Discipline re: Disciplinary Hearings iro Misconduct Outside the Workplace and Misdeeds During a Contractual Lacuna

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

On 21 July 2015, I registered an arbitral award in favour of the applicant which was in the following terms:

“It is ordered that;

1. The arbitration award attached hereto, and granted in favour of the applicant on the 29th of October 2014, be and is hereby registered as an order of this Honourable Court.

2. The respondent be and is hereby ordered to pay the applicant $11,448=88 plus interest of 5% per annum from the date of the arbitral award up to the date of full payment.

3. Respondent shall pay costs of this application at a higher scale if it opposes the application but if it does not oppose the application each party to bear its own costs.”

The respondent has appealed against the registration of the award and has asked for my written reasons for registration.

A summary of the case is in order.

The applicant obtained an arbitral award in his favour for unfair dismissal. He was dismissed for tarnishing the image of the Zimbabwe Manpower Development Fund (ZIMDEF) by failing to pay his personal debts and drawing public attention by being pursued by the Messenger of Court at his workplace.

His conduct was deemed, by the employer, to be inconsistent with the conditions of his employment.

He disputed being guilty of misconduct on the basis that these were private debts and the charges stretched too far and were unfair.

The Messenger of Court had threatened to attach the employer's property and had disrupted business.

The arbitrator's finding was that the failure to repay debts did not justify disciplinary proceedings. The arbitrator's view was that allowing the charges to stand would set a bad precedent for labour relations.

The arbitrator who did the calculations of what was due to the applicant, who was different from the original arbitrator, ordered that he be paid $11,448=88 plus interest at 5% per annum from the date of the arbitral award to the date of full payment.

The applicant sought registration of the award in order to compel the respondent to comply with the award.

The respondent had opposed the registration in the initial instance, on the grounds that there was a pending application for interim relief in the Labour Court and that the Labour Court should be given an opportunity to make a ruling on the application for interim relief pending before it. It was argued that registration would render the Labour Court application nugatory.

It was also argued, by the respondents, that a litigant who has taken advantage of the procedure to seek interim relief would suffer the very harm from he had sought protection.

In addition, the respondent also highlighted, in its application, that it had a general appeal pending on the matter in the Labour Court besides its interim application.

At the hearing of this opposed application, on 21 July 2015, the applicant drew attention to the fact that the pending application for stay of execution pending appeal, upon which the respondent had resisted registration on the basis that it would be rendered nugatory, had since been heard and dismissed on 17 April 2015 under LC/H/349/14. As such, it was the applicant's argument that there was no basis upon which to refuse to grant registration.

The applicant further argued that the respondent's standpoint, that to register the award would be against public policy, also lacked merit.

The respondent, on the other hand, acknowledged dismissal of the application for interim relief but emphasized that it had filed an application for leave to appeal the dismissal of its application for interim relief. As a result of this pending application for leave to appeal, it was argued that I should not register the award.

Furthermore, it was the respondent's argument that the main appeal on the award had yet to be heard.

In addition, it was maintained that to register the award would be against public policy on the basis that the manner in which the calculation of the award had been done would result in tax avoidance.

At the same time, the respondent was adamant that the process that had been initiated in the Labour Court, in terms of the challenge to the arbitral award, should certainly not be ignored.

The applicant, however, resisted the respondent's argument that registering the award would be against public policy on the basis that, as this was a labour matter, Article 34 and 36 of the Uncitral Model Law set out in the Schedule to the Arbitration Act [Chapter 7:15] was not applicable.

This was said to be because the Arbitration Act and its provisions apply to matters referred to compulsory arbitration in terms of section 98(2) of the Labour Act. Reliance for this viewpoint was placed on the case of Samudzimu v Dairibord 2010 (1) ZLR 357 (H).

More significantly, the respondent put forward the argument that gone are the days when this court could argue that it cannot interfere with a labour matter as it has now been constitutionally as a court of original jurisdiction.

It was emphasised that this court therefore had jurisdiction to determine a labour matter.

Authority for this standpoint was placed on the case of Confederation of Zimbabwe Industries v Rita Marque HH125-15 whereby MATHONSI J held that section 171(1)(a) of the Constitution of Zimbabwe had reinstated the jurisdiction of the High Court in labour matters which had been ousted by section 89(6) of the Labour Act [Chapter 28:01].

Section 89(6) of the Labour Act essentially provides that no court, other than the Labour Court, shall have jurisdiction to hear and determine labour matters - which include applications and appeals.

Section 171(1)(a) of the Constitution, which is argued to have altered this position, provides that “the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

Jurisdiction of a court essentially refers to the authority that a court has to hear and determine a dispute that is brought before it. This is in distinction to the court's “inherent power” to do something as dealt with by section 176 of our Constitution.

In terms of this section, the Constitutional Court, the Supreme Court, and the High Court all have inherent powers “to protect and regulate their own process and to develop the common law or customary law taking into account the interests of justice and the provisions of this Constitution.”

Such inherent powers can thus be inherent procedural powers or inherent substantive powers and are exercised on the premise that the court in question already has jurisdiction in the first place.

Thus, regulation of process, as exhorted by section 176 of the Constitution, would be largely an exercise of inherent procedural powers; while development of common law and customary law, as per section 176 of the Constitution, would be largely an exercise of inherent substantive powers.

The respondent's argument was founded on the jurisdictional authority of the High Court, in terms of section 171(a) of the Constitution, to hear and determine a civil matter, in this instance, a labour dispute.

It was against the backdrop of the jurisdictional argument that I formulated the decision to grant the order of registration.

I took into consideration the argument advanced by the respondent, that, this court is now fully empowered to hear such labour matters as a court of original jurisdiction.

As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) of the Constitution does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force, that, in reality, places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court “jurisdiction over labour matters as conferred by an Act of Parliament.”

The applicable Act of Parliament, in labour matters, is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction, in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said that at least, in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171 of the Constitution.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful “need” for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters.

It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.

Ordinarily, existing legislative mechanisms that are in place would logically need to be followed unless there exist strong reasons for intervention or unless a reading of any specific provision suggests otherwise in terms of the jurisdiction question: see, for instance, Mapini v Omni Africa (Pvt) Ltd HH494-13 and also the discussion in Derdale Investments (Pvt) Ltd v Econet Wireless (Private) Ltd & Ors HH656-14.

Generally, it would also be amiss to lose sight of a major reason behind the creation of the Labour Court: which was that it would be a specialist court on labour issues.

More significantly, in casu, the Labour Court had already been approached as a court of original jurisdiction in terms of the appeal and interim relief sought, in keeping with legislative intention.

The approach to the High Court was registration-related because when it comes to registration of labour awards, the Labour Court clearly lacks jurisdiction as the legislature gives this power to Magistrates' Courts and the High Court depending on the value of the award.

Registration of awards, in terms of section 98(14) of the Labour Act, is, therefore, an area of Labour Law where the statute endows the Magistrate Court and the High Court with registration jurisdiction: see Trust Me Security Org v Mararike & Ors HH325-14.

Also, Articles 34 and 36 of the Unictral Model Law, Schedule to the Arbitration Act [Chapter 7:15] empower the High Court as the forum to set aside an award on specified grounds.

For the court to intervene on the basis of public policy, however, the infringement of public policy would have to be palpably outrageous. The approach is to construe public policy restrictively: see Zimbabwe Posts (Pvt) Ltd v Communications & Allied Services Workers Union HH60-14; Makonye v Ramodimoosi & Ors HH52-14; Wei Properties (Pvt) Ltd v S & T Export & Import (Pvt) Ltd HH336-13.

The respondent's reasons, in this case, were that an alternative claim for damages in lieu of reinstatement had not been made.

The principle is indeed where reinstatement has been ordered that damages be stated as an alternative to reinstatement.

This argument was put forward against the backdrop of an outstanding appeal in which the basis of the appeal is that the dismissal of the applicant was warranted. As such, the appeal should be heard since dismissal of the applicant is the real gist of its grievance.

