Audi Alteram Partem Rule re: Approach, Orders Granted Without a Hearing and the Doctrine of Notice

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the judgment of the Labour Court confirming, with an amendment, a ruling by a Labour Officer that the appellant was guilty of an unfair labour practice and that the appellant pays to each of the respondents arrear compensation due to them for the period March 2011 to September 2015.

The appellant seeks an order setting aside the confirmation, and, in its place, another order dismissing the application for confirmation with no order as to costs.

Having gone through the papers filed in this matter, and after hearing counsel, I am not persuaded that the Labour Court was, except for part of its order, wrong in confirming the ruling by the Labour Officer.

BACKGROUND FACTS

The first respondent herein, Fungai George Mutasa, is a Labour Officer to whom an allegation of unfair labour practice was referred by the second to the eleventh respondents (“the respondents”) (A.B. Morar, A.J. Bosch. E. Eston, E. Gavaza, A.J. Van Rensburg, R.T. Karidza, L. Mabika, D.I. Mackintosh, I. Middleton and Mushoriwa).

He unsuccessfully attempted to settle the matter by conciliation following which he then heard the parties in order to come up with a draft ruling in terms of section 93(5)(c) of the Labour Act [Chapter 28:01] (“the Act”).

The respondents are employed by the appellant and fall in what the appellant calls the E Band employment grade. The appellant is a wholly-owned subsidiary of Tongaat Hullett, a South African company.

In addition to the benefits they enjoyed in Zimbabwe, in terms of their conditions of employment commensurate with their grade, the respondents also enjoyed membership of the Tongaat Hullett Pension Fund, a South African registered pension fund as well as the Discovery Essential Saver Plan, which enabled them to access medical services in South Africa.

On 21 February 2011, the respondents were advised of the intention to terminate their entitlement to both the Pension Fund and the Discovery Essential Saver Plan with effect from 28 February 2011.

It was indicated, in that communication, that, the respondents would each be paid accrued benefits in cash or alternatively such benefits would be transferred to a retirement annuity or pension preservation fund held in each employees name with a registered entity of the employee's choice in South Africa. It was further indicated that the cost related to the current monthly fund contributions would be incorporated into each employee's monthly United States Dollar package in Zimbabwe with effect from 1 March 2011.

As regards the Discovery Essential Saver Plan, compensation was to be paid by incorporating the monthly member contributions, which translated to a hundred per cent contribution by Tongaat Hullett, into each employee's monthly United States Dollar package in Zimbabwe.

The exchange of correspondence between the parties reveals that the respondents made several follow-ups to have the compensation paid and the contributions incorporated into their cash packages.

This was to no avail.

The papers further show that the appellant demanded that the respondents move from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan Pension Scheme to enable these benefits to be processed.

Owing to the stalemate, the respondents approached the High Court, and, in an order dated 26 February 2015, the court determined that the Triangle Senior Staff Pension Fund (TSSPF) remained valid and binding and that there was no obligation on the respondents to migrate to the Money Plan. The court consequently ordered the appellant to commence making its contributions and to actuate the Triangle Senior Staff Pension Fund (TSSPF). The appellant was further ordered to pay the costs of the application.

That order remains extant as it was not appealed against.

Notwithstanding that order, the appellant did not pay compensation or incorporate the monthly contributions into the employee's monthly United States Dollar package.

In their statement of claim before the Labour Officer, the respondents averred, that, in addition to benefits accruing in Zimbabwe, their conditions of service also provided for contractual entitlements to the Tongaat Hullett Pension Fund and the Discovery Essential Saver Plan, both of which were operational in South Africa.

They further averred, that, it was the appellant that undertook to pay to each employee the accrued fund benefits or to transfer such fund to a retirement pension preservation fund and to incorporate the monthly fund contributions into the cash packages in Zimbabwe.

They averred, further, that, the pension fund and Saver Plan were open to all employees in the E Band regardless of the nature of one's pension in Zimbabwe.

The decision not to pay the respondents was a punitive measure because the respondents had dared to assert their rights to membership of the Triangle Senior Staff Pension Fund (TSSPF) in the High Court.

