Final Orders re: Procedural Irregularities iro Labour Proceedings

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

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

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

BACKGROUND

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

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

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

It granted the application.

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

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

THE APPEAL

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

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

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

THE ISSUE

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

THE LAW

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

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

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

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

The appellant argued that the court had no such competence.

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

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

The appellant was partially correct.

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

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

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

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

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

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

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

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

ANALYSIS

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

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

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

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

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

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

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

Accordingly, I make the following order:

The appeal is dismissed with costs.

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

On 26 January 2017, this Court, in SC01-17, adjudicating over the parties' dispute, remitted the matter to the Labour Court (the court a quo) for a determination of the following issues:

“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the agreement, whether or not the salaries and benefits stipulated in that agreement were intended to apply to the appellants.”

After considering the parties' submissions, and evidence led, the court a quo dismissed the appellants' claim against the respondent. The court a quo held that the appellants failed to discharge the onus on them of proving that they were covered by the Works Council Agreement upon which their claim of salaries and benefits was founded.

This is an appeal against that judgment.

FACTUAL BACKGROUND

The appellants are 153 former employees of the respondent who were employed as security guards on fixed-term contracts renewable every three months.

The period of employment ranged from 2007 and 2008 up until January and April 2011 when their contracts expired by effluxion of time and were not renewed.

In July 2010, the respondent, 1,078 of its employees, and its workers' committee approached an arbitrator (Nasho) in a bid to negotiate the regularisation of the employees' contracts in line with the new multi-currency regime and to ascertain the salary arrears due to the respondent's employees.

Arbitrator Nasho ordered the payment of back-pay from 1 March 2009 to the date of the award, in line with the multi-currency system.

In accordance with that award, the parties concluded a Works Council Agreement, on 15 September 2010, which set the back pay due to all employees of the respondent and the salary structure for non-managerial employees from 1 January 2010 onwards. It was agreed that all employees across the board, for the period of 1 March 2009 to 31 December 2009, were to be paid a net salary of $500 per month.

Following this agreement, and in a different matter, the appellants challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

A second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012. On appeal, the arbitral award was upheld by the Labour Court.

On 10 December 2012, following the dismissal of their claim by arbitrator Mugumisi, and as confirmed by the Labour Court, the appellants filed another claim for the payment of arrear salaries and benefits which was dealt with by the third arbitrator (Mambara) who awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimants' contract of employment was terminated.

Dissatisfied by that decision, the respondent applied to the Labour Court for a review of the award. The Labour Court upheld the review on 12 September 2014 and dismissed the appellants' claim.

Irked by that decision, the appellants appealed to this Court which remitted the matter to the court a quo for a comprehensive analysis of whether the appellants were covered by the 2010 Works Council Agreement.

In making that order, the court noted that although both the arbitrator and the Labour Court, in its review proceedings, referred to the minutes and the agreement of September 2010, the relevant portions of the agreement were not reproduced.

Additionally, the court reflected that the Labour Court failed to call evidence from the signatories to the agreement to explain its provisions and clarify its scope of coverage.

It further did not proceed to consider the precise ambit of the agreement and its implications for the appellants' claim before the arbitrator.

As a result, it did not make a finding on this critical aspect of the matter despite noting some causal nexus between the Nasho award and the 2010 Agreement.

The court further reasoned that it appeared common cause that the present appellants were part of the 1,078 claimants who were beneficiaries to the Nasho award and that since the Works Council Agreement was made in September 2010, they would have a justifiable claim to the benefits accruing from that agreement. The court concluded as follows:

“In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu. This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.”

Hence the proceedings in the court a quo which are the subject of this appeal.

PROCEEDINGS IN THE COURT A QUO

The remittal proceedings commenced with the appellants' Statement of Claim, to which the affidavit of Joseph Lungu, the first appellant, was attached.

Mr Lungu averred that the appellants were part of the 1,078 workers in whose favour the arbitral award by Nasho was made. In support of this position, Mr Lungu relied on a list attached to a memorandum which was addressed to one Mr Rwatirera on 5 September 2012.

The respondent's notice of opposition was supported by affidavits from different personnel in the respondent's employ.

The first deponent was Mr Rwatirera, a member of the respondent's Works Council that negotiated the September 2010 Works Council Agreement.

He averred that there was no list of the claimants who appeared before Arbitrator Nasho as none was furnished or attached to those arbitral proceedings. As such, he argued that the list produced by the appellants was tailor-made for the proceedings.