The Appeal Court will, needless to say, address the way forward on damages such as by ordering remittal for this issue to be addressed by the arbitrator if deemed necessary.

Appeals should not be heard through the back door.

Another grievance said to justify non-registration was that the computation of tax should have been done on the whole figure instead of piece meal as the piece method employed amounted to tax evasion.

In my view, this was an issue which, if the respondent felt strongly about, should have raised with the arbitrator within 30 days of receipt of the award.

I say this because Article 33(1)(a) of the Unictral Model Law, Schedule to the Arbitration Act [Chapter 7:15] permits a party, on notice to the other party, to request the arbitral tribunal to correct any error in computation among other errors.

The respondent's argument lacked merit and was simply one of convenience and avoidance.

In any event, this court lacked the necessary details to engage effectively with this assertion. I was therefore of the view that, overall, this was not a case of compelling need that justified intervention.

Furthermore, in allowing registration, I took into account that with interim relief having been denied, the applicant also stood on firmer ground than the respondent.

In terms of section 92E(2) of the Labour Act [Chapter 28:01], the general legal position is that an appeal does not suspend the decision appealed against.

Also, in terms of section 92E(3) of the Labour Act, pending such determination, the Labour Court may make such interim determination as the justice of the case demands: see Giya v Ribi Tiger Trading HH 57-14.

In this case, the Labour Court had already decided, at the time I heard the application for registration, that interim relief did not meet the justice of the case.

The respondents heads of argument had been very clear that the application for interim relief, which was pending at the time it filed its case, was central to its opposing registration.

What was therefore instructive in registering the award was the fact that the application for stay of execution had been dismissed. It remained extant since it had not been stayed or suspended: see Greenland v Zimbabwe Community Health Intervention Research Project HH93-13.

Accordingly, the above were my reasons for registering the applicant's arbitral award.

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

The delay in handing down judgment in this matter, especially considering the manner in which the matter will be disposed of, is most sincerely regretted.

The appellant employed the respondent as a Security Officer.

It has appealed against the entire judgment of the Labour Court (“the court a quo”) handed down on 14 September 2012. The judgment allowed an appeal by the respondent against the decision of the appellant's disciplinary committee (“the committee”) which found him guilty of misconduct and dismissed him from employment.

THE FACTS

On a date that is not material, the respondent allegedly gave copies of his payslips to a former employee of the appellant who was involved in a labour dispute with the appellant. The payslips were duly attached as evidence by the former employee to his court papers which were served on the appellant.

Thereafter, the appellant charged the respondent with two counts of misconduct for breaching Clause 8.5 of the Zimbabwe Newspapers Company Code of Conduct. Specifically, the respondent was accused of committing any act, misconduct or omission inconsistent with the express or implied conditions of employment and acting in conflict with the Group Business or Editorial Policies.

I note, in passing, that, the single act gave rise to two separate charges neither of which was preferred in the alternative, a glaring irregularity that was not adverted to by either of the parties at the hearing of the matter, as it offends the rule against the splitting of charges.

The issue was not raised with counsel and it cannot be a point on which this appeal may turn.

In his written response to the charges, the respondent denied that he had furnished the former employee with his payslips for personal use.

He appeared before a disciplinary committee on 19 November 2010.

At the hearing of the matter, the respondent argued, that, the disclosure of a payslip was not an act of misconduct specifically provided for in the code of conduct. He further argued, that, the prohibition against disclosure of a payslip was only introduced after he had been charged.

At the end of the hearing, the disciplinary committee found that the copies of the pay slips attached to the former employee's application appeared to belong to the respondent; that two witnesses testified that the respondent had admitted to them that he had given his payslips to the former employee; and that the respondent, in furnishing his payslips to the former employee, was being disloyal to the employer.

On the basis of these findings, the committee duly found the respondent guilty and dismissed him from employment.

I also note at this stage, that, there was no specific finding by the disciplinary committee that the respondent knew, at the time he allegedly gave his payslips to the former employee of the appellant, that his conduct was prohibited. It was the finding of the disciplinary committee, that, by giving his pay-slips to the former employee, the respondent acted disloyally.

Aggrieved by that decision, the respondent appealed to the Group Chief Executive Officer. He raised a number of grounds of appeal:

(i) The first was that the “offence involving payslips” was not provided for in his contract of employment or the code of conduct and that the endorsement on all payslips that they are “private and confidential” only appeared after his conviction and not before.

(ii) Secondly, the respondent argued, that, there was no evidence of any wrongdoing on his part and that the charges preferred against him were contrary to public policy as the appellant wanted to further its illegal practice of underpaying workers, and, as such, the respondent was not obliged to protect such an interest.

The respondent also alleged, that, the verdict of guilty went against the weight of evidence in that the former employee testified that he had not received the payslips from the respondent and no evidence was led to controvert such testimony.

He also attacked the procedure adopted in sentencing him alleging that he was not called upon to mitigate before the penalty was imposed on him.

Finding no merit, the appellant's Group Chief Executive Officer dismissed the appeal.

He found, that, the offence was provided for in the appellant's code of conduct and that the disclosure of payslips, or copies of pay slips, to any third party, is inconsistent with the implied conditions of the employment contracts of all the appellant's employees and in direct conflict with the interests of the Group.

He found, that, the burden of proof was on the respondent to prove that he did not give his payslips to the former employee. It was his finding that the respondent had failed to discredit the evidence that his pay-slips were found attached to the former employee's court papers.

The Group Chief Executive Officer relied on the minutes of the disciplinary committee hearing in holding that the respondent had made an admission to the two witnesses called by the appellant.

PROCEEDINGS A QUO

Still dissatisfied, the respondent noted an appeal to the court a quo on a multiplicity of grounds, nine in total. Only three of those grounds of appeal raised issues of law.

In essence, they raised the issue whether the respondent's conduct, if proved, amounted to an act inconsistent with the express or implied conditions of his contract of employment.

This is so because the respondent's conduct complained of occurred immediately before the condition that payslips were private and confidential was introduced. This, in addition to the other issues, was a live issue that had to be determined.

Using somewhat different language, the court a quo also identified the issue of whether the conduct of giving a payslip to a third party, prior to their being endorsed “private and confidential” constituted a misconduct.

The court a quo regarded it as the sole issue for determination.

In a rather terse judgment, the court a quo upheld the appeal on essentially three premises, namely:

1. That, the respondent, and all other employees of the appellant, were not aware that furnishing their payslips to another was conduct inconsistent with the terms of their employment.

2. That, there was no evidence on record to prove that the respondent had given his payslips to the former employee.

3. That, the failure to allow the respondent the opportunity to mitigate before the pronouncement of a penalty was incurably bad and vitiated the entire proceedings.

PROCEEDINGS BEFORE THIS COURT

The roles were immediately reversed. Dissatisfied with the decision of the court a quo, it became the appellant's turn to appeal to this court.

It attacked the decision a quo on several bases:

(i) First, that the court a quo erred in finding that the respondent was not properly charged.

(ii) Second, that it erred in finding that the respondent was not aware that the confidential nature of the payslips did not have to be spelt out.

(iii) Third, that it erred in finding that there was no adequate evidence before the disciplinary committee that the respondent had given his payslips to the former employee.

(iv) Lastly, that the court a quo erred in finding that the failure to mitigate vitiated the proceedings as dismissal was the only appropriate penalty in terms of the Code of Conduct.

At the commencement of the hearing of the appeal, counsel for the appellant made an oral application to amend the prayer in the Notice of Appeal.

Counsel desired to insert words to provide for an order that the appeal be allowed. He did so upon a realization that this was omitted in the prayer contained in the Notice of Appeal.

Counsel for the appellant submitted, that, no prejudice will be suffered by the respondent if the amendment is granted especially as the respondent's counsel had not even picked up the defect in the prayer. In fact, the respondent had prepared to meet the appeal without regard to the defect.

While acknowledging that he had not even noticed the defect, counsel for the respondent opposed the application for the amendment.

He submitted, that, the Notice of Appeal must clearly set out the relief sought. If it fails to do so, it is null and void and cannot be amended for the reason that one cannot amend a nullity.