The respondents further alleged, that, the appellant had accepted its obligation to compensate the respondents when it communicated its decision to terminate the two benefits.

The appellant had then proceeded to pay those employees who had agreed to join the Money Plan Pension Scheme in Zimbabwe but had then withheld compensation to the respondents.

They therefore submitted, that, by withholding the compensation, the appellant and its directors were guilty of an unfair labour practice.

They therefore asked for a ruling directing the appellant to cease the unfair labour practice and to pay the arrear compensation. They further averred that the amounts should be paid “without any additional tax losses” by them.

In its response to the complaint, the appellant stated that the benefits which formed the subject of the matter were availed as a measure to cushion the employees from the harsh economic situation obtaining in Zimbabwe at the time and that these benefits were being administered by Tongaat Hullett, a South African company and the holding company of the appellant.

The benefits did not become vested in the contracts of employment of the respondents and remained discretionary on the part of the holding company. Therefore, so the appellant argued, whatever obligations the holding company created pursuant to the grant of these benefits do not bind the appellant. The benefits were paid and administered by Tongaat Hullett, and, consequently, the appellant, as a subsidiary, had no obligation to actuate those benefits.

The appellant further submitted, that, any claims that had arisen more than two years before the hearing of the matter were prescribed in terms of section 94 of the Labour Act. In other words, if it was found that an unfair labour practice resulting in the underpayment of the respondents had taken place, then the monthly underpayments would constitute separate causes of claim.

In his analysis of the evidence and submissions made on behalf of the parties, the Labour Officer found that the letter of 21 February 2011 unequivocally placed an obligation on the appellant to compensate the respondents and to incorporate the monthly fund contributions and member contributions into the respondents United States Dollar cash package in Zimbabwe with effect from 1 March 2011.

He further found, that, the fact that the pension fund was administered by another agency other than the appellant itself did not mean the employees were employed by that agency.

He therefore concluded that the payment of compensation of accrued benefits was a right.

This was moreso given the fact that the other employees in the same grade as the respondents, who had migrated to the Triangle Money Plan, have accessed their pension fund contributions and have had their Saver Plan incorporated into their monthly cash package in Zimbabwe.

On the question of prescription, he found, that, as the parties had been communicating over the issue, the matter was of a continuous nature and therefore the claim had not become time-barred.

Lastly, he found, that, when the appellant's Managing Director wrote to the respondents, at no stage did he indicate that he was not writing on behalf of the appellant and that he was doing so on behalf of the holding company.

Consequently, he concluded, that, by withholding the benefits, the appellant was guilty of an unfair labour practice. He therefore ordered that the appellant cease such unfair labour practice and pay individual arrear compensation to each of the respondents.

PROCEEDINGS BEFORE THE LABOUR COURT

Having made the above draft ruling, the Labour Officer referred the same to the Labour Court for confirmation in terms of section 93(5)(a) of the Labour Act.

In its submissions before the Labour Court, the appellant argued that the Labour Officer had grossly erred in finding that the benefits, the subject of this matter, had become vested in the contracts of employment entered into by the respondents. The benefits remained discretionary on the part of Tongaat Hullett.

It further argued that whatever obligations Tongaat Hullett may have created were not binding on the appellant, a mere subsidiary.

Lastly, the appellant submitted that the Labour Officer had misdirected himself in not finding that some of the claims by the respondents had prescribed.

Having submitted their complaint to the arbitrator in September 2015, the respondents would only have succeeded on those claims that had arisen after September 2013, i.e. within the period of two years from the date when the unfair labour practice or dispute arose. The monthly underpayments would have constituted separate causes of action. Therefore, the pensions claimed from March 2011 to September 2013 would have become prescribed.

In their submissions before the Labour Court, the respondents stated as follows:

The appellant was attacking findings of fact made by the Labour Officer. There was no allegation that such findings were irrational.

On prescription, they submitted that the unfair labour practice was continuing at the time the matter was referred to the Labour Officer and that, in terms of section 94(2) of the Labour Act, the claims had not prescribed.