He thus, denied approving or signing the list produced by the appellants.

Mr Rwatirera further indicated that the employees who were covered by the 2010 Agreement were permanent, non-managerial employees and not fixed term contract employees since the latter's terms and conditions were regulated by their individual contracts of employment and were not subject to any Works Council negotiations nor Workers Committee representation.

He also averred, that, it was generally accepted by the respondent, the then Worker's Committee representatives, the general body of the respondent's permanent employees, and most of the fixed-term contract employees, that, fixed term contract employees were not within the scope of the arbitral proceedings before Nasho and the subsequent Agreement of 2010.

He also asked the court to note that the appellants signed fixed term contracts of employment providing for a salary of $250 per month well after the September 2010 Agreement was concluded.

The second deponent, Mr Mugabe, the chairman of the Workers Committee and a member of the Works Council in September 2010, attested that the salaries and benefits of the Work's Council Agreement were intended to apply to permanent employees in Grades 1 to Level 2 and not to fixed-term contract employees.

The third deponent, E Makaha, a former vice-chairman of the Worker's Committee and a member of the Works Council confirmed Mr Mugabe's averments.

The fourth deponent was Mr Mavengano, the former Vice Secretary of the Workers Committee and a member of the Works Council who authored the list dated 12 September 2012.

He disputed the authenticity of the list produced by the appellants.

The fifth and sixth deponents, A. Saburi and T. Hungwe, respectively, who were management representatives in the Works Council Agreement, averred that the Worker's Committee did not, at any time, represent fixed-term contract employees in negotiating their salaries and benefits.

In response, the first appellant disputed the respondent's averments in their totality.

At the hearing, the respondent took a point in limine that the founding affidavit of Mr Lungu, was improperly before the court as he was not a signatory to the Works Council Agreement of 2010 as required by the remittal order.

To the contrary, counsel for the appellants argued, that the order in SC01-17, which remitted the matter to the court a quo, was not restrictive, but left it open for the court to receive any other sworn evidence apart from that of signatories to the Works Council Agreement.

The court a quo upheld the preliminary objection and expunged the affidavit of the first appellant from the record.

Thereafter, two witnesses testified for the appellants.

The first witness, Mr Muronzi, averred that the applicants participated in the proceedings before arbitrator Nasho and contributed $2 towards arbitration costs. However, he stated that he was not a member of the Workers Committee and was not a signatory to the September 2010 Agreement and was cognisant of patent irregularities on the appellants' list.

The second witness, Mr Mushayabasa averred that he was on a specific term contract and was one of the employees who contributed $2 for arbitration costs before Arbitrator Nasho following an address by one Ziki, a member of the then Workers Committee.

The respondent led evidence through Mr Rwatirera, who, apart from reiterating the averments in his founding affidavit, testified that it had always been the respondent's practice that fixed term employees were excluded from the Works Council.

Work's Council members were voted into office by permanent members of staff only.

He also testified that the Workers Committee only represented permanent members of staff.

He further confirmed the fact that the applicants signed further contracts of employment, with a different salary from that of permanent employees, long after the September 2010 Works Council Agreement was concluded.

He reiterated that all the employees on fixed-term contracts were not part of the Nasho proceedings.

DETERMINATION OF THE COURT A QUO

The court a quo dealt with the issue of whether or not the appellants had discharged the onus on them of proving that they were included in the September 2010 Works Council Agreement.

The court had regard to the specific provisions of the September 2010 Works Council Agreement, the minutes accompanying that Agreement, and sworn evidence from the signatories to the Agreement.

The relevant clause on which the appellants base their claim provides as follows:

“The Works Council resolved to recommend to the Board that;

(i) A net salary of $500 per month be paid to all employees across the board for the period 01 March 2009 to 31 December 2009. (This is inclusive of transport allowance of $50 per month and rental support of $200 per month).

(ii) A thirteenth cheque should be paid to all employees for the same period.”…,.

Regarding the September 2010 Works Council Agreement, the court a quo found, that, the reference to “all employees” in the agreement was not determinative of whether or not the applicants were entitled to the salaries and benefits stipulated under that agreement. This was because the respondent had several employees ranging from fixed-term, permanent term, to those contracted for casual work or seasonal work.

Accordingly, it posited that the use of the term “all employees” was vague and it was unable to decide which of the meanings applied by both parties was correct.

The court then held that the provisions of the September 2010 Works Council Agreement did not assist the appellants to discharge their onus.