For his part, counsel for the appellant was quick to concede that the prayer is defective as it does not meet the requirements of Rule 37(1)(e) of the Supreme Court Rules 2018. He, however, refuted that the defect is one which renders the appeal a nullity.

In his view, the court is empowered, by Rule 41, to allow an amendment to the grounds of appeal or to any pleadings filed before it, presumably including a prayer.

ANALYSIS

It has been stated, repeatedly, by the courts, that, a failure to comply with the mandatory provisions of the Rules when lodging an appeal renders the appeal a nullity: see Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).

Generally, where a Notice of Appeal does not comply with the Rules, the matter ought to be struck off the roll. This is because a nullity cannot be amended: see Chikura N.O. & Anor v Al Shams Global BVI Ltd SC40-17.

The belated application for an amendment is meant to bring the appeal within the remit of Rule 37(1) which requires, that, every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner which shall state, inter alia “the exact relief sought.”

The relief sought by the appellant in this case is couched in the following words:

“WHEREFORE appellant prays that the judgment of the court a quo be altered to read as follows –

'The appeal be and is hereby dismissed.'”

If the proposed amendment is granted, the prayer will read:

“WHEREFORE the appellant prays that the appeal be allowed with the judgment of the court a quo altered to read as follows -

'The appeal be and is hereby dismissed.'”

The concession made by counsel for the appellant, that the prayer is defective, is properly made.

The question however is whether the application should be granted. Put in another way: can the defective prayer be amended?

This Court was confronted with a similar situation in the case of Ndlovu & Anor v Ndlovu & Anor SC133-02. In that case, the prayer in the Notice of Appeal was couched in the following terms:

“…, that the judgment of the court a quo be dismissed with costs.”

Writing for the court, MALABA JA…, followed the reasoning in Jensen v Acavalos 1993 (1) ZLR 216 (S)…,.

He observed, that, the Notice of Appeal was clearly defective as there was no mention whether the whole or only part of the judgment was being appealed against and the exact nature of the relief sought.

At p2 of the cyclostyled judgment, he stated:

“In this case, there was no mention of whether the whole or part only of the judgment was being appealed against. The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case, it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”

The court concluded, that, the notice of appeal, which purported to institute the appeal “was incurably defective.” As there was no appeal before the court, the matter was struck off the roll with costs.

The case of Ndlovu & Anor v Ndlovu & Anor SC133-02 is on all fours with the present matter.

It has not been suggested that a departure from the case is called for. It settles this matter because the prayer is incurably defective. It cannot be amended.

DISPOSITION

A Notice of Appeal which does not meet the requirements of the Rules of court is fatally defective and invalid. A fatally defective compliance with the Rules on the filing of an appeal cannot be condoned or amended.

The appellant's Notice of Appeal suffers the fate of all fatally defective appeals.

Having come to the conclusion, that, there is no valid appeal before the court, there is no basis for relating to the merits.

In the result, it be and is hereby ordered as follows:

1. The matter is struck off the roll.

2. The appellant shall bear the costs.

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

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.There were no appearances for the second and third respondents.FACTUAL ...

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.

There were no appearances for the second and third respondents.

FACTUAL BACKGROUND

The appellant was employed by the first respondent as its Chief Executive Officer (hereinafter “CEO”) between the period 2009 until the dissolution of its Board in 2013.

The appellant had been employed on a contractual basis with his subsisting contract having been renewed in May 2011.

On 14 November 2013, the then Acting Secretary for Information, Media and Broadcasting Services, wrote to the appellant placing him on leave with full pay until further notice. The letter stated, that, the appellant was placed on leave due to the exacting challenges faced by the first respondent which required urgent intervention through a full audit of its affairs. The appellant was barred from visiting the first respondent's premises or issuing any instructions to its staff.

On 30 January 2014, the appellant was notified of the allegations of misconduct against him which were said to have been unearthed during the audit. The initial decision to place the appellant on paid leave was rescinded and substituted with leave without pay pending determination of the allegations against him.

On 18 November 2014, the appellant was duly served with a notice by the first respondent's legal representatives, to attend a disciplinary hearing to be presided over by the second respondent.

The appellant faced 32 charges of misconduct which were contained in a schedule attached to the notice of the hearing.

When the disciplinary proceedings began, the first respondent abandoned 21 of the charges against the appellant, leaving only 11.

At the hearing, the appellant argued, that, it was not competent for the first respondent to undertake disciplinary proceedings based on allegations flowing from an expired employment contract.

This argument was based on his interpretation of the Labour (National Employment Code of Conduct) Regulations 2006 (hereinafter “SI15/2006”).

Counsel for the appellant contended, that, for a person to be properly charged with misconduct, he or she must still be an employee in terms of a subsisting employment contract at both the time of the commission of the offence and institution of misconduct proceedings.

He further submitted, that, what were now termed acts of misconduct had been properly approved by the first respondent's Board.

Counsel further submitted, that, the integrity of the disciplinary proceedings was further thrown into doubt by the direct role played by the Minister of Information Media and Broadcasting Services, who initiated his suspension.

The first respondent disputed the appellant's contention that it sought to improperly charge him in terms of an expired employment contract.

It averred, that, the parties were engaged in a continuous employment relationship which was highlighted by the renewal of the appellant's contract in May 2011. Counsel for the first respondent placed reliance on the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12, whose import was that an employment relationship becomes continuous where the contract of employment is renewed immediately upon the expiry of a preceding one.

Accordingly, he argued, since the acts of misconduct in question were committed during the subsistence of an employment relationship between the parties, the appellant was properly charged.

The disciplinary hearing, chaired by the second respondent, found the appellant guilty of misconduct in respect of 7 of the 11 charges levelled against him. These were counts 1, 2, 3, 6, 7, 21 and 23 on the charge sheet.

It is not in dispute that the second respondent did not pronounce the verdict of dismissal against the appellant. This was, rather, done by the first respondent.

Dissatisfied with the disciplinary hearing's decision, the appellant filed an application for review in the Labour Court.

The basis of the application was that there was gross irregularity, gross irrationality, and illegality in the manner that the disciplinary proceedings were conducted and the decision reached.

In particular, the appellant alleged gross irregularity and irrationality, or, alternatively, illegality based on its review grounds 1.1 – 1.4. He went on to allege gross irrationality, and, alternatively, illegality and procedural irregularity on the basis of a second set of review grounds, that is, grounds 3 - 3.5.

While the manner the review grounds are formulated is somewhat confusing, it is apparent that the appellant effectively submitted two sets of review grounds, each with its own alternative grounds for review.

The court a quo did not advert to the second set of review grounds (nor the alternative thereof), but, determined the matter on the basis of the first set which alleged irregularity in the proceedings as follows:

1. A number of charges levelled against the appellant related to alleged acts of misconduct arising from a contract of employment which had expired;

2. The first respondent, at all material times, either directed or approved all acts of the appellant which were then later deemed as misconduct on his part;

3. The proceedings were initiated by the Minister of Information Media and Broadcasting Services who was not a party to the contract of employment; and

4. The first respondent improperly imposed a penalty before the disciplinary proceedings were completed, contrary to SI15 of 2006 and section 12B(4) of the Labour Act [Chapter 28:01].

The appellant consequently sought nullification of the disciplinary proceedings and reinstatement as an employee of the first respondent.

The court a quo dismissed the appellant's application for review.

It held, that, the acts of misconduct in question were committed during the subsistence of the parties employment relationship.

The court found, that, the appellant did not adduce any evidence to disprove the claim that he enjoyed a continuous employment relationship with the first respondent during the period 2009 to 2013. It stated, that, the renewal of the contract, in May 2011, did not vary the essential terms of his employment as he remained both the Principal Accounting Officer and Chief Executive Officer (CEO) of the first respondent.

For this finding, the court cited an excerpt from the case of Van Der Post v Twyfelhock Diamond Prospecting Syndicate (1903) 20 SC 213 to the effect, that, where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document.

