HLATSHWAYO
JA:
This
is an appeal against the entire judgment of the Labour Court handed
down on 14 December 2012 under case number LC/REV/H/86/2011 wherein
the appellant's application for review was dismissed for lack of
merit.
The
facts that have a bearing on this matter are as follows:
The
appellant was employed by the respondent as a Divisional Officer in
the Public Safety Department. On 11 May 2011, the respondent
preferred charges of misconduct against the appellant, citing
extortion, corruption and conduct that raised a clear conflict of
interest.
The
appellant was charged in terms of Part IV, Clause 4(iv) of
S.I.17/2007 (S.I. 17/2007) being the Collective Bargaining Agreement,
Harare Municipal Undertaking (Code of Conduct and Grievance Handling
Procedure).
It
was alleged that the appellant had abused his office to improperly
secure work from a trucking company for the benefit of a consultancy
company in which he was the owner and Director. The trucking company
was subject to inspections by the appellant of its fuel depot complex
for compliance with city fire and safety regulations. It was averred
that the appellant threatened the trucking company with the
non-approval of its construction plans and closure of its depot for
non-compliance with safety regulations if it did not acquiesce to his
demands.
It
was under this threat that the appellant was able to acquire work for
his consultancy firm which was paid US$7,500, employment for a
relative, and fuel for himself from the trucking company.
Matters
finally came to a head when the appellant demanded that he be
contracted and paid US$107,000.00 to construct fuel tanks for the
trucking company or he would cause the closure of its depot. The
trucking company then alerted the respondent to the activities of the
appellant, resulting in the charge of misconduct against him.
The
disciplinary committee heard the matter on 23 May 2011. Whilst the
appellant denied the allegations, he was eventually found guilty of
the offence and dismissed from employment.
Aggrieved,
the appellant approached the Labour Court with an application for
review citing procedural irregularities. The application raised five
grounds for review which challenged the proceedings of the
disciplinary committee on the basis that an invalid code of conduct
had been adopted by the respondent. The composition of the
disciplinary committee was queried by the appellant on the basis that
it was not chaired by a person who had the same grade as the
applicant. The appellant also averred that the disciplinary
proceedings were not in compliance with the relevant code of conduct
in that proceedings ought to have commenced and been finalized within
thirty days from the date of discovery of the alleged offence. It was
the appellant's submission that whilst the alleged offence was
committed during the subsistence of S.I. 17/2007, the hearing should
have subsequently been conducted in terms of S.I. 171/2010 (S.I.
171/2010) which repealed and substituted the former.
The
respondent disputed the submission arguing that the repeal of a law
did not affect the previous operation of any enactment repealed or
anything done under the repealed law. It was submitted that the use
of S.I. 171/2010 would be tantamount to applying a statute with
retrospective effect. The respondent contended that the applicable
statute was S.I. 17/2007 as it was the code of conduct in force at
the time of the commission of the offence.
The
Labour Court found favour with the arguments presented by the
respondent and dismissed the point.
The
court a quo further found that the objection to the composition of
the disciplinary committee was premised on a code of conduct already
deemed as inapplicable by the court.
On
the matter of days within which the disciplinary proceedings were to
be instituted and finalized, the court a quo found that proceedings
commenced on 11 May 2011, being the date upon which the appellant was
served with a formal charge letter concerning the alleged misconduct.
The disciplinary hearing was duly convened on 23 May 2011 and a
determination communicated to the appellant on 13 October 2011.
Due
regard being had to the foregoing, it was established that
proceedings were concluded outside the stipulated time frame of
thirty days.
However,
the court a quo stated that the applicant ought to have raised the
irregularity at the hearing, which it failed to do on account of the
fact that the applicant had walked out of proceedings together with
his legal representative.
The
court a quo was of the view that the applicant was partly to blame as
he failed to exercise the remedies available to him upon a
realisation of the irregularity. It was held that the application by
the applicant was based on academic considerations and technicalities
in the pursuit of abuse of court process. Accordingly, the issue was
dismissed.
Dissatisfied
with the decision of the court a quo, the appellant appealed to this
Court on the following grounds of appeal:
1.
The court a quo erred and misdirected itself on a point of law in its
interpretation of S.I.17/2007 and S.I.171/2010 and failed to
appreciate that the respondent could not conduct disciplinary
proceedings against the appellant in May 2011 in respect of
allegations of misconduct which came to the attention of the
respondent in November 2009.
2.
The court a quo misdirected itself as far as the law of
interpretation of statutes is concerned and consequently failed to
appreciate that whilst the charges of misconduct against the
respondent were as defined by the repealed S.I.17/2007, the procedure
to be followed by the disciplinary committee, ought to have been
provided for in S.I.171/2010 which was the respondent's code of
conduct as of May 2011.
3.
The court a quo erred in failing to appreciate that the improper
composition of the respondent's disciplinary committee, which was
admitted by the respondent, had prejudiced the appellant and
accordingly warranted the setting aside of the disciplinary
proceedings.