Concerning the minutes accompanying the Agreement, the court a quo found, that, they were no different from the Works Council Resolutions in that there was no indication whether or not the mentioned employees were on fixed term or permanent employment.

Accordingly, it was unable to decide whether the appellants were included in the term 'employees' as it appeared in the minutes. Therefore, the court ruled that the minutes of the Works Council meeting did not assist the appellants to discharge the onus on them.

As regards the sworn evidence from the signatories to the Agreement, the court noted that the two witnesses who testified for the appellants were not signatories to the agreement or members of the Works Council.

It proceeded to disregard their evidence for non-compliance with clause 3.1 of the order for remittal.

The court a quo further found, that, in any event, the evidence before it was that of sworn affidavits of members of the Works Council who were present when the agreement was reached stating that the appellants were not covered by the agreement.

Further, the authenticity of the list of names relied upon by the appellants was put in issue.

After analysing the list tendered by the appellants, the court remarked, that, on a balance of probabilities, the appellants names were interposed on an existing list. It opined that the list on which the appellants names appeared might have been a combination of documents that were prepared for different purposes.

In the result, it held that the document could not be taken as proof of the people who were involved in the arbitration proceedings before Arbitrator Nasho.

The court concluded that the appellants had not been able to discharge the onus of proving that the salaries and benefits stipulated in the September 2010 Works Council Agreement were intended to apply to them.

It then dismissed the appellants' claim with costs.

This decision prompted the appellants to note the present appeal on the following grounds:

“1. The court a quo erred in coming to the conclusion that the founding affidavit of Joseph Lungu was not properly before it and accordingly striking if off and in consigning the viva voce evidence given on behalf of the appellants to the same fate.

2. A fortiori, the court a quo erred in renouncing the essence of the responsibility that had been placed upon its shoulders by the Supreme Court.

3. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not requiring respondent to account for the 1,079 claimants who were before Arbitrator Nasho and in not requiring it to show how it could be said the appellants were not part of those claimants, all the circumstances of the matter (sic).

4. Having found that the agreement on which appellants sued, and the minutes giving birth to it related and made reference to 'all employees', the court a quo erred in coming to the conclusion that such reference was not determinative of the issue and that it still left room for the conclusion that the appellants were not contemplated by the words 'all employees'.

5. The court a quo erred in not coming to the conclusion that though appellants could not lead the evidence of the signatories to the agreement and that for reasons that were beyond them, all the objective evidence which the Supreme Court had related to and directed be taken into account led to the inexorable conclusion that appellants were covered by the agreement.

6. The court a quo erred in not coming to the conclusion that appellants were on the list of employees which formed part of the Supreme Court record and which respondent had dishonestly tried to amend after the fact that there had accordingly never been a dispute as to their inclusion in the agreement.

7. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not concluding that the discrepancies on the numbers of the employees appearing on the lists were explicable on the basis that some of the employees who had made their contributions had not appeared in the Nasho list.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellants argued, that, the court a quo misdirected itself in ignoring the fact that the only list that contained the names of the 1,079 employees that were covered by the September 2010 Works Council Agreement was the list provided by the appellants.

He submitted that the failure by the respondent to produce the original list of 1,079 employees, covered by that Agreement that it relied on, but, instead, attaching a list with 237 employees indicated that the only list of employees that could be relied on was that produced by the appellants.

He further submitted, that, since the respondent had not disputed the authenticity of the list of 1,079 employees produced by the appellants in this Court when the matter initially came on appeal, it could not seek to do so during remittal proceedings.

Counsel for the appellants also argued that the phrase “all employees” as used in the resolution of the Works Council Meeting, and the Minutes that followed, was unambiguous and applied to all the respondent's employees without discrimination.

This, he submitted, was supported by the fact, that, during the dollarisation period, all the respondent's employees were getting allowances instead of salaries and the object of the arbitration proceedings, held before Arbitrator Nasho, was to discuss the regularisation of all employees' contracts of employment regardless of whether they were permanent or on fixed term contracts.

As such, he contended that there was no justifiable basis upon which the respondent could exclude the appellants.

Further, that regard being had to section 5 of the Labour Court Act [Chapter 28:01], which provides for the protection of employees against discrimination, there was no justification in distinguishing the salary payable to fixed term employees and permanent term employees in the regularisation process.

Counsel for the appellants also submitted that the court a quo erred in taking a rigid approach in resolving the matter leading it to irregularly striking out part of the appellants' evidence.