The court a quo also relied on Air Zimbabwe v Chiku Mensa & Anor SC89-10 as an authority supporting its decision to uphold the outcome of the disciplinary proceedings.

It was stated in that case, that, a person guilty of misconduct should escape the consequences of his misdeeds because he is innocent, not because of a failure to conduct proceedings properly by another employee.

In relation to the appellant's third ground of review, the court held, that, the disciplinary proceedings conducted by the second respondent were not vitiated by virtue of the Minister of Information and Media Broadcasting (and not the first respondent, his former employer) having authored the letter of suspension. The court took the view, that, the absence of a letter of suspension was, in any case, not fatal to the conduct of disciplinary proceedings. It cited in this respect the following sentiments of the court in Shumbayaonda v Ministry of Justice Legal and Parliamentary Affairs and Anor SC11-14:

“…,. Suspension is not a prerequisite to the holding of disciplinary proceedings, and, a disciplinary hearing does not have to take place during the period of suspension….,.”

Finally, in so far as the final ground of review was concerned, the court a quo quoted the part of the second respondent's written decision of 15 April 2015, that specifically convicted the appellant of acts of misconduct 1,2,3, 6,7, 21 and 23. The excerpt also indicated that the second respondent had dismissed some preliminary issues raised on behalf of the appellant. A chronological analysis of the events that then ensued satisfied the court a quo, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings, as alleged by the appellant.

In the final result, the court a quo reached the decision that the disciplinary proceedings against the appellant had not been irregularly conducted.

Aggrieved by the judgment of the court a quo, the appellant approached this Court on appeal. He prays that the decision of the court a quo be set aside and substituted with an order granting the application for review and setting aside both the disciplinary proceedings and his dismissal. His grounds of appeal are set out as follows:

1. The court a quo erred and misdirected itself in law in holding, that, under the Labour National Employment Code of Conduct Regulations, 2006, S.I.15 of 2006, the appellant could be charged with, and convicted of alleged acts of misconduct arising from an expired contract.

2. The court a quo erred in law in failing to find that the first respondent, through its various agents, either directed or approved all the acts of the appellant which were then later construed as misconduct. The court a quo ought to have found, that, the first respondent could not regard, as misconduct, the actions it either directed or approved.

3. The court a quo erred and misdirected itself in law in failing to hold, that, it was not competent for the first respondent to impose the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.

4. The court a quo fell into an error of law in failing to find that the appellant's conviction was contrary to the evidence that was placed before the disciplinary authority....,.

Whether or not the court a quo erred at law by making the finding that the appellant could be charged with acts of misconduct arising from an expired contract of employment

Counsel for the appellant submitted to this Court, that, in terms of SI15 of 2006, it is not competent for an employee to be charged with acts of misconduct purportedly committed during the currency of an expired contract of employment.

He emphasised, that, a fixed-term contract of employment lapses automatically on the date of its expiry, and, as a result, there was no such thing as the renewal of a fixed term contract.

Rather, so the argument goes, the old contract lapses and an entirely new contract comes into being.

Counsel contended that S.I.15/2006 employs a rigid scheme that provides an avenue for an employer to terminate an existing contract of employment owing to its serious breach by the employee.

Further, that, a person ought to still be an employee in terms of a subsisting contract of employment at both the time of the commission of the offence and the institution of misconduct proceedings by the employer.

He averred that the misconduct contemplated by section 4 of SI15/2006 as read with section 6 of the same statutory instrument refers to a subsisting employment contract.

Save for his own interpretation of these provisions, counsel cited no authority to support his assertions in this respect.

Nevertheless, on those grounds, it was counsel's submission, that, only one out of the 11 charges brought against the appellant was competent as it was allegedly committed during the currency of his existing contract.

He went on to argue, that, it was improper to combine in the same proceedings, alleged acts of misconduct relating to an expired contract of employment and a subsisting one. That being the case, counsel contends the first ground of appeal ought to succeed since the charge relating to the subsisting contract could not be severed from the others.

In response, counsel for the first respondent disputed and challenged the appellant's strict interpretation of SI15 of 2006 concerning the effect of the expiry of a contract that is immediately renewed without interrupting the employee's work nor the employment relationship between the parties.

Counsel submitted, that, the relevant provisions of S.I.15 of 2006, if properly interpreted, would not protect an employee who committed acts of misconduct during a previous contract of employment, from being charged with such misconduct during the currency of a subsequent contract.

Counsel further submitted, that, in any case, there was no cessation in the employment relationship enjoyed by the parties.

The contract renewal in May 2011 was essentially on the same terms as when the appellant was engaged as the first respondent's Chief Executive Officer (CEO) and Principal Accounting Officer.

He contended, that, the acts of misconduct only came to light following the appellant's suspension and consequent audit proceedings. Counsel submitted, that, it was competent to charge the appellant in respect of acts of misconduct committed during the currency of his prior contract as he enjoyed a continuous employment relationship with the first respondent.

Counsel for the first respondent bemoaned the dearth of judicial pronouncements in our jurisdiction on the issue of whether or not it is competent to charge an employee with acts of misconduct committed during the currency of an expired employment contract which is immediately replaced with a new one on substantially the same terms.

He sought to argue, that, an employment contract, to begin with, was a contract and thus subject to the basic tenets of the law of contract. He placed reliance on the case of Van Der Post v Twyfelhoek Diamond Prospecting Syndicate (1903) 20 SC 213 where the following was held:

“Where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document, and, where there is doubt as to the meaning, they should be read together to determine the intention of the parties and the same principles of interpretation should be applied in the case of any other contract.”

My reading of this case, however, suggests that it was concerned with a very different set of circumstances to those at hand.

The contracts in issue in that case were neither related to an employment relationship nor were they successive in the sense of one expiring and a new one immediately replacing it. More significantly, the case was concerned about how to interpret seemingly contradictory provisions in a number of concurrent contracts governing the sale of a property. Hence. the finding that such contracts, for purposes of interpretation of their respective provisions, should be treated as one.

The case is therefore distinguishable from the one at hand, where, the question of interpreting any provisions of the appellant's expired and subsequent employment contacts did not arise.

However, the court finds the other authority cited by the first respondent to be entirely persuasive in casu.

This is the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12.

The employee in that case, a lecturer on a fixed term contract, was charged with misconduct and subjected to a disciplinary hearing on 5 July 2011. Despite this, after his contract expired, on 14 July 2011, it was immediately renewed for a further year with effect from 15 July 2011. That contract was due to expire on 17 July 2012.

However, the employee was subsequently dismissed from employment on 19 September 2011 based on the disciplinary proceedings held on 5 July 2011.

The dismissal was effected during the subsistence of the renewed fixed term contract while the disciplinary proceedings had been conducted during the employee's previous contract.

Similar arguments to those made for the appellant in casu, were advanced before the court in Lesotho. It was argued for the employee, that, because the dismissal was executed after the expiry of his previous contract, his employer was in breach of the employment contract since the employee could not be accused of incidents that happened during the currency of an otherwise expired contract.

On the other hand, the University argued, that, when the employee's contract expired and was renewed on 15 July 2011, the employment contract became continuous, thus giving the employer every right to take disciplinary steps against him.

Unlike in our jurisdiction, where there is no provision directly addressing the issue, counsel for the University relied on a provision in the country's Labour Code Order 1992 which defined 'continuously employed' as follows:

“…, means employed by the same employer, including the employer's heirs, transferees, and successors in interest for a period that has not been interrupted for more than four weeks in each year of such employment, during which four-week period there was no contract of employment in existence and no intention of the employer to renew it once that period has elapsed….,.”

The court then found, on the basis of this provision, that, upon renewal of his contract, the employee's employment had become continuous, meaning he could properly be charged with acts of misconduct committed during the currency of his expired fixed term contract.

The court finds merit in the first respondent's submissions on the interpretation to be given to sections 4 and 6 of the Labour (National Employment Code of Conduct) Regulations 2006 SI15/2006.

