MANGOTA J: Applicants who are employees of the respondent
were allocated motor vehicles for official and personal use. The allocation was
in terms of their contracts of employment as read with the respondent's motor
vehicle policy a copy of which the applicants attached to their application.
The policy was marked Annexure 'A'. The annexure contains a provision for the
applicants' ownership of the motor vehicles after they have remained with the
vehicles for a period of four (4) years.
The applicants alleged that the four (4) year cycle at the
end of which period ownership of the vehicles was due to them elapsed in
January 2013. That stated matter, they claimed, caused the respondent's human
resources manager, one Moses Mawire, to transfer ownership of the motor
vehicles into their respective names.
The acquisition of ownership of the motor vehicles by the
applicants constitutes a material dispute of fact with which the High Court
remains seized. The applicants' contention is that they acquired ownership of
the motor vehicles not only lawfully but with the blessing of the respondent.
They, in support of their claim, attached to the application Annexure B1-B5.
The annexures are to the effect that the vehicles which are the subject of the
parties' dispute in another case had extended their economic life cycle in
terms of the respondent's motor vehicle policy and had, therefore, been handed
over to the applicants as their respective personal vehicles.
The respondent, on the other hand, counter - argued against
the applicants' claim and stated that the applicants acquired the motor
vehicles unlawfully and without its blessing. It stated that the applicants
capitalised on the chaos which occurred at their place of work in, or around,
January, 2013 and proceeded to bring pressure to bear on Moses Mawire and the
latter's colleagues and, in the process, took transfer of the respondent's
motor vehicles. It referred the court to what it termed a vindicatory action
which it said it filed with the court under case number HC 10472/13. The
action, it said, is aimed at recovering its motor vehicles from the applicants
as well as having ownership of the same transferred to it. It argued that, in
arm-twisting Mr. Mawire and others to transfer ownership of the motor vehicles
to them in the manner which they allegedly did, the applicants committed an act
of misconduct for which they had to be brought before a disciplinary
authority which the respondent established in terms of its code of conduct.
The applicants, on their part, stated that the contemplated
disciplinary hearings were, or are, intended to victimise them in a very
serious manner as well as to take away from them the motor vehicles the
ownership of which, they claim, they lawfully acquired. They prayed the court
to grant them what they termed a prohibitory interdict which would compel the
respondent to stop the disciplinary hearings pending the finalisation of the
case which the respondent filed with the court under case number HC 10472/13.
They alleged that the outcome of the disciplinary hearings was pre-determined
and the respondent would not, therefore, buy their defence. They stated that
the respondent was not interested in anything other than getting rid of them. They
said they would be exposed to the respondent's ruthlessness if the court did
not make an order compelling the respondent to stay the disciplinary hearings
pending the determination of the vindicatory action which it filed with the
court.
The respondent raised four preliminary matters in its
opposition to the application. The matters in question were, or are, that;
(i)
the relief which the applicants are seeking before this court is an incompetent
one
(ii)
this court does not have jurisdiction to entertain as well as determine the
application
(iii)
the application is not urgent – and
(iv)
the applicants will not suffer irreparable harm.
It is pertinent for the court to examine the abovementioned
four in limine matters, each in turn, with a view to determining
whether or not it supports the claim of the applicants or that of the
respondent. The net effect of the examination will, in the court's view, assist
in the disposal of the case in one way or the other. The court therefore
proceeds to examine the four preliminary matters as follows:-
(a) Incompetent Relief
Counsel for the respondent spoke
with a certain degree of eloquency in his effort to impress upon the court on
the need on its part to remain alive to the distinction which exists between a
vindicatory action and a disciplinary hearing. He said whilst the action was
based on the principles of common law, the hearings which the respondent
instituted against the applicants were based on the provisions of the Labour
Amendment Act number 17 of 2002. He stated that the vindicatory action which is
referred to in case number HC 10472/13 is a common law action which the
respondent, as owner of the vehicles, instituted with a view to recovering from
the applicants possession and ownership of the vehicles. He developed his
argument and stated, further, that the disciplinary hearings which the
respondent instituted against the applicants were an internal process the
result of which was aimed at disciplining the applicants for their misconduct.
He stated in a very persuasive manner that it was incompetent for the
applicants to invite the court to interdict the internal labour process on the
basis of a vindication action.