He submitted that the fact that the evidence was unnecessary does not mean that the appellants did not have a valid claim.

He also submitted, that, the court a quo should not have found that the list of 1,079 employees produced by the appellants was doctored in the absence of expert evidence to that effect.

He also submitted that the Works Council minutes refer to “all employees”.

There was no application to rectify the minutes and it leads to one conclusion - that they applied to all employees.

He further contended, that, there was uncontroverted evidence that the appellants contributed money towards the costs of the arbitration.

Conversely, counsel for the respondent submitted, that, the court a quo could not be faulted in finding that the appellants had failed to discharge the onus upon them of proving that they were included as beneficiaries in terms of the September 2010 Works Council Agreement.

He contended that the onus was on the appellants to prove that they were covered by the Agreement.

He submitted that the court a quo was correct in restricting itself to the parameters set by this Court when it remitted the matter, hence, part of the appellants' evidence was struck out.

It was also his argument that the court a quo had made a factual finding that the list of employees provided by the appellants had patent irregularities and that such factual finding could not be upset by this Court unless the appellants established that such a finding was grossly unreasonable.

Furthermore, he submitted that the court a quo, having found that the text used in the Works Council Meeting, and the subsequent Minutes, did not help the appellants' case, correctly determined that no evidence had been put before it by the appellants to prove that they were part of the 1,079 employees who appeared before Arbitrator Nasho.

ISSUE FOR DETERMINATION

Although the appellants have raised several grounds of appeal, I take the view that the appeal can be determined on the following issue:

WHETHER THE COURT A QUO ERRED IN FAILING TO MAKE A SPECIFIC FINDING ON WHETHER OR NOT THE APPELLANTS WERE COVERED BY THE WORKS COUNCIL AGREEMENT OF SEPTEMBER 2010

In determining this issue, it is necessary to first consider the import of the order in SC01-17 remitting the matter to the court a quo.

That order enjoined the court a quo to determine whether or not the salaries and benefits stipulated in the September 2010 Works Council Agreement of 2010 were intended to apply to the appellants; and, if so, the quantum thereof. Put differently, the court a quo had to determine if the appellants were included in that Agreement.

An examination of the court a quo's ruling reflects that the court a quo did not make this finding.

Having considered the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, as directed by this Court under SC01-17, the court a quo remarked that it was unable to decide whether or not the appellants were included under the agreement.

The court a quo then invoked the principle of onus to the effect that the appellants failed to prove that they were covered by the 2010 agreement.

The court a quo's decision was premised on the inability to resolve the issues in dispute.

I regurgitate the relevant portions of the court a quo's judgment:

“(1) The specific provisions of the Works Council Agreement of September 2010

In our view, the text of the Works Council meeting resolutions of September 2010 does not resolve the issue.

The use of 'all employees' leaves the Court unable to decide which of the two meanings propounded by the parties is correct

It therefore follows that provisions of the Works Council Agreement of 2010 does not help the applicants to discharge the onus upon them.

(2) The Minutes Accompanying the Agreement

The minutes of the Works Council meeting of 16 September 2010 leaves the court in the same position as after considering the Works Council Resolutions of September 2010.

The Court is unable to decide whether the Applicants were included in the term employees as it appears in the minutes.

The minutes of the Works Council meeting of 16 September 2010 therefore do not assist the Applicants to discharge the onus upon them.”…,.

It follows that the court a quo failed to make a determination on the pertinent issue upon which the matter was remitted.

The court a quo's inability to make a finding is a serious misdirection. It is tantamount to not making a decision at all.

In PG Industries (Zimbabwe) Limited v Bvekerwa & Ors SC53-16…, the court opined on the effect of a court's failure to determine an issue in dispute as follows:

“The position is settled, that, where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.

Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.”…,.

In casu, the court a quo, whilst accepting the parties' dispute regarding the import of the September 2010 Works Council Agreement and the minutes thereto, did not make a finding on whether in light of this evidence, the appellants were included in the September 2010 Agreement.

The court could not have failed to determine this crucial issue as the relevant facts upon which it could reach an objective decision were before it.

The irregularity is apparent in the court a quo's assessment of the specific provisions of the September 2010 Works Council Agreement and the minutes accompanying that Agreement.

The finding by the court a quo, that the appellants failed to discharge the onus placed on them to prove that they were covered by the 2010 Agreement did not dispose of the matter. This is so because the question remained whether or not the appellants were covered by the Agreement regard being had to the evidence placed before the court a quo.