It is also persuaded by counsel's submissions concerning the existence of a continuous employment relationship between the appellant and the first respondent, and its effect on the propriety or otherwise of the charges of misconduct brought against the former. This is notwithstanding the lack of any statutory provision similar to the one in Lesotho. The principle coming through from the Lesotho case, and the ratio therein, the court finds, can properly be adopted in casu.

The Labour (National Employment Code of Conduct) Regulations 2006, SI15/06 deals with misconduct under section 4 where its introductory part reads as follows:

“An employee commits a serious misconduct if he or she commits any of the following offences…,.

(a) Any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract; or

(b)–(h)…,.”

The section is read together with the operative part of section 6 of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15/06 which states the following:

“6(1) Where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may…,.”

The court is not persuaded that the interpretation ascribed to these provisions by the appellant is correct.

The appellant was an employee of the first respondent in terms of the old contract up until midnight of the last day of the contract. In other words, he literally went to bed as the first respondent's employee and woke up still its employee on essentially the same terms of employment, albeit, under the terms of a new contract.

He proceeded to report for work as usual, and to carry out his duties.

It has not been averred, that, he picked up any terminal benefits attendant on the expiry of the old employment contract.

Thus, notwithstanding the technicality concerning the dates of expiry and renewal of the contracts in question, the employment relationship continued.

It is to be noted, that, this employment relationship started in 2009. The court a quo pertinently observed, that, the appellant had not adduced any evidence to prove that, for the period 2009 to 2013, he was not in a continuous employment relationship with the first respondent.

Against this background, to then suggest, as the appellant does, that 'employee' for purposes of sections 4 and 6 of the Labour (National Employment Code of Conduct) Regulations 2006, SI15 of 2006 refers only to one who both commits and is charged with the misconduct in question, during the currency of a subsisting contract and not a previous one, is to advocate for an absurdity.

For, it would mean, that, an unscrupulous employee, who is confident of a new employment contract upon the expiry of a current one, can commit, with impunity, a serious act of misconduct that he knows would only be discovered after his contract has expired and a new one has taken effect.

Going by the appellant's interpretation, and irrespective of any consequent damage to the employment relationship between the parties (since he would have revealed himself as an unworthy employee), the offending employee would not only be allowed to get away with it, but the employer would also, perforce, have to retain him as an employee under the new contract.

It is an accepted principle of the law, that, the Legislature is presumed not to intend any absurdity to arise in the interpretation of the laws that it enacts.

This point is highlighted thus in Webster Tongoona Rushesha & Ors v Alexious Mashingaidze Dera & Ors CC24-17:

“It is a sound principle of the law, that, when interpreting a statutory provision, the court must be alive to the presumption that the legislature does not intend irrational or unreasonable results. The interpretation of a statute and indeed a Constitution is based not only on what the provision says but also on what the provision does not say….,.”

Applied to the circumstances at hand, the court holds, that, the absence from sections 4 and 6 of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15 of 2006 of words expressly including an employee who might have committed acts of misconduct during the currency of a previous employment contract, does not detract from the intended meaning of the two provisions in question.

Accordingly, the absurdity alluded to could not have been in the contemplation of the Legislature.

A contract of employment, renewed immediately after an expired one, normally is indicative of the trust and confidence that the employer has in the employee's ability and competence in the performance of his/her work.

By no stretch of the imagination should the renewal of a contract be seen as a means to wipe away any acts of misconduct committed by the same employee during the currency of the previous contract or contracts where such acts only come to light after the expiry and renewal of the old and new contracts respectively.

Such a position would be untenable and clearly inimical to the well-being of any enterprise, business, or other employer/employee concern.

To the extent that it would amount to rewarding, rather than punishing an errant employee, it runs counter to the letter and spirit of sections 4 and 6 of the Labour (National Employment Code of Conduct) Regulations 2006, SI15/06.

These provisions are concerned with bringing to book an employee who has committed an act of misconduct.

Pertinently, at the time that he was charged with the acts of misconduct in question, the appellant was, in any event, an employee of the first respondent, and not an ex-employee.

The court therefore finds, that, the appellant fell squarely into the category of employees referenced in sections 4 and 6 of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15/06. This is notwithstanding the fact, that, the acts of misconduct in question were committed during the currency of the appellant's previous contracts of employment.

As for the continued working relationship between the parties, the court finds the following excerpt instructive concerning the relationship between a contract and the employment relationship that it creates between the employer and employee:

“…, the employment contract brings into being the relationship that labour legislation seeks to regulate. However, the agreement no longer forms the exclusive basis for determining their subsequent rights and obligations; once parties have concluded an employment contract, the content and duration of the ensuing relationship are regulated, to a considerable extent, by statute. The employment relationship is thus something distinct from and wider than the contractual relationship. The contract of employment may therefore be regarded as little more than the founding act of a relationship the content and duration of which is regulated by statute, regulation, or collective agreement.”…,.

See JOHN GROGAN's 'Workplace Law' 11th Ed…,.

Relating this to the circumstances of this case, the position is confirmed, that, the appellant cannot rely solely on his previous contracts of employment to argue that he cannot be charged with any act of misconduct committed during the currency of those contracts.

On the basis of the authority cited above, the expired contracts no longer formed the exclusive basis for determining the parties subsequent rights and obligations.

It follows, that, the first respondent was within its rights to charge the appellant with all acts of misconduct committed during the employment relationship that stretched from and beyond the expired contracts, into the new contact.

To the extent that it may be salutary to have a provision to that effect, there seems to be a lacuna in our law regarding the issue of whether a party can be dismissed for acts of misconduct committed under a prior employment contract by the same employer.

It is apparent, that, the appellant seeks to escape the consequences of his misconduct on the strength of a grey area in the existing legislation.

He should not be allowed to do so, but must be made to face the consequences of his actions.

When all is told, the court finds to be unassailable, the conclusion reached by the court a quo, that, the appellant was engaged in a continuous employment relationship with the first respondent at the time that he was charged with the acts of misconduct in question.

That relationship survived the expiry of his previous contract of employment and seamlessly extended into his new contract.

That being the case, the court is satisfied that the appellant was properly charged with the acts of misconduct in question, and that, procedurally, he was properly convicted.

The appellant's ground of appeal on this issue is without merit and is accordingly dismissed.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

MAKARAU JCC:This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by ...

MAKARAU JCC:

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.

Background

We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.

The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.

Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:

“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but

(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”

Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.

By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.

The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.

They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.

In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.

At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application....,.

At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

3. There shall be no order as to costs.”...,.

Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21....,.

It is common cause, that, the third respondent did not, and correctly so, allege that any of the judges of this Court, in their respective capacities as Acting Constitutional Court judges, or as substantive judges of this Court for that matter, had exercised the option, as had the Chief Justice, to continue in office for an additional five years after they each attained the age of seventy.

Perchance, for a myriad of reasons, some of the judges may not exercise the option.

Clearly, there was no evidence placed before the High Court that one or more of the judges had an intention of so doing at the time the application a quo was filed.

A necessary and material averment to complete the cause of action against the judges, other than the Chief Justice, was therefore missing.

Thus, whilst the cause of action against the Chief Justice may have been complete, it was not in respect of the other judges - even for the declaration of any future or contingent rights of the judges.

In the absence of a sustainable cause of action against the judges, the citing of the judges and the order sought against them was not only unwarranted but was also incompetent and undeserved....,.

There is a discernible disconnect between the manner in which the judges were cited and the relief that was sought against them.

Whilst the judges of this Court were cited nomine officio as Supreme Court judges, albeit acting as Constitutional Court judges, the relief sought was claimed against them personally and individually. Indeed, the order sought has since followed them individually and collectively to this Court.

Furthermore, we emphasise the point, that, at the time when the orders a quo were handed down, i.e. on 15 May 2021, five of the judges of this Court were substantive judges of the Supreme Court while acting as judges of the Constitutional Court. Subsequently, they were appointed as substantive judges of this Court on 20 May 2021, after section 186 of the Constitution was amended and after the above-mentioned orders were handed down.