The Labour Court agreed with the Labour Officer, but for a different reason; that the unfair labour practice was continuing and therefore the claim was not prescribed in light of section 94(2) of the Labour Act.

The court agreed with the other factual findings made by the Labour Officer but was of the view that the order directing the Managing Director and Board of Directors to effect payment was irregular as they had not been heard before the order was made.

The court accordingly confirmed the draft ruling but amended it to remove the reference to the Managing Director and Board of Directors from the order.

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.

SC107-21 : METALLON GOLD ZIMBABWE (PVT) LTD and OTHERS vs SHATIRWA INVESTMENTS (PVT) LTD and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE and MASTER OF THE HIGH COURT and REGISTRAR OF COMPANIES
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

This is an appeal against the decision of the High Court (“the court a quo”) which placed the first (Metallon Gold Zimbabwe (Pvt) Ltd), the second (Goldfields of Shamva (Pvt) Ltd) and the third (Goldfields of Mazowe (Pvt) Ltd) appellants under corporate rescue proceedings in terms of section 124(1)(a) of the Insolvency Act [Chapter 6:07] (“the Insolvency Act”).

The judgment of the High Court dealt with two separate applications, numbers HC2619/19 and HC2696/19, which were consolidated for the purposes of hearing them.

The Court holds, that, the respondents did not comply with the mandatory provisions of section 124 of the Insolvency Act, which required them to notify each affected party of the application by standard notice.

The respondents failed to notify each affected party by “standard notice” as is prescribed by section 2 of the Insolvency Act.

Such non-compliance with peremptory provisions of the Insolvency Act rendered the application for corporate rescue fatally defective.

This Court finds, that, the second respondent (Associated Mine Workers Union of Zimbabwe), being the only respondent before this Court, had no locus standi to make the application for corporate rescue as it does not meet the definition of “affected person” in terms of section 120 of the Insolvency Act [Chapter 6:07].

The second respondent is a registered trade union representing employees in the mining industry and not a registered trade union representing employees of the company as envisaged by section 120 as read with section 124 of the Insolvency Act.

Further, the second respondent (Associated Mine Workers Union of Zimbabwe) fails to meet the criteria of a creditor, as the judgment it relied upon is not against the first appellant but against a different party.

It bears mentioning, that, the first respondent was in default at the hearing of the appeal as it realised it could not possibly defend the judgement of the court a quo.

FACTUAL BACKGROUND

The first respondent (Shatirwa Investments (Pvt) Ltd) (being a creditor of the appellant companies) and the second respondent (Associated Mine Workers Union of Zimbabwe) (being a registered trade union in the mining industry) sought an order in the court a quo that the appellants (Metallon Gold Zimbabwe (Pvt) Ltd, Goldfields of Shamva (Pvt) Ltd, Goldfields of Mazowe (Pvt) Ltd) and Mazowe Mining Company (Pvt) Ltd) be placed under corporate rescue in terms of section 124(1) of the Insolvency Act [Chapter 6:07].

They alleged, that, the appellants were failing to pay creditors and that it was very likely that the appellants would become insolvent within the immediately ensuing six months, making them worthy candidates for corporate rescue.

The first respondent, armed with an order against the appellants for US$6,394,232 issued in case HC6197/18, made the application for corporate rescue as an “affected person” being a creditor of the appellants, in terms of section 121(1)(a)(i) of the Insolvency Act.

The second respondent (Associated Mine Workers Union of Zimbabwe), in making its application, averred that it was an “affected person” in that it was a registered trade union in the industry.

The second respondent further stated, that, it also derived its locus standi from its status as a creditor of the second (Goldfields of Shamva (Pvt) Ltd) and the fourth (Mazowe Mining Company (Pvt) Ltd) appellants.

No judgment against the second and the fourth appellants was attached to the founding affidavit before the court a quo to support the claim of locus standi. It attached a copy of a judgment obtained against the first appellant (Metallon Gold Zimbabwe (Pvt) Ltd) but no claim was made against the first appellant in the court a quo on the basis of that judgement.

In defending the matter, the appellants raised a number of points in limine.