This was not an issue the court a quo could ignore. The court was obliged to making a finding.

It failed to do so.

Having found that the court a quo grossly misdirected itself, in failing to make a clear cut determination, the pertinent question that arises is whether the subsequent finding by the court, that the appellants failed to discharge the onus cast upon them, to prove that they were covered by the September 2010 Agreement, was correct.

In Pillay v Krishna & Another 1946 AD 946…, the court made the following remarks regarding the burden of proof in a matter:

“…, the duty which is cast on the particular litigant, in order to be successful of finally satisfying the Court that he is entitled to succeed on his claim, or defence, as the case may be, and not in the sense merely of his duty to adduce evidence to combat a prima facie case made by his opponent.

The second is that, where there are several and distinct issues, for instance a claim and a special defence, then, there are several and distinct burdens of proof, which have nothing to do with each other, save of course that the second will not arise until the first has been discharged.

The third point is that the onus, in the sense in which I use the word, can never shift from the party upon whom it originally rested.

It may have been completely discharged once and for all, not by any evidence which he has led, but by some admission made by his opponent on the pleadings (or even during the course of the case) so that he can never be asked to do anything more in regard thereto; but the onus which then rests upon his opponent is not one which has been transferred to him: it is an entirely different onus; namely, the onus of establishing any special defence which he may have.”…,.

From these remarks, one can note, that, the burden of proof is the obligation upon a litigant to establish facts which persuade the court to rule in his or her favour.

It invariably involves a court's weighing of an applicant's claim together with the probabilities which arise from the circumstances of the case to decide whether he is entitled to the relief sought.

Therefore, the question of whether or not a party has discharged the onus upon it cannot be determined by a court's indecision. This is particularly so in an instance where the court can evaluate the facts and evidence and decide which version is more likely than not to be true.

It is on this basis that I have concluded that the court a quo did not correctly apply the principle of onus of proof to the matter before it.

Counsel for the appellants urged the court to consider, that, on a holistic approach to the matter, there was sufficient material for this court to make a finding that the appellants were part of the September 2010 Works Council Agreement.

That would be tantamount to asking this Court to be a court of first and last instance.

This Court cannot do so for the reason that the general position of law is that for the Supreme Court to consider a case, a lower court or tribunal must have made a relevant order. Its duty is to determine whether those decisions should be confirmed, changed, or reversed. This is because the Supreme Court exercises appellate jurisdiction which is conferred on it by sections 9 and 21 of the Supreme Court Act [Chapter 7:13] and section 169 of the Constitution of Zimbabwe, 2013.

The undesirability of having an Appellate Court sitting as a court of first instance was put across in Dormehl v Minister of Justice and Others [2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues of direct access to the Constitutional Court of South Africa stated:

“(b) It is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, without there being any possibility of an appeal against its decisions…”

In any event, there is need for the leading of evidence which the court a quo is best suited to do as is provided in terms of sections 89(2)(a)(i) and 89(5) of the Labour Act [Chapter 28:01].

DISPOSITION

The court a quo's failure to determine whether, in terms of the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, the appellants were entitled to the benefits therein, constitutes a material misdirection justifying interference by this court.

It is also a matter which the court a quo is in as good a position to address, thus, a remittal is appropriate in the circumstances.

The matter would be remitted to be heard before a single judge who shall not be any of the judges who determined the matter previously.

In the result, the appeal succeeds in respect of Ground 2 and is dismissed in respect of the rest of the grounds. It would be fair, in the circumstances of this case, that each party bears its own costs.

It is accordingly ordered as follows:

(1) The appeal be and is hereby allowed.

(2) The judgment of the court a quo be and is hereby set aside.

(3) The matter be and is hereby remitted to the court a quo, before a different Judge, for a proper determination of whether, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, the salaries and benefits stipulated in that agreement were intended to apply to the appellants.

(4) If the answer is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.

(5) Each party shall bear its own costs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. The appeal be and is hereby dismissed.

2. The appellant shall pay the costs of suit.

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

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

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

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

The facts of the matter may be summarized as follows;

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

“RE: DETERMINATION ON HEARING

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

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

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

(iii) Offence number 3; 3.7 – Insubordination.

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

After deliberations, the hearing committee passed the following verdict:

(a) Presentation of case was not properly done.