Consequently, as of that date, the judgment and orders a quo would have ceased to have been applicable to or binding upon them in their personal capacities. There was therefore no legitimate basis for seeking their recusal in the present matter as their personal rights and interests, then or in the future, could no longer have been in issue.

Finally, and, in any event, an interpretation of section 186 of the Constitution in a suit against the Chief Justice alone would have been binding on all other similarly circumstanced judges.

This is a trite position at law.

The relief sought a quo was an interpretation of the Constitution which is binding on all persons as it is a declaration of what the law is. There was thus no need to cite, in addition to the Chief Justice, the judges of this Court, or any other judge for that matter, in the application a quo.

On the basis of the above, we venture to suggest, that, the legally inelegant citation of the judges a quo, and the subsequent application for the recusal of this entire Bench on the basis of such, was not made in good faith but merely to place this court in an exceedingly embarrassing position.

We find, therefore, that, the citing of the judges of this Court, a quo, was both procedurally and substantively maladroit.

SC62-17 : PAUL GARWE vs THE PUBLIC SERVICE COMMISSION
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA JA

This is an appeal against a decision of the Labour Court which dismissed an appeal against the appellant's dismissal from employment.BACKGROUNDThe appellant was employed by the respondent as the Senior Payroll Clerk in the Audit Division of the Salary Services Bureau. Sometime in 2002, the appellant applied for a loan ...

This is an appeal against a decision of the Labour Court which dismissed an appeal against the appellant's dismissal from employment.

BACKGROUND

The appellant was employed by the respondent as the Senior Payroll Clerk in the Audit Division of the Salary Services Bureau. Sometime in 2002, the appellant applied for a loan from a moneylender, Dollartech Finance, hereafter referred to as Dollartech. He furnished Dollartech Finance with his pay slip in support of the application. His application was successful and he was granted the loan. Dollartech faced difficulties in having the monthly repayment deducted from the appellant's salary as his net salary was insufficient for the purpose.

The matter was brought to the attention of the respondent by Dollartech Finance. The appellant was charged with misconduct in terms of paragraph 13(d) of the First Schedule (Section 2) of the Public Service Regulations, 2000 - dishonesty including falsifying or attempting to falsify any document with fraudulent intent or uttering forged document. The allegation was that he used a fake September 2002 pay-slip to borrow money from Dollartech Finance and the amount could not be deducted because his net salary was insufficient.

The appellant was called upon to submit a written reply to the allegations. He complied. He wrote a letter on 21 February 2003.

A disciplinary hearing was held on 2 July 2004. The disciplinary committee found the appellant guilty of the misconduct charged and recommended his discharge from employment. The pertinent portion of the record of the disciplinary committee's proceedings reads:

“The Committee noted that:-

(1) Mr Garwe, in his letter of response to the allegations had shown that he felt ashamed of all what happened, he apologized, in the same letter, to the whole Department and Government as a whole for the image that could have been tarnished by his actions. He made an assurance that he would not do it again.(sic)

(2)…,.

(3)…,.

(4)…,.

(5) Mr Garwe's response before the Committee was inconsistent to his letter of response to allegations leveled against him. (sic)….,.

The committee found Mr Garwe guilty of an act of misconduct of dishonesty including falsifying or attempting to falsify any document with fraudulent intent or uttering forged document. This is in terms of section 13(d) of the First Schedule (Section 2) of the Public Service Regulations 2000. (sic)

Committee's Recommendations

The Committee recommended that Mr Garwe be discharged from the Public Service Commission Secretariat.”

After the disciplinary committee hearing, the appellant allegedly fell ill from August 2004 until sometime in early 2005. During this period of illness, and specifically on 29 October 2004, the appellant submitted a letter from his doctor to his employer, requesting early retirement on medical grounds.

On 11 May 2005, the appellant received a letter of even date by the Salary Services Bureau informing him of the decision of the employer, following the disciplinary hearing of 2004, to dismiss him from the Public Service. The final paragraph of the letter advised the appellant as follows:

“Section 51(1)(b) of the Public Service Regulations 2000 provides that if you are not happy with this determination and penalty, you are free to either appeal against this determination and penalty or both to the Labour Relations Tribunal or request the Commission, in writing, through the Secretary, to review the determination or penalty or both within 21 days of this minute.”

The appellant requested a review of the proceedings.

The appellant's request for review does not form part of the record. His grounds for review are captured in the Public Service Commission's record of proceedings of April 2006 as follows:

“Mr Garwe submitted the following as his grounds for review:-

(a) That there was an inordinate delay in the manner in which the case was handled. He was charged in February 2003, a disciplinary committee was appointed more than a year later and the determination was made in May 2005. This prejudiced him as memories fade and witnesses changed residence;

(b) That the disciplinary committee was chaired by Mr Chitambara who had earlier on received the complaint from Dollartech Finance. He investigated the matter and actually promised the complainant that disciplinary action was going to be taken. He was therefore biased;

(c) That members who constituted the disciplinary committee were appointed by the Secretary to the Commission even though the Commission was not the disciplinary authority;

(d) That the disciplinary committee found him guilty without the production of the alleged fake pay-slip. The pay-slip was not produced as documentary evidence when he was charged and neither was it produced at the disciplinary hearing;

(e) That Salary Service Bureau concerned itself with dishonesty that was not directed at the employer and had not arisen during the course of duty. Further, failure to repay a loan was only misconduct if the loan was owed to the State, a statutory fund or a local authority;

(f) That the department should not have concerned itself with what members do with their pay-slips;

(g) That the misconduct charge was not properly framed to enable him to respond from an informed position. It was not defined how fake the pay slip was and there were no witnesses at the hearing to explain why the pay-slip was thought to be fake;

(h) That a pay-slip just shows how earnings for that month were intended to be disbursed. The disbursement plan could be varied before the pay-slip was issued. The pay-slip therefore did not, as a matter of fact, show what the member's net income for the month or the following months will be. The fake pay-slip did not prejudice the money-lender.”

The record of proceedings also highlights the following:

“Mr Garwe prayed that he be reinstated into the service without loss of benefits. He also urged the department to concentrate on its core business of paying salaries rather than assist debtors of civil servants (sic) to recover monies they are owed.

In a letter dated 20 May 2005, Mr Garwe submitted that his discharge from the service was in complete violation of the recommendations of a Medical Board that had recommended his retirement on medical grounds.”

The Public Service Commission convened to consider the matter, and, on 12 April 2006, the Acting Secretary wrote to him confirming the determination of his guilt and the imposition of the penalty of discharge. The letter reads in part:

“REQUEST FOR REVIEW: MR PAUL GARWE: E.C. NO.1253558 M: FORMER SENIOR PAYROLL CLERK: SALARY SERVICE BUREAU: PUBLIC SERVICE COMMISSION

The above matter refers.

Be advised that the Commission, acting in terms of section 51(3) of S.I.1 of 2000 as amended, confirmed the determination of guilt and the penalty of discharge which was imposed on you.

In arriving at the above decision, the Commission took into account the following:-

(a) That in your response to the misconduct charge, you admitted having submitted a fake pay slip to Dollartech Finance. You submitted that the pay slip had been done by tricksters. The foregoing was considered an unequivocal admission that you deliberately used an incorrect record of your earnings in order to obtain a loan from Dollartech Finance;

(b) That there was no shred of evidence to support the claim that Dollartech Finance had a hand in the misconduct charges that were preferred against you;

(c) That the fake pay slip on record showed that you had a net salary of $48,026=54. However, the correct record of your net salary for September 2002 was $51=53;

(d) That after you had been charged with misconduct on 12 February 2003, you subsequently paid the money that you owed the money lender on 20 February 2003. It was therefore not in dispute that you received a loan from Dollartech Finance. In light of the above, the fact that you were not availed a copy of the fake pay slip which you had submitted to Dollartech Finance and which pay-slip you did not request from the disciplinary authority was considered immaterial and not an irregularity;

(e) That you did not explain why you did not request Mr. Chitambara to recuse himself from the hearing if you were aware that he had investigated your case and could have been partial in the hearing. Furthermore, you did not prove that he was biased as the Chairman of the hearing. Your argument that the Chair of the disciplinary hearing was biased could therefore not be sustained;

(f) That the Commission neither declared itself the disciplinary authority in your case nor did it appoint members of the disciplinary committee which heard your case; and

(g) That you could not be retired on medical grounds before the conclusion of your misconduct case.