The court mentions in passing
that it was thoroughly impressed by Mr. Moyo's line of reasoning which, taken
at face value, would almost have moved the court to dismiss the application and
rule in the respondent's favour without any further ado. Mr. Moyo showed the
court that he had done a lot of research work on the matter and he had no
difficulty in arguing his client's case along the lines which he had developed.
He, to his credit, enriched the court with a number of case law authorities
which he submitted into court during the hearing of the application. The court
remains extremely grateful to him in this mentioned regard. So much, therefore,
for the legal practitioner's excellent work which he did for, and on behalf of,
his client.
The misconduct which prompted
the respondent to prefer changes against the applicants is said to have
occurred in, or around, January 2013. It occurred, the respondent said, during
a disturbance which allegedly took place at the applicants' place of work. The
respondent did not advance any reason which caused it to delay the disciplinary
hearings for a stretch of fourteen (14) months running. The misconduct is
alleged to have taken place in January, 2013 and the notices which relate to
the hearings were issued to the applicants only on 28 March, 2014.
The respondent's
employer-employee code of conduct in terms of which the charges were preferred
against the applicants was not availed to the court. The court does not,
therefore, know its contents particularly the procedures which the respondent
is enjoined to follow when it prefers charges against its employees. What the
court does know, though, is that most employer-employee codes of conduct do
contain some set standard guidelines and time lines within which charges should
be preffered against an employee, or employees, who is, or are, alleged to have
involved himself or herself, or themselves into some act(s) of misconduct. The
guidelines which are, more often than not, followed are that an investigation
into the conduct is instituted as the initial step and some recommendations are
made as a result of which charges are, or are not, preferred against the
employees(s). In casu, the respondent appears not to have followed the
outlined procedure when it proceeded to prefer charges against the applicants.
Because the court remains in the dark on the mentioned point, the court accords
to the respondent the benefit of doubt on that same matter. It does so as it
may very well be the position that the respondent's code of conduct under which
the charges against the applicants were preferred does not have in it the
procedure which is, by and large, accepted as a standard way of dealing with
disciplinary matters in most employer-employee codes of conduct.
The applicants, as has already
been stated, alleged that the hearings were aimed at nothing but getting rid of
them from the respondent's employment. They alleged that the hearings were
interconnected to their acquisition and ownership of the motor vehicles. They,
in the mentioned regard, urged the court not to take a piece-meal examination
of the matter on the point at hand. They, in short, implored the court to take
a wholistic approach to the same.
A reading of the contents of the
notices which the respondent dished out to the applicants on 28 March, 2014,
does, in the court's view, support the applicants' claim.
The wording of each one of the notices is identical and it,
in part, reads:
“The basis of the above allegation is as follows:
(a) You transferred an NP 300
Nissan Hardbody irregularly during the period of unlawful occupancy of the mine
in early 2013. This was in contravention of the Chief Executive Officer's
communique of 21 December, 2012.
(b) Ownership of the vehicle should have
reverted to the companysince all decisions made during the said occupation
were ruled unlawful and of no force or effect by the High Court.
(c) Notwithstanding management's several communications
and proferred financial assistance in the form of cash – in lieu
of leave /salary advancement to meet the costs of reversing the vehicle
ownership, you have not obliged up to now.
Therefore you are advised to appear before the Disciplinary
Authority….” (my own emphasis)
The foregoing shows in a clear and lucid manner that for
the fourteen (14) months which it did not act to, as it were, discipline the
applicants the respondent was busy compelling the applicants, in some way or
other, to hand-over the motor vehicles to it as well as to transfer ownership
of the same from the applicants' respective names into its own name. The
respondent, it is evident, made several communications with the
applicants to whom it advanced money as a way of enabling the latter to reverse
the vehicle ownership. It was only when the applicants refused to give in
to the respondent's very harsh demands which were apparently veiled in some
conciliatory tones that the respondent realised that it was not making
any headway and it, therefore, made up its mind to:
(i)
institute legal action under case number HC 10472/13 – and
(ii)
charge the applicants with an act of misconduct.