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

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

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

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

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

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

“Attention: COMPLAINANT
PIONEER TRANSPORT

Re: APPEAL AGAINST DECISION IN DOUGLAS MAFIKENI HEARING

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The appellant has not shed any light on this issue.

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

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

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

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

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

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

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

He did not appeal.

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

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

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

“E. APPEALS AND REVIEW OF MATTERS

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

E.1 Appeal to the Chief Executive.

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Must be given adequate notice;

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

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

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

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

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

The proceedings before the Managing director are a nullity.

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

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

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

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

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

Justice must be seen to be done.

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

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

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

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

Section 89(2) of the Labour Act reads:

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

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

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

(iii)…,. (repealed); or

…,. (repealed).”

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

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

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

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

He continued at 222B:

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

He continued further at 222D:

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

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

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

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

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

(b) Decide the appeal on the record; or

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

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

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

Accordingly, the following order is made:

1. The appeal is allowed.

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

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

4. Each party shall bear its own costs.

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

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

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

BACKGROUND

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

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

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

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

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

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

The matter was never prosecuted.

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

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

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

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

He then enlisted the services of another lawyer.

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

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

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

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

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

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

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

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

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

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

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

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

REQUIREMENTS FOR AN APPLICATION FOR CONDONATION

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

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

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

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

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

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

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

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

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

(i) The extent of the delay;

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

(iii) The prospects of success.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is not sufficient.

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

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

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

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

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

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

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

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

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

DISPOSITION

There must be finality to litigation.

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

Accordingly, I make the following order:

1. The appeal is hereby dismissed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He also seeks certain consequential relief.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE MERITS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VIOLATION OF THE AUDI ALTERAM PARTEM RULE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ORDER

In the result, the following order shall issue:

1. The application be and is dismissed.

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

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

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

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

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

The Background

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

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

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

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

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

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

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

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

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

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

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

The intended grounds of appeal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Both respondents pray that the application be dismissed with costs.

Applications for Leave to Appeal

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

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

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

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

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

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

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

Clear and concise exposition of constitutional matter

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

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

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

Decision appealed against on constitutional matter

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

Counsel for the applicant answers that question in the affirmative.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Proceedings in the High Court

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

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

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

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

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

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

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

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

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

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

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

Constitutional matter in the High Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Proceedings in the Supreme Court

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

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

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

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

Costs

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

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

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

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

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

Disposition

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

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

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

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DETERMINATION BY THE COURT A QUO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SUBMISSIONS BEFORE THIS COURT

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

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

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

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

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

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

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

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

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

Counsel thus prayed for the dismissal of the preliminary point.

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

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

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

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

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

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

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

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

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

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

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

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

DETERMINATION OF THE MERITS OF THE MATTER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The allegations against the appellant were serious.

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

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

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

It is apparent that the appellant made unsubstantiated allegations.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DISPOSITION

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

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

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

In the result, it is accordingly ordered as follows:

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

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

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

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

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

This was an opposed application.

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

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

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

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

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

Only the employer gets cited in such an application.

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

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

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

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

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

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

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

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

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

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

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

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

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

I opted to hear the matter on the merits.

The facts were these:

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

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

Evidently, there is such an error in those Regulations.

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

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

There is a problem with this sub-section.

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

But, section (2) does not exist.

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

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

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

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

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

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

That was in March 2015.

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

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

That was in May 2015.

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

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

That was in September 2015.

That did not happen, apparently for two reasons:

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

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

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

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

In March 2016, the Labour Court gave such directions.

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

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

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

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

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

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

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

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

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

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

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

That was in October 2016.

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

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

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

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

That was in May 2017.

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

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

The applicant felt he was back to nowhere.

His appeal was never determined on the merits.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He or she has a right to be heard.

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

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

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

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

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

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

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

It is squarely before me now.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 85 of the Constitution reads:

“85 Enforcement of Fundamental Human Rights and Freedoms

(1) Any of the following persons, namely —

(a) Any person acting in their own interests;

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

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

(d) Any person acting in the public interest;

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

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

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

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

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

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

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

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

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

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

4. There shall be no order as to costs.

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

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

FACTUAL CONSPECTUS

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

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

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

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

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

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

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

PROCEEDINGS BEFORE THIS COURT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder, the court should raise it mero motu to safeguard the interest of third parties and it should decline to hear the matter until such joinder has been effected, or until the court is satisfied that the third parties have consented to be bound by the judgment or have waived their right to be joined.”