In case HC2619/19 the locus standi of the first respondent (Shatirwa Investments (Pvt) Ltd) was disputed, on the basis that its creditor status was compromised as the parties had entered into agreements for the settlement of the debt.

The first appellant (Metallon Gold Zimbabwe (Pvt) Ltd) further raised the point, that, the first respondent had failed to comply with the requirements of section 124(2)(b) of the Insolvency Act requiring an applicant for a corporate rescue order to notify each affected person of the application by standard notice.

At the hearing of the applications, the first appellant (Metallon Gold Zimbabwe (Pvt) Ltd) raised the preliminary objection that the first respondent (Shatirwa Investments (Pvt) Ltd) did not serve the Master of the High Court and the Registrar of Deeds with the applications.

The first appellant argued, that, the Master of the High Court had to be served with the applications as he was required to provide a report.

Pertaining to case HC2696/19, the appellants raised the preliminary objection that the application was not served on the fourth appellant (Mazowe Mining Company (Pvt) Ltd).

They further argued, that, the second appellant (Goldfields of Shamva (Pvt) Ltd) was a non-existent entity as it had changed its name from Gold-Fields of Shamva (Pvt) Ltd to Shamva Mining Company (Pvt) Ltd.

The second respondent (Associated Mine Workers Union of Zimbabwe), however, filed a notice of withdrawal in relation to the second appellant.

The appellants also raised the point, that, the second respondent (Associated Mine Workers Union of Zimbabwe) did not comply with the peremptory statutory requirement to notify all “affected persons” as envisaged in section 124(2)(b) of the Insolvency Act.

Subsequent to the hearing of the consolidated applications, the appellants filed two applications, in terms of Rule 235 of the High Court Rules 1971, for leave to file a further affidavit.

The appellants intended to file an affidavit conveying to the court, that, they had managed to raise $39,129,459=03. The contention was that they were now in a position to settle their debts with their creditors and provide working capital to revive the operations of the mines.

The court a quo dismissed all the points in limine raised by the appellants.

The court a quo found, that, section 124(2)(b) of the Insolvency Act [Chapter 6:07] did not provide for the manner or form of notification of “affected persons.”

The court a quo found, that, the respondents had effected proper notice on the appellants by publication in a local newspaper. The court a quo held that such notification was sufficient compliance with the requirements of the statute in the absence of knowledge of all “affected persons.”

Regarding the issue of the failure to serve the Master of the High Court with the application, the court a quo relied on the principle that what is not denied is deemed to be accepted.

Therefore, since the appellants did not raise the issue of non-service in their notice of opposition, they were deemed to have accepted that the Master of the High Court was duly notified.

In relation to the merits of the matter, the court a quo took into consideration the supporting affidavit filed by the appellants in terms of Rule 235. The court found, that, the said affidavit corroborated the case for corporate rescue, as the position taken in the additional affidavit contradicted the positions taken in the opposing affidavits.

The court expressed the view, that, in case HC2619/19, the appellants admitted indebtedness to the first respondent, but, argued that they had entered into a settlement agreement, the consummation of which was being stalled by the delay in retrieving a mining lease. They further averred that they were not in financial distress so as to warrant corporate rescue as their assets exceeded liabilities.

The finding was that no evidence was produced to support the averments.

The court also found, that, the appellants had not been open and candid with the court as they had not disclosed their production plans, projections, estimates, and financial status. The finding was that it would be impossible for the court to project that the appellants positions, in both matters, could reasonably be expected to change for the better within six months.

The court further found, that, the appellants did not present evidence to show that they were not financially distressed. They failed to place information before the court from which it could determine that in the ensuing six months the companies would be able to pay off their debts. The court also found, that, no revival plans were placed before it.

Consequently, the court a quo granted the application for corporate rescue, setting out the corporate rescue practitioners to be engaged.

Aggrieved by the decision of the court a quo, the appellants noted the present appeal.