The fact that the respondent filed the vindicatory action
with the court on 5 December, 2013 and not before that date explains its
inaction for fourteen consecutive months. The court, in the premise, remains of
the view that the contemplated disciplinary action has nothing to do with
giving the applicants any fair hearing. It is, if anything, instituted mala
fides and with a certain degree of vindictiveness on the part of the
respondent who appears to have been thoroughly frustrated by the applicants'
refusal to hand over possession and ownership of the vehicles to it. The
respondent translated what it sought from the applicants through some internal
process into an apparent labour dispute which it knows this court is
precluded from hearing, let alone making a determination upon. The net effect
of the charges which the respondent preferred against the applicants is one and
the same thing namely transfer of possession and ownership of the motor
vehicles. (my own emphasis). The applicants stated as much and the
respondent confirmed the same in the vindicatory action which it instituted
against the applicants.
Paragraph (a) of the notices
which the respondent issued to the applicants is pertinent. The paragraph
makes reference to the manner in which the applicants proceeded to acquire
possession and ownership of the vehicles. The respondent said that
possession and ownership were done unlawfully. The applicants' assertion
on that point is to the contrary. The court remains of the firm view that
the vindicatory action which the respondent instituted will resolve that
dispute.
The respondent confused issues when it
stated, as it did, that the purported charges against the applicants were, or
are, separate and distinct from the vindication action which it
instituted. The charges have nothing to do with disciplining the
applicants. They, in the court's firm view, have everything which relates
to the possession and ownership of the motor vehicles. This, therefore,
is not a matter which falls to be decided in terms of the respondent's code of
conduct. It is, in short, not a matter for disciplinary, but vindicatory,
action which this court is competent to deal with. The respondent's
argument on this point does not, therefore, hold.
(b) Jurisdiction
This preliminary matter is easily discounted on the basis
of the reasoning and findings which the court made in the first matterin
limine. This entire case, it is observed, is hinged on the
vindicatory, and not disciplinary, action which the respondent appears to want
the court to accept. The court is satisfied that it has the requisite
jurisdiction to hear as well as to make a determination which binds the parties
to observe and respect the court's decision on the same. It is the court's view
that the respondent brought into the equation the far-fetched issue of its
purported desire to discipline the applicants as a way of confusing issues
which are in themselves clear. The court is satisfied that it has never
been, nor is it now, the intention of the respondent to prefer against the
applicants' charges which are devoid of malice on its part. Any charges
which are preferred against the applicants mala fides as appears to be
the respondent's desire in casu constitute an unfair labour practice
and therefore unlawful. Section 7 (1) (b) of the Labour Act; [Cap 28:01]
is pertinent on the point. Neither the Labour Court nor this court, let
alone the law supports the respondent's action of translating what is a purely
civil matter between the parties into a purported labour dispute solely as a
way of punishing the applicants for their perceived stubbornness.
If the respondent did have a
genuine, as opposed to a vindictive, grievance against the applicants, it would
not have sat on its intended action for the length of the observed period of
time without doing anything about the matter which it appears to have held so
dearly to it.
The law and the courts guard jealously their inherent right
as well as duty to interfere with employers who take the law into their own
hands under the guise that they want to discipline members of their workforce
when, in actual fact, their aim and object are totally different from what they
say they want to achieve in a lawful manner. Once it is discovered, as it
was in the present case, that the employer's purported conduct is unlawful and
can best be resolved through lawful means, the court would be failing in its
duty if it did not and does not put an effective stop to that conduct.
The respondent did well to
institute the action which it did under case number HC 10472/13. The
court which is seized with the matter will, in the fullness of time, determine
the unlawfulness, or otherwise, of the applicants' conduct. The court is,
accordingly, satisfied that it is clothed with the jurisdiction not only to
hear the present application but also to determine its merits and demerits as
well as coming up with a clearly defined position on the same. The
respondent's argument on this second preliminary matter does not, therefore,
hold.
(c) Urgency
It was the respondent's submission on this preliminary
matter that the present application was not urgent. The respondent stated
that the applicants should have foreseen that disciplinary proceedings would be
instituted. This intended process, it said, became apparent to the
applicants as far back as early January, 2013 when the respondent brought the
application in the matter which the court determined under HC770/13 wherein the
court ruled in its favour. It stated that, if the applicants needed to
act to interdict any disciplinary proceedings, they should have done so in
early January, 2013 or at the latest in December 2013 when the respondent
instituted the vindication action.