When this is related to the circumstances of this case, it cannot, in my view, be contested that the joinder of the employee, Ms Khan, was necessary.

While it is noted, in casu, that, the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored, that, the court effectively heard evidence from one side of the dispute and not the other, before making its determination.

As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling. It then essentially weighed the respondent's submissions against what was contained in the affidavit of the labour officer (before the court a quo, the labour officer briefly repeated the facts of the dispute and the details of the award she had made), and made its determination.

The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the quantum of the award. Nor, however, could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking, that, the employee had been accorded the unfair advantage of having her case 'argued' for her by the labour officer.

There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings:

(i) Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, section 93(5b) of the Labour Act affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter.

It is evident from section 93(5b) of the Labour Act, that, before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is, in reality, not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect.

He cannot, therefore, be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation.

Defending the labour officer's ruling should properly be the province of the person directly affected by it, that is, the employee concerned.

In my view, the Labour Court's confirmation or non-confirmation of the ruling, after effectively hearing one side of the dispute, is, at best, an irregularity, and, at worst, a travesty of justice.

(ii) Secondly, the procedure presupposes, that, a ruling made by the labour officer in favour of an employee will meet that employee's satisfaction.

It shuts the door, for instance, on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that quantum, in confirmation proceedings before the Labour Court.

A joinder to the proceedings would accord the employee the opportunity to, as it were 'cross oppose' the confirmation proceedings in the desired respect.

(iii) Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court, for one reason or the other, the employee might wish to take up the matter on appeal. He would, however, be hamstrung by the fact, that, he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order on his or her behalf.

(iv) Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.

One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent.

This is what happened in casu.

All too often, this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal.

Equally, often, the respondent cited in the appeal, that is, the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument. Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer's appearance.

Ordinarily, where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party.

The point has already been made, that, the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee's knowledge.

The injustice of such an outcome needs no emphasis.

(v) Finally, the appearance of the labour officer, as the respondent, in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems.

In such cases, the question of the labour officer's competence to so appear has arisen.

In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis? It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.

Other aspects of the procedure suggested by subsections (5a) and (5b) of section 93 of the Labour Act merit some comment.

Section 93(5b) of the Labour Act makes it clear, that, the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court's confirmation of the labour officer's ruling.

Further, while section 93(5b) of the Labour Act clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution.

Without being cited as a party, there would be confusion as to whether the 'claimant' that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite locus standi, and, moreso because section 93(5b) does not mandate him to do so.

The danger of the Labour Court's order being rendered a brutum fulmen becomes real.

In conclusion, while one might argue, in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view, that, the absurdities could not have been consciously intended by the legislature.

The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court.

The legislature might well wish to consider addressing this, and the other concerns, set out in this judgment.

DISPOSITION

When all is said and done, and in view of the foregoing, it is my finding, that, there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can, therefore, not be allowed to stand.

In the result, the following order is made:

1. The appeal be and is hereby allowed.

2. The proceedings and judgment of the court a quo be and are hereby quashed.

3. The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.

4. Each party shall bear its own costs.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE
Ruled By: MUZENDA J

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:“IT IS ORDERED THAT:1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.2. The 1st respondent be and is hereby ordered ...

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:

“IT IS ORDERED THAT:

1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.

2. The 1st respondent be and is hereby ordered to entertain the applicant's appeal lodged on 12 February 2015 within twenty one (21) days of this order being granted.

3. The respondents to pay costs of suit jointly and severally, the one paying the other to be absolved.”

Facts

On or about December 2014, the applicant was charged with contravening section 3(46) of the Prisons (Staff) (Discipline) Regulations 1984. It was alleged, that, at Mutare Farm senior officers Mess, the applicant, being a member of the service, did wrongfully and unlawfully utter despicable words against the first lady, Dr Grace Mugabe, saying “Ma problems ese arikuitika mumusangano anokonzereswa nembwa inonzi Dr Grace Mugabe asi isu musangano tinouda.”

This was against the discipline - especially of a commissioned officer.

The disciplinary hearing was conducted in January 2015 in terms of section 10(1) and (11) of the Prisons (Staff) (Discipline) Regulations 1984.

The applicant was found guilty and discharged from service.

He filed an application for review to the Commissioner in terms of section 22(1) of the Prisons (Staff) (Discipline) Regulations 1984. The Commissioner confirmed the Board's decision and dismissed the application for review.

The applicant did not rest, he appealed to the Public Service Commission in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984.