There was nothing wrong with the Paymaster, Salary Service Bureau determining your misconduct case before considering the recommendations of the Medical Board.”

Aggrieved by the decision of the Public Service Commission, the appellant appealed to the Labour Court seeking, in his notice of appeal, the relief that the respondent “be compelled to determine whether the appellant is still fit to remain in service and if appropriate retire him on medical grounds.

In his heads of argument before the Labour Court, he sought more extensive relief. He prayed for his appeal to be allowed with costs and for the determination appealed against to be set aside and substituted with a finding that he is not guilty of misconduct; an order that he be paid the full amount of his salary, bonuses and benefits that he ought to have been paid during the period of suspension and discharge; that he be reinstated without loss of salary and benefits or grade and that steps be taken in terms of section 18(5) to retire him from service on grounds of ill health.

The appellant's grounds of appeal in the Labour Court were basically that –

(i) The disciplinary committee was improperly constituted;

(ii) That the Chairperson of the disciplinary committee was biased as he had been involved in the investigation of the matter;

(iii) That his disciplinary hearing was not conducted by a disciplinary authority for the reason that as he was engaged in the middle grade, only the head of Ministry could appoint a disciplinary committee to consider the allegations against him;

(iv) That the respondent had failed to prove its case against him; and

(v) That the issue of the fake pay-slip had nothing to do with his employer or his employment.

It was the appellant's contention that the essential elements of the misconduct with which he was charged were not proved as it was not established that he had been dishonest in the course of his employment or that there had been any prejudice caused as he repaid the loan in full. He further contended that the Public Service Regulations do not concern themselves with misrepresentations that take place outside employment.

Another ground raised by the appellant was that an improper motive had caused or resulted in the charges being preferred against him and contended that this was borne out by the fact that the misconduct process was selectively applied amongst employees who had conducted themselves in a similar fashion.

In his submissions to the Labour Court, the appellant alleged, among other things, that there are about ten other employees who had done exactly what he had done but were still in employment. He is recorded as stating:

“I just want to add that other people are still employed but were also investigated but had done exactly what I did. There are about 10 or so. I actually investigated and I have copies.”…,.

He also alleged that the respondent terminated his employment in order to avoid retiring him on medical grounds.

The Labour Court found that his appeal lacked merit and dismissed it.

THIS APPEAL

Aggrieved by the dismissal of his appeal by the Labour Court, the appellant appealed to this court. His lengthy grounds of appeal raise the following issues to be determined by this court:

1. Whether or not the procedural irregularities raised by the appellant are so fatal as to warrant the disciplinary proceedings being rendered a nullity.

2. Whether or not there was sufficient evidence to prove appellant's guilt and to justify his dismissal.

PROCEDURAL IRREGULARITIES

Authority to discipline a member of the Commission

The functions of the Public Service Commission are provided for in section 8(1) of the Public Service Act [Chapter 16:04]. The section reads:

“Subject to this Act and any other enactment, the functions of the Commission shall be -

(a) To appoint persons to the Public Service, whether as permanent members or on contract or otherwise, to assign and promote them to offices, posts and grades in the Public Service and to fix their conditions of service. …,.

(b) To inquire into and deal with complaints made by members of the Public Service;

….

(e) Subject to Part V, to exercise disciplinary powers in relation to members of the Public Service…,.” …,.

The appellant's post of Senior Payroll Clerk is graded by the respondent as middle grade…,. In his oral submissions before this court, the appellant said that he had merely assumed that as he was a Senior Payroll Clerk and it translated to him being in the senior grade. His assumption was erroneous. In any event, and curiously so, the submission is contradictory of his previous stance in the Labour Court that he was a middle grade employee.

With reference to disciplinary authorities for the different employment levels or grades in the Public Service, section 42 of the Regulations provides as follows:

“(1) The disciplinary authority for the purposes of appointing a disciplinary committee in terms of section 43, determining any allegations of misconduct by a member in terms of section 46 and imposing a penalty in terms of section 50 shall be –

(a) In the case of a member in a senior grade, the Commission;

(b) In the case of a member in a middle grade, the head of Ministry;

Provided that the Commission may determine that it shall be the disciplinary authority in any particular case.

(2) The disciplinary authority for the purposes of sections 44, 47 and 48 shall be –

(a) In the case of a member in a senior grade, the Commission;

(b) In the case of a member in a middle grade, the head of Ministry or the head of office in charge of the member;

The respondent gave a clear explanation of how this provision was adhered to.

The Commission is, for administration purposes, a Ministry in its own right. The authority for this is found in the definition section (section 2) of the Public Service Regulations which states:

“'Head of Ministry', in relation to a member of the Public Service, means the Secretary of the Ministry in which he is employed or the occupier of any other office or post which the Commission, with the concurrence of the appropriate Minister, directs shall constitute his head of Ministry…,.'”

In casu, the Secretary of the Commission holds this post, and, in exercising the role of disciplinarian of middle grade employees, the Secretary appointed a disciplinary committee.

The appellant was charged on 12 February 2003. The committee was appointed on 2 June 2004. It sat on 2 July 2004 and the determination was assented to by all the members in August 2004.

The appellant never challenged the disciplinary authority at the hearing. He subjected himself to it. If he had challenged the disciplinary committee at the hearing, its members would have been the best placed to deal with whatever submissions or evidence would have been presented to them on the issue.

The appellant's contention or alleged irregularity under this heading lacks any basis and is thus of no consequence.

Alleged improper constitution of the Disciplinary Committee

Regarding the allegation of improper constitution of the disciplinary committee, section 43 provides:

“(1) A disciplinary authority shall appoint a disciplinary committee to hear allegations of misconduct against members and make appropriate recommendations to the disciplinary authority.

(2) A disciplinary committee appointed by –

(a) The Commission shall consist of –

(i) A Chairman who shall be any head of Ministry appointed by the Commission; and

(ii) Two other members appointed by the Commission who are in a senior grade from any Ministry other than the one in which the allegation of misconduct arose.

(b) A head of Ministry shall consist of –

(i) A Chairman who shall be the principal establishment officer of the Ministry or a member of equivalent rank; and

(ii) Two other members appointed by the head of Ministry who shall be confirmed members;

(c) A head of department shall consist of –

(i) A Chairman who shall be the deputy head of department or a member nominated by the deputy head of department to act on his behalf who is approved by the head of department; and

(ii) Two other members appointed by the head of department who shall be confirmed members.”

In casu, the disciplinary hearing was chaired by the Deputy Head of the department.

In terms of the Regulations, no irregularity was occasioned thereby. The appellant's view that the other two members of the Disciplinary Committee were not qualified by reason of their not being members of his department is clearly erroneous. The Regulations merely provide that the other two members of the committee should be confirmed members. A confirmed member is defined in section 2 of the Regulations thus:

“Confirmed member means a member who is confirmed in the appointment after a period of probation, or was established officer in accordance with section 5 of the Public Service (General) Regulations, 1992, before the date of commencement of these Regulations.”

The section does not preclude members from other departments from being appointed in the disciplinary committee.

The appellant's contention or alleged irregularity on this aspect is also baseless and lacks merit.

Alleged bias of the Chairman of the disciplinary hearing

The appellant alleged that the Chairman of the disciplinary committee was biased because he was the same individual who investigated the matter when it was brought to the attention of the Commission.

There is no record of the appellant requesting the recusal of the Chairman as he would have been expected to do in such circumstances. See See Mupandasekwa v Green Motor Services (Pvt) Ltd SC30-15…, where the following was stated:

“…,. The likelihood of bias can only, logically, be raised before or perhaps during the proceedings in question. In such cases, an affected party would normally be expected to request that the person suspected of such bias recuse him or herself from participation in the proceedings in question. There is no record that in casu such a request was made by the appellant in respect of the Chairperson of the disciplinary proceedings. Consequently, proceedings continued to finality. The appellant could only, after that, have relied on demonstrated bias to request that the proceedings be set aside.