4.
Having found as a matter of fact, that the respondent's
disciplinary committee failed to finalise the disciplinary
proceedings within the period prescribed by the code of conduct, the
court a quo erred in failing to set aside the disciplinary
proceedings since the respondent's code of conduct makes it
mandatory for the referral of such proceedings to a Designated Agent
of the National Employment Council for the Harare Municipal
undertaking. The code does not give the respondent discretion on
whether or not to continue with the proceedings beyond the period
stipulated by the code of conduct.
The
key issues for determination by this Court are three-fold;
(a)
Firstly, there is need to establish the applicable code of conduct to
the disciplinary proceedings between the appellant and the
respondent.
(b)
Secondly, the court must determine whether or not the disciplinary
committee was properly constituted and if that was not the case the
implications thereof.
(c)
Finally, the appellant has enjoined this Court to consider whether or
not the disciplinary committee proceedings were conducted in
accordance with the time limits imposed by the relevant code of
conduct.
It
is the appellant's contention that S.I. 171/2010 was the applicable
code of conduct to the disciplinary proceedings brought against him.
However,
the correct position of law in instances where an earlier statutory
instrument has been subsequently repealed by another is clearly and
plainly established in section 17 of the Interpretation Act [Chapter
1:01] which provides as follows:
“17.
Effect of repeal of enactment
(1)
Where an enactment repeals another enactment, the repeal shall not…
-
(a)…;or
(b)
Affect the previous operation of any enactment repealed or anything
duly done or suffered under the enactment so repealed; or
(c)
…; or
(d)
…; or
(e)
Affect any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, penalty … and any
such investigation, legal proceeding or remedy shall be exercisable,
continued or enforced… as if the enactment had not been so
repealed.” (Emphasis added)
A
South African authority, which is of persuasive value to this Court,
similarly sets out the following in Curtis v Johannesburg
Municipality 1906 TS 308 at p 311:
“In
the absence of express provisions to the contrary, statutes should be
considered as affecting future matters only and more especially…they
should if possible be so interpreted as not to take away rights
actually vested at the time of their promulgation.” (Emphasis
added)
The
respondent has correctly submitted that no impropriety arises from
adopting legislation that was in force at the time that the offence
was committed. Accordingly, since the alleged offence was committed
sometime in November 2009, during which time the applicable code of
conduct was S.I. 17/2007, I find that the court a quo applied the
correct principle to the facts and correctly held that S.I. 17/2007
was the applicable code of conduct to the disciplinary proceedings
against the appellant.
The
second issue raised by the appellant is that the composition of the
disciplinary committee was irregular and that the irregularity was
prejudicial.
In
the circumstances, the court notes that the submission was made on
the presupposition that the applicable code of conduct was
S.I.171/2010. In view of the finding that the applicable code of
conduct was S.I.17/2007, no basis exists upon which to consider the
submission. I find no fault in the determination of the court a quo
in this regard.
On
the final issue, regarding non-compliance with the time limits
provided for by the relevant Code, it has been established that there
was clear non-compliance in that disciplinary proceedings ought to
have been initiated and concluded within thirty days.
The
established position in our law was considered in the case of Vutete
v Chairperson of the Appeals Committee (ZOU) & Anor HH257/18
wherein it was stated:
“…
that
the Appeals Committee failed to determine the appeal timeously does
not render their decision wrong.”
This
position finds support in the sentiments by Gillespie J in Nyoni v
Secretary to Public Service Labour & Social Welfare & Another
1997 (2) ZLR 516 (H) at 523 A-B which I find compelling;
“an
employee validly suspended does not, because of delay alone, became
entitled to reinstatement nor to reversal on review of a subsequent
dismissal. Instead, they (the parties) each have available to them
the remedy of mandamus to enforce due compliance with that which is
timeous.” (Emphasis added)
It
appears to me that where delay exists, it merely gives the aggrieved
party the right to the remedy of a mandamus to enforce due compliance
with any time limits that are requisite.
It
is common cause that the appellant walked out during the proceedings
of the disciplinary committee and subsequently failed to raise the
irregularity and seek the appropriate remedy. The right to redress is
clearly vested in the appellant. In the present instance, the
appellant chose not to exercise this right and as such cannot seek to
rely upon it after the fact. Accordingly, I find favour with the
position of the court a quo in dismissing the objection by the
appellant.
Ultimately,
the court a quo aligned itself with correct principles of law in
relation to the circumstances.
It
is of concern that the appellant has not sought to deny allegations
levelled against him and defend himself but rather has sought to
deploy allegations of procedural irregularities to escape liability.
Nonetheless,
the appeal itself is devoid of merit and stands to be dismissed with
costs following the outcome.
Accordingly,
the appeal is dismissed with costs.
GUVAVA
JA: I agree
CHIWESHE
AJA: I agree
Danziger
& Partners, appellant's legal practitioners
Mbidzo
Muchadehama & Makoni, respondent's legal practitioners