The Public Service Commission refused to entertain the appeal citing lack of jurisdiction and the relevant portion of the letter of 17 March 2015, addressed to the applicant's legal practitioners, reads as follows:

“It has been noted that you were engaged as a Commissioned officer at the rank of Superintendent in the Zimbabwe Prisons and Correctional Services. In terms of section 9(1)(e) of the Prisons Act (Chapter 7:11) the President may reprimand, suspend, reduce rank or discharge any Commissioned officer. The Prisons and Correctional Service does not have the jurisdiction to preside over cases involving Commissioned officers.

This rests your case with us. Please be guided accordingly.”

The applicant genuinely believes that the Public Service Commission has the jurisdiction to entertain the appeal made in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984. However, up to now, the first respondent has failed to hear the appeal hence this application.

The application is opposed.

In the opposing papers, the first respondent raises a preliminary point premised upon the citation of the first respondent.

According to the respondents, the first respondent does not, and has no jurisdiction to determine the applicant's appeal in her capacity as Secretary of the Public Service Commission.

The Public Service Commission, she argues, is a separate legal entity to the Prisons and Correctional Services Commission. The Secretary, Public Service Commission acts as the Secretary to the Prisons and Correctional Services is incorrectly cited as she does not represent the Commission, the applicant ought to have cited the Chairperson to the Prisons and Correctional Services Commission.

Further, the first respondent does not deal with appeals in her official capacity, and, as such, she is incorrectly cited....,.

Counsel for the first respondent submitted, that, the improper citation of a party renders the application void.

Counsel for the first respondent cited the matter of Matida v Chairman, PSC and Anor 1998 (1) ZLR 507 (H): ADAM J…, had this to say relating to the citation:

“Now, that court application, firstly, cites the Chairman of the Public Service Commission as the first respondent. Yet, the annexure to the founding affidavit gives the Public Service Commission as the decision maker. The wrong party has been cited. Rule 256 surely is concerned with the decision or proceedings of the legal persona, be that an inferior court, tribunal, board or officer. This means it is that legal persona whose decision or proceeding has to be reviewed that must be cited and the application must be directed and delivered, in the case of the tribunal or board, to the Chairman of that body: see in this regard Maxwebo v Chairman, Public Service Commission HH125-97 at p6-7 where SMITH J said:

'Before concluding, I wish to make an observation on the party cited as respondent. The Chairman of the Public Service Commission was so cited. Although exception was not taken there, I considered that it was improper to cite him as respondent. Section 74 of the Constitution establishes the Public Service Commission which consists of the Chairman and not less than two and not more than seven other members.

Any findings, rulings or decisions of the Public Service Commission are those of the body and not of the Chairman.

Accordingly, the Chairman of the Public Service Commission cannot do anything in the name of the Commission if the majority of members do not agree with him.

The distinction is illustrated by the order sought by the applicant.

The draft order states that the respondent's decision to find the applicant guilty of misconduct should be set aside. However, the findings of guilty was not a decision of the respondent. It was a decision of the Public Service Commission.

I therefore consider that it was improper to cite the Chairman as respondent. The Public Service Commission should have been cited as the respondent.'”

In the case of City Bolts (Pvt) Ltd v Workers Committee SC16-12, GARWE JA.., ruled as follows:

“At the hearing of this matter, it appeared to this court, that, the respondent, simply cited as 'Workers Committee' was not a legal persona capable of being sued. Accordingly, both counsel were asked to address the court on the matter. Both counsel accepted, that, the respondent, which is a Workers Committee appointed by workers of the appellant company, is not a legal persona and cannot therefore be sued.”

The applicant improperly cited the Secretary as the first respondent instead of citing the Public Service Commission. That was a fundamental error and the preliminary point finds favour with this court, and, accordingly, the point in limine is upheld and the application is dismissed with costs.

It is so ordered.

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Law Portal
Zimbabwe

Final Orders re: Procedural Irregularities iro Labour Proceedings

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

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

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

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

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

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

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

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

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

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

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

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

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

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

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

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE
Ruled By: MUZENDA J

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Law Portal Zimbabwe

Final Orders re: Procedural Irregularities iro Labour Proceedings

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

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

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

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

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

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

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

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

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

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

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

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

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

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

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

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE Ruled By: MUZENDA J

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Law Portal
Zimbabwe

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

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

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

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

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

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

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

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

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

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

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

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

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

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

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

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE
Ruled By: MUZENDA J