SUBMISSIONS BEFORE THE COURT

The appellants submissions

Counsel for the appellants submitted, that, there is a very specific procedure to be followed when commencing corporate rescue proceedings. He argued, that, the respondents failed to comply with section 124(2)(b) of the Insolvency Act [Chapter 6:07] which requires an applicant for corporate rescue to notify each “affected person” of the application by 'standard notice.'

He rightly stated, that, the court a quo erred in finding that neither the manner of notification nor the form or content of “standard notice” was defined in the Insolvency Act.

Counsel for the appellants argued, that, the court a quo erred in applying a purposive interpretation of the statute, when the ordinary grammatical meaning of the words was clear and unambiguous.

He further submitted, that, the respondents could not hide behind the assertion that they did not have information of all “affected persons” as they could have obtained such information from the appellants had they requested for it.

Counsel for the appellants contended, that, an assessment of whether or not a company is in financial distress can only be effectively conducted when the creditors of the company are known. Thus, he queried how the respondents could determine that the appellants were in financial distress without having obtained information of their debts and creditors.

He stated, that, the advertisement published by the respondents in a local paper could not possibly be deemed to have notified all “affected persons” as it was beyond the reach of foreign creditors.

Counsel for the appellants also submitted, that, the second respondent (Associated Mine Workers Union of Zimbabwe) had no locus standi to institute an application for corporate rescue.

He argued, that, in terms of the Insolvency Act, only an “affected person” could institute such proceedings.

He argued, that, the second respondent (Associated Mine Workers Union of Zimbabwe) was not a registered trade union representing the employees of the appellants, as prescribed by section 121(1)(a)(ii) of the Insolvency Act. It was a registered trade union in the mining industry.

Counsel for the appellants further argued, that, the second respondent could also not derive legal standing from the provisions of section 121(1)(a)(i) of the Insolvency Act as it was not a creditor of the first appellant (Metallon Gold Zimbabwe (Pvt) Ltd).

He submitted, that, the court order from which the second respondent (Associated Mine Workers Union of Zimbabwe) claimed to derive locus standi was not against the first appellant but another company known as Metallon Gold.

Counsel for the appellants argued, that, the Legislature painstakingly laid down the procedures to be followed in corporate rescue proceedings as the process has dire consequences, in that the mere institution of proceedings initiates the process of corporate rescue.

The second respondent's submissions

Counsel for the second respondent (Associated Mine Workers Union of Zimbabwe) submitted, that, the appellants preliminary objection a quo was not raised in respect of a particular creditor who was not notified. He said the objection was raised as a bald allegation on the invalidity of the service of notice. He argued, that, the respondents served notice on creditors and attached e-mails to that effect. It was through an abundance of caution that the respondents caused the further publication of the notice in the newspaper.

In respect to the issue of locus standi, counsel for the second respondent argued, that, the appellants failed to raise that issue before the court a quo in the opposing papers. He argued, that, the principle that what is not disputed is deemed to be admitted ought to be applied against the appellants.

He further argued, that, in terms of section 29 of the Labour Act [Chapter 28:01], a trade union represents employees in an industry, whereas a workers committee represents employees at the workplace. The contention was that the second respondent (Associated Mine Workers Union of Zimbabwe) enjoyed legal standing to institute corporate rescue proceedings against the appellants in the court a quo....,.

THE PROCEDURE AND EFFECT OF CORPORATE RESCUE

The Insolvency Act [Chapter 6:07] provides two ways of commencing corporate rescue proceedings:

(i) The first procedure is in terms of section 122(1) of the Insolvency Act, which provides that the Board of a company, or, its shareholders, can make a resolution to institute corporate rescue proceedings.

This procedure is voluntary and does not require the company to approach a court.

The resolution placing the company under supervision can only be taken if the company is financially distressed, in that, it is unable to pay its debts and there appears to be reasonable prospects of rescuing the company.

For the resolution to be effective, it must be filed with the Master of the High Court, the Registrar of Companies, and the Registrar of Co-operative Societies, in the case of a co operative society.

The company must, within five business days after filing the resolution, notify every “affected person” and appoint a corporate rescue practitioner who satisfies the requirements of section 131 of the Insolvency Act.

