loss of income for the unexpired period. The court <em>a quo</em> awarded the respondent damages in <em>lieu</em> of reinstatement for a period of 12 months yet the remaining period was six months. The court <em>a quo</em> failed to take cognisance of the fact that damages in lieu of reinstatement, are in fact, a substitute of reinstatement. The question that ought to have exercised its mind is; if the respondent were to be reinstated, what would be the period of his engagement in terms of the contract? The answer is obviously six months because it is clearly stated in the contract that it was for the duration of 36 months.</p> <p>The court also accepted the appellant’s reasoning that the court <em>a quo</em> in making the order it made, actually created a new contract for the parties. That was a violation of the principle of sanctity of contracts. In <em>Book v Davidson</em> 1988(1) ZLR 365(S), the sanctity of contracts was discussed as follows:</p> <p>“There is however another tenet of public policy, more venerable than any thus engrafted onto it under recent pressures, which is likewise in conflict with the ideal of freedom of trade. It is the sanctity of contracts ...  If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider - that you are not lightly to interfere with this freedom of contract ... to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken is, prima facie at all events, contrary to the interests of any and every country.”</p> <p>The above dictum shows that the principle of sanctity of contracts confines the court only to interpreting a contract and not creating a new contract for the parties. It entails that the court should respect the contract made by the parties and give effect to it.</p> <p>                        The dispute between the parties does not and cannot extend beyond the life span of the contract. Clearly, the court a quo misdirected itself in extending the dispute beyond the life of the contract. If a contract is for a fixed term it automatically expires at the end of the specified period unless the parties thereto mutually agree to its termination. So too do any obligations entered into for performance by the parties to the contract. By accepting that the dispute of the parties did not extend beyond the life of the contract, Mr <em>Mucheche</em> was in effect conceding that there was no place for a claim for consequential damages. Such claim could only properly arise if there was a legitimate expectation that the respondent would be offered permanent employment, which was never the contention.</p> <p>                        What is at issue is the computation of damages for the unexpired period of the contract. In terms of clause 3.1 of the contract the appellant had the sole discretion in deciding whether or not to offer the respondent a permanent position. When the respondent was dismissed the appellant had not exercised that discretion. As a consequence the court a quo ought to have given effect to that clause. Its failure to do so meant that it was extending the period of the contract on its own volition contrary to the wishes of the parties as expressed in the contract. It was therefore a serious misdirection on its part to award damages for a period beyond the date of termination as stipulated in the contract. The court a quo completely ignored the agreement that had been entered into between the parties which stipulated the duration of the relationship between the parties.</p> <p>It should also be noted that in the absence of a finding that the respondent had a legitimate expectation that he would be given a permanent contract, there was no justification for the method it used to quantify damages. The respondent had not completed his training period at the time that he was dismissed and he had failed two core courses which he resat for examinations in 2005 and failed. He would only be competent to be employed on a permanent basis after successfully completing the training. Paragraph 9 of the Zimbabwe Revenue Authority Staff Training and Development Policy provides:</p> <p>A Revenue Trainee who fails to successfully complete level 2 and has a negative mentor’s report will have his/her contract of employment terminated at the end of the prescribed traineeship period. However, in exceptional cases or on recommendation by a mentor/supervisor, he/she may be given one chance to re-sit the failed subject<em>.</em></p> <p>He did not deny that he had rewritten the required examinations and that he had failed a second time. His explanation upon being shown the examination scripts was that he had forgotten having written the said examinations. Against these clear admissions it was therefore a serious misdirection on the part of the court to accept a contention from the respondent that he had only seen the 2005 examination scripts for the first time in court when the appellant produced them. From what is stipulated in the policy, it is clear that the respondent’s employment would have been terminated at the end of the 36 months because he had failed the examinations.</p> <p> </p> <p>There was no basis upon which the respondent could have at law been entitled to more than what he would have earned during the unexpired period of his contract with the appellant and thus there was no legal basis upon which the court <em>a quo</em> made the order it did. It is for the above reasons that we allowed the appeal and made the following order:</p> <ol> <li>The appeal be and is hereby allowed with costs.</li> <li>The order of the Labour Court is set aside and the following is substituted:</li> </ol> <ul> <li>The appellant shall pay the respondent the amount of US$1 470.00 as back-pay and benefits less US$900.00 earned by the respondent from informal jobs over a period of six months.</li> </ul> <p><strong>CHIDYAUSIKU CJ (Deceased)                  </strong>I agree</p> <p><strong>MUTEMA AJA         (Deceased)                  </strong>I agree</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/2014/4/2018-zwsc-4.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41108">2018-zwsc-4.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/2014/4/2018-zwsc-4.pdf" type="application/pdf; length=131172">2018-zwsc-4.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/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/termination">Termination</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fixed-term-contract">fixed term contract</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/dismissal">dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lawful-dismissal">Lawful dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/salaries-and-wages">Salaries and wages</a></li></ul></span> Thu, 26 Apr 2018 09:37:29 +0000 admin 8763 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