The applicants, on their part, argued that they acted when they saw the charges
which had been preferred against them and not before that time. The court
agrees with the position which the applicants took of the matter on this
point. They could not act on nothing. They were not joined to the
application which the respondent filed with the court under case number
HC770/13. The respondent did not inform the court that it drew the
applicants' attention to the outcome of its mentioned application. It, on its
part, did not prefer any charges against them at about the time which it says
they should have foreseen that disciplinary proceedings would come their
way. All it did was to engage them - verbally or otherwise – to return
ownership of the motor vehicles to it. Nor would the applicants
have been persuaded to think that the vindication action which the respondent
instituted in December, 2013 would lead to some misconduct charges being
preferred against them three months after the action was filed with the court.
Everything appeared normal and lawful to them until 28 March, 2014 when they
saw that the respondent's conduct was going outside the law and had, therefore,
to be arrested.
The disciplinary hearing notices which the respondent addressed to the applicants
are dated 28 March, 2014. The hearings were set down for 3 and 4 April,
2014. The applicants did not indicate the date(s) on which the notices
were served upon them. They, however, prepared the papers which relate to
this application on 1 April, 2014 and filed the same with the court on 2 April,
2014. They suffered a delay of some three (3) or four (4) days before
their application was with the court. They cannot, in view of the
foregoing, be said not to have treated their case with the urgency which it
deserved. The court would have viewed their action as having been an
unreasonable one if they acted before the charges were preferred against them
as the respondent argued. That would have been so as they would have
acted out of an imagined, as opposed to a real, threat. The charges which
the respondent served upon them were and are a real threat which calls upon the
court to entertain and make a determination of the same.
(d) Irreparable harm
The applicants stated that they would be exposed to the respondent's
ruthlessness if their application was not granted. They stated further
that the respondent's desire was to kick them off their employment.
There is, in the court's view, no harm which is worse than that of depriving a
person of his means of livelihood. That harm is difficult, if not
impossible, to repair. The observed mala fides with which the
respondent preferred the charges against the applicants was indeed aimed at
nothing else other than ensuring that the latter's rights of protection of the
law as well as their employment prospects were under serious threat.
The respondent argued, erroneously though, that if the applicants remained of
the view that the disciplinary hearings were not fairly conducted, they had the
right of appeal beyond the work - place to the Labour Court as well as to the
Supreme Court.
It, in the mentioned regard, sought to persuade the court to subscribe to the
view that the applicants did, or do, have alternative remedies which they could
take advantage of where the respondent unfairly dealt with then. That the
respondent was going to deal with them unfairly is taken as given. Once that
has occurred, it is not certain if the applicants would have had the means with
which to pursue the avenues which the respondent said were, or are, open to
them. For a start, they would most probably have lost their employment.
They would, in that case, have had to grapple with placing food on the table
for their respective families in addition to marshalling the requisite
financial resources to prosecute their appeal. The net effect is that the
avenues which are seemingly open to them would have been closed against them
for eternity. Justice does not come cheaply to those who are in search of it as
the respondent would have the court believe. The respondent's argument on
this point is, once again, discounted as not being a valid one.
The applicants prayed that the court grants them an interdict.
They want the respondent to be compelled to stop the disciplinary hearings
pending finalisation of the vindication action which is before this court.
The requirements for an interdict were aptly stated in Nyika Investments
(Pvt) Ltd v ZIMASCO Holdings (Pvt) Ltd & ORS, 2001
(1) ZLR 212 wherein CHATIKOBO J (as he then was) remarked:
“Interdicts are based on rights which, in terms of the
substantive law, are sufficient to find a cause of action. The right need
not be a clear right whose existence is proved on a preponderance of probability.
Where a clear right is shown to exist, then the applicant for an interim
interdict need not show that he will suffer irreparable harm if the interdict
is not granted. He merely has to show that an injury has been committed
or that there is a reasonable apprehension that an injury will be committed
....”
The court associates itself with the learned Judge's
abovementioned remarks on this matter. The applicants' apprehension of
what would befall them if the disciplinary proceedings are not halted is very
real. They, on their part, established the urgency of their application
which they treated with the urgency which it deserved. They established
their case, on a balance of probabilities, to the satisfaction of the court.
The application is, in the premises, granted as prayed.
Matsikidze and Mucheche Commercial Law Chambers, applicants' legal practitioners
Gill,
Godlonton & Gerrans, respondent's legal practitioners