The responsibility of the corporate rescue practitioner is to oversee management of the company during the corporate rescue proceedings.

(ii) The second procedure, which is the procedure adopted in this matter, is made by way of an application to court for an order commencing corporate rescue proceedings.

The procedure to be followed, in terms of section 124 of the Insolvency Act [Chapter 6:07], is as follows:

“(1) Unless a company has adopted a resolution contemplated in section 122, an affected person may apply to a Court, at any time, for an order placing the company under supervision and commencing corporate rescue proceedings.

(2) An applicant, in terms of subsection (1), must —

(a) Serve a copy of the application on the company, the Master, and the Registrar of Companies; and

(b) Notify each affected person of the application by standard notice.

(3) Each affected person has a right to participate in the hearing of an application in terms of this section.

(4) After considering an application in terms of subsection (1), the Court may —

(a) Make an order placing the company under supervision and commencing corporate rescue proceedings, if the Court is satisfied that —

(i) The company is financially distressed; or

(ii) The company has failed to pay over any amount in terms of an obligation under or in terms of a public regulation, or contract, with respect to employment-related matters; or

(iii) It is otherwise just and equitable to do so for financial reasons; and there is a reasonable prospect for rescuing the company; or

(b) Dismissing the application, together with any further necessary and appropriate order, including an order placing the company under liquidation.”

The application for corporate rescue is filed before the High Court by any affected person.

Section 121(1)(a) of the Insolvency Act defines “affected person” as follows:

“(i) A shareholder or creditor of the company; and

(ii) Any registered trade union representing employees of the company; and

(iii) If any of the employees of the company are not represented by a registered trade union, each of those employees or their respective representatives.”...,.

APPLICATION OF THE LAW TO THE FACTS

It appears to the Court, that, this matter can be disposed of by answering one pertinent issue, which is: whether or not the failure to comply with the mandatory provisions of the Insolvency Act rendered the application a nullity.

It has already been established, that, section 124 of the Insolvency Act provides for the procedure to be followed when approaching the court for an order of corporate rescue. Section 124(1) of the Insolvency Act [Chapter 6:07] provides that:

“124 Court order to commence corporate rescue proceedings

(1) Unless a company has adopted a resolution contemplated in section 122, an affected person may apply to a court, at any time, for an order placing the company under supervision and commencing corporate rescue proceedings.”

The statute is specific in relation to the appropriate applicant who is entitled to make an application for corporate rescue.

The statute is specific so as to curb the abuse of the process by parties who may not have a substantial interest in the rehabilitation of a company as well as parties who may only be interested in their personal financial gain and not the rehabilitation of the company.

In terms of the Insolvency Act, there is no ambiguity as to whom an affected person is.

It is either a shareholder, a creditor of the company, a registered trade union representing the employees of the company, or the employees of the company who are not represented by a registered trade union.

An applicant for corporate rescue is therefore confined to such persons.

In casu, the second respondent (Associated Mine Workers Union of Zimbabwe) cannot be held to be an affected person in terms of the Insolvency Act. It was never alleged by the second respondent that it was a shareholder. Therefore, it cannot qualify in terms of the first criterion set out in section 121(1)(a)(i) of the Insolvency Act.

Instead, the second respondent (Associated Mine Workers Union of Zimbabwe) alleged that it was a creditor because it was in possession of a judgment against the first appellant (Metallon Gold Zimbabwe (Pvt) Ltd).

It is apparent from the record that the judgement which the second respondent relied on is a judgment, not against the first appellant, but another company identified as Metallon Gold, that is based in the United Kingdom. The judgement does not establish that the second respondent was a creditor of any of the appellants.

In the absence of any other evidence to prove that indeed the second respondent was a creditor of any of the appellants, the Court cannot possibly clothe the second respondent with creditor status.

The second respondent further alleged, that, it qualified as an affected person in terms of section 121(1)(a)(ii) of the Insolvency Act, in that it was a registered trade union in the mining industry.

The Insolvency Act does not provide for a registered trade union in the industry but specifically provides for a “registered trade union representing the employees of the company.”

Lastly, the second respondent does not qualify as an employee of the company in terms of section 121(1)(a)(iii) of the Insolvency Act.

As such, the second respondent does not meet the requirements of an affected person, and, therefore, had no locus standi to institute corporate rescue proceedings against the appellants.

There is no reason to deviate from the definition of “affected person” prescribed by the Insolvency Act.

The respondents failed to comply with the provisions of section 124(2) of the Insolvency Act, which made their application a nullity as they failed to comply with peremptory provisions of the statute.

Section 124(2) of the Insolvency Act [Chapter 6:07] provides that:

“(2) An applicant in terms of subsection (1) must —

(a) Serve a copy of the application on the company, the Master, and the Registrar of Companies; and

(b) Notify each affected person of the application by standard notice.”

Section 2 of the Insolvency Act provides that:

“'standard notice' means notice by registered mail, fax, e-mail or personal delivery.”

This provision shows, that, the court a quo misdirected itself when it found that neither the manner of notification nor the form or content of “standard notice” was defined in the Insolvency Act.

The court a quo went on to express the view, that, there was a lacuna in the law that needed to be addressed by the Legislature as it created confusion in the procedure.

The court a quo failed to appreciate the statutory definition of standard notice as set out in section 2 of the Insolvency Act [Chapter 6:07].

It is clear that standard notice can only be effected through registered mail, fax, email or personal delivery. Nowhere in the Insolvency Act is there a provision for standard notice to be by way of publication in a newspaper.

Such notice was a nullity which vitiated the entire proceedings.

Service by way of standard notice is a peremptory requirement as the Insolvency Act uses the word “must”. Deviation from peremptory requirements of the Insolvency Act render an application fatally defective.

It is imperative to conduct corporate rescue proceedings with the utmost diligence and care as they have far-reaching consequences, not only on the creditors, shareholders, and employees of a corporation but the society at large.

Corporate rescue is predicated on a broader social justice perspective unlike the old law of judicial management that was based on private corporate interest. Consequently, it is critical that the procedures laid down for corporate rescue be complied with to the letter.

In Top Trailers (Pty) Ltd and Anor v Kotze [2017] ZAGPPHC 1268 the court expressed the following sentiments in respect of notification of affected persons:

“How Kotze should have become aware of the business rescue proceedings is not explained by the applicants.

The applicants have the obligation to notify all affected persons of the resolution but have not done so and have not proffered any explanation for their breach. They are now approbating and reprobating, demanding that Kotze should perform miracles. The applicants themselves had not complied with the law, but are using the same legislation that they disregarded to achieve a perverted outcome. The Court will not allow itself to be a party to an illegality…,.

The main argument relied on by Kotze, at the proceedings before Justice Khumalo, was that the resolution placing Top Trailers under business rescue was a nullity because of the company's non-compliance with section 129(3) of the Companies Act.

From a reading of the affidavit filed by Kotze at the hearing before Justice Khumalo, it is clear that Kotze was attacking the resolution adopted by the Board of Directors. The attack was to the effect, that, because he, as an affected person, was not notified of the resolution, as provided for in section 129 of the Companies Act, the resolution stood to be set aside.

I cannot disagree with his reasoning on this score….,.

I find that Kotze, as an affected person, a creditor of the company, should have been notified of the resolution placing Top Trailers under business rescue but he was not notified. The fact that Kotze was not notified clearly infringes on his rights as an affected person and creditor of the company.”

It is apparent, that, the failure to notify affected persons is not only a breach of peremptory provisions, but it also prejudices affected persons who have a substantial and legitimate interest in the fate of the company as they are not afforded an opportunity to respond to the application.

Ultimately, the outcome of the application may prove to be adverse to them.

The effect of non-compliance by an applicant for corporate rescue with the provisions of the Insolvency Act, relating to notifying affected persons by standard notice, renders the application a nullity.

DISPOSITION

In the result, it is ordered as follows -

1. The appeal is allowed with costs.

2. The order of the court a quo is set aside and substituted with the following –

“The applications for corporate rescue under HC2619/19 and HC2696/19 be and are hereby dismissed with costs.”

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD
Ruled By: TAKUVA J

The applicant applied for an order placing the respondent under provisional liquidation in terms of sections 207, 206(f)(g) as read with section 205(c) of the Companies Act [Chapter 24:03].

This Court, per MAKONESE J, on 18 September 2014, issued the following provisional order:

“1. The respondent, Aquirium Trading (Pvt) Ltd is provisionally wound up, pending the grant of an order in terms of paragraph 3 or the discharge of this order.

2. Subject to subsection (1) of section 274 of the Companies Act [Chapter 24:02], Mr Knowledge Hofisi of Aurifin Capital (Pvt) Ltd is appointed as provisional liquidator of the respondent company with the powers set out in section 221(2)(a) to (g) of the Act.

3. Any interested party may appear before the court, sitting at Bulawayo on 11th December 2014, to show cause why a final order should not be made placing respondent company in liquidation and ordering that the costs of these proceedings shall be costs of liquidation.

4. This order shall be published once in the Zimbabwe Government Gazette and once in the Herald newspaper. Publication shall be in the short form annexed to this order.

5. Any person intending to oppose or support the application on the return day of this order shall -

(a) Give due notice to the applicant at care of its legal practitioners, Messrs G. N. Mlotshwa & Company c/o Majoko and Majoko Legal Practitioners, 1st Floor, Triumphant House, 111a Josiah Tongogara Street, between 11th and 12th Avenue Bulawayo.

(b) Serve on the applicant a copy of an affidavit which he files with the Registrar of the High Court.”

The respondent filed a notice of opposition on 18 October 2014. It also filed its heads of argument on 28 November 2014 and its legal representative appeared in court on 11 December 2014 and opposed the confirmation of the provisional order....,.

The respondent's opposition is based on a number of grounds. Perhaps, it would be instructive to state the brief background facts before I consider the respondent's grounds for opposing the matter.

The respondent company was incorporated in 2004 by one Taleb Mohamad and Sandra Van Rooyen, to, among other things, pursue mining interests in the Midlands Province.

Sometime in 2012, the applicant company, Tamira Overseas SA, sought to invest in Acquirium Trading (Pvt) Ltd. In pursuant of that quest, various tentative agreements were entered into subject to the fulfillment of certain conditions.

On or about the 28th of August 2014, the applicant filed for the respondent's liquidation alleging that the respondent was heavily indebted to the applicant. On 18 September 2014, the applicant obtained the order referred to earlier in this judgment.

Let me come back to the notice of opposition and the grounds thereof. They are as follows:

1. The order for provisional liquidation was improperly prayed for and granted and must be set aside. The respondent submitted, that, it was not served in terms of the Rules before this provisional order was granted.

2. That, Messrs G.N. Mlotshwa and Company Legal Practitioners are conflicted out in this matter.

3. That, the application has not been properly brought before the court.

4. That, on the facts, the respondent company should not be placed under liquidation as there are no proper grounds for the placement of the respondent company under liquidation.

5. That, at the very least, the respondent should be placed under judicial management.

In respect of the first ground, it was submitted, on the respondent's behalf, that, before the provisional order was granted, the application for the provisional order was not served on the respondent at its registered address. The application was purportedly served on Heena Joshi who is not a director of respondent.

The notice of set down was not served on anyone.

Further, there was no affidavit of service filed with the court before the order was obtained.

The respondent also contended, that, the manner in which the applicant proceeded under the circumstances is in breach of section 5(2) of the Companies (Winding Up) Rules 1972 which provides;

“Except where the petition is presented by the company itself, a copy of the petition and the notice of set down for hearing shall be served upon the company by delivering of such copy at its registered office or to a responsible person at its place of business, failing such service, to a director or secretary of the company, or, if the company is in voluntary liquidation, to the liquidator. An affidavit of service shall be filed with the petition.”

Reliance was placed on the principle set out in African Gold (Zimbabwe) (Pvt) Ltd v Modest (Pvt) Ltd 1999 (2) ZLR 61 (SC)…, where the court observed as follows:

“A respondent company must not be deprived of the opportunity to