The court a quo found that he had failed to do so.”

There is no reason on record why he did not raise his concerns at that stage. To the contrary, he is on record thanking the Committee for facilitating the hearing and imploring them to allow him to resume his duties.

The hearing continued to finality.

The onus rests upon the person alleging bias to establish the allegation.

The appellant made an unsubstantiated allegation against the Chairperson of the committee and only did so after the conclusion of the hearing leading to his conviction and dismissal. He has failed to show that he suffered prejudice because of the alleged irregularities. In Musarira v Anglo American Corporation SC53-05, the following was highlighted:

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

(a) Must be given adequate notice;

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

Equally pertinent is the following statement that was made in Watyoka v ZUPCO SC87-05:

“The appellant also raised a complaint about the composition of the disciplinary committee, but it was not shown that there was any bias or prejudice at all. The composition of the committee is a technicality that cannot be allowed to nullify the proceedings which, according to the record, reflect that he had a fair hearing.”

The same position at law was also highlighted in Nyahuma v Barclays Bank of Zimbabwe SC67-05 in the following statement:

“...., it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

The dicta in all the above cases can be applied with equal force in casu.

The appellant has not shown that the Chairperson was biased; neither has he shown that he suffered prejudice because of his involvement in the case. He has thus failed to substantiate the procedural irregularities that he raised.

There have, thus, not been shown to be any procedural irregularities that warrant that the disciplinary proceedings be rendered a nullity.

Whether or not there was sufficient evidence to prove appellant's guilt and to justify his dismissal

The following paragraphs from the affidavit of the Chairman of the Public Service Commission attached to the respondent's notice of opposition in the court a quo captures important aspects of the relevant evidence. They read:

“9.1 The findings of the Disciplinary Committee were based on facts and his response to the charge. He did not dispute, during the hearing, that he authored the letter. In his written response, he unequivocally admitted to the charge and apologized for tarnishing the image of the Public Service. He submitted that the fake pay-slip had been done by “tricksters” who had also conned him. He also admitted that he was in financial problems. It is quite apparent that appellant submitted the fake pay-slip to obtain a loan hence the apology. He does not mention why the so-called 'tricksters' would have submitted a fake pay-slip on his behalf to further his own interests. The committee relied on this evidence in their findings. The findings were proper and grounded on facts. His offer to repay the loan using another arrangement other than the stop order facility provides corroborative evidence.

9.2 Appellant's contention that it was not established that he was dishonest in the course of employment is immaterial because the fake document was produced at his workplace. He was a Payroll Clerk responsible for the production of pay-slips. He was expected to discharge his duties honestly. The Salary Service Bureau lost credibility due to his dishonest conduct and this tarnished the image of the Public Service. The evidence clearly established that he was dishonest in the course of his duties which constitutes an act of misconduct in terms of the Public Service Regulations.”…,.

A large part of the appellant's contention is that the alleged misconduct was of no consequence to his employer, and his employer had no reason or justification to involve itself in his dealings with the moneylender.

The appellant is, unfortunately, ill-advised in holding this view.

The appellant was charged under section 13(d) of the First Schedule of the Public Service Regulations which renders the following an act of misconduct:

“…, falsifying or attempting to falsify any document with fraudulent intent or uttering a forged document…,.”

The appellant failed to explain the origins of the fake pay-slip and the employer reasonably and understandably deduced it was the appellant who had it made. The pay-slip purports to have originated from the employer. When presented, the pay-slip gave the impression that it was conveying facts as held to be true by the employer. In essence, the appellant was including his employer in his fraudulent activity, for it was on the strength of the “employer's assurance”, being the fake pay-slip, that the loan was issued.

The appellant, therefore, cannot successfully contend that his activities outside of employment had nothing to do with his employer in this regard.

As to the evidence that ought to have been considered by the disciplinary committee, the appellant was given the opportunity to present his argument and substantiate it, before both the Committee and the court a quo. At those junctures, he could have called a representative of Dollartech Finance to present the information he believed vital. It was not the respondents' duty to argue his case for him.

This renders the appellant's second, third and fourth grounds of appeal meritless.

These grounds attack the judgment of the court a quo on the bases that the behavior complained of, even going by the employer's version, did not constitute misconduct; that the person who determined the matter erred by finding that the pay advice, which was not produced in evidence, was falsified; that the disciplinary committee ought to have heard the evidence of the moneylender and that the disciplinary committee did not appreciate that it was not part of the Department's function to assist money lenders in recovering their money.

The conviction was thus warranted.

The appellant claimed that his penalty was too severe, to the extent of lacking reasonableness.

It is settled that the courts do not act to usurp the discretion of the employer in deciding whether or not to terminate the employees' contract. This discretion can only be interfered with where it is shown that the employer improperly exercised its discretion. A plethora of cases have been decided in this court in this regard.

See, among others, Celsys Ltd v Ndeleziwa SC49-15; NEC Catering Industry v Kundeya & Ors SC35-16; ZB Financial Holdings v Manyarare SC07-12.

More specifically, in the case of County Fair Foods (Pvt) Ltd v CLMA & Ors (199) 201 lJ 1701 (LAC), the court stated as follows:

“It lies, in the first place, within the province of the employer to set the standard of conduct to be observed by its employees and to determine the situation with which, non-compliance will be visited; interference therewith is only…, in the case of unreasonableness and unfairness.”

The appellant has failed, in his grounds of appeal, to present valid justification for the granting of the relief that he seeks.

The appellant persisted in the view that whatever he engaged in after his work hours should not be a concern to his employer, whether it be morally reprehensible or not. He went to the extent of highlighting other acts of dishonesty that an employee could engage in in his free time and which acts, the employer, in his view, should not concern itself with.

The appellant fails to realise that an employee's conduct can impact negatively on the impression that the general public develops of his employer. The appellant therefore portrays a lack of honesty in his dealings and the respondent, in its heads of argument to the court a quo, rightly posits the rhetorical question; “why should they be made to continue to employ such a person?”

In casu, the respondent expressed its concerns in an affidavit deposed to by its Chairman wherein he stated:

“A pay-slip is an official record of how the earnings and deductions for a particular month have been applied. It remains a permanent record in the payroll system. A member is expected to produce an official and authentic document of his earnings. Faking a pay-slip impacts negatively on the respondent as it results in loss of public confidence in the Public Service payroll system.”

It is not unreasonable for an employer to expect an employee to conduct himself with honesty at all times. The employer stated that the appellant was the Senior Payroll Clerk and in that capacity would be responsible for creating pay-slips. The company expected him to carry out his duties honestly, and was of the view that as a result of the appellant's actions it lost credibility and its image was tarnished.

It cannot, in the circumstances, be said that the employer exercised its discretion unreasonably. There is therefore no merit in the appellant's fifth ground of appeal which attacks the penalty imposed on the appellant as being grossly excessive on the basis that the misconduct complained of, if anything, is of an academic nature as it did not take place in the course of employment and the employer was not injured or prejudiced in any way.

Accordingly, the appeal is dismissed with costs.

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Law Portal
Zimbabwe

Discipline re: Disciplinary Hearings iro Misconduct Outside the Workplace and Misdeeds During a Contractual Lacuna

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

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

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

SC62-17 : PAUL GARWE vs THE PUBLIC SERVICE COMMISSION
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA JA

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Law Portal Zimbabwe

Discipline re: Disciplinary Hearings iro Misconduct Outside the Workplace and Misdeeds During a Contractual Lacuna

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND Ruled By: TSANGA J

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

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

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

SC62-17 : PAUL GARWE vs THE PUBLIC SERVICE COMMISSION Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA JA

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Law Portal
Zimbabwe

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

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

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

SC62-17 : PAUL GARWE vs THE PUBLIC SERVICE COMMISSION
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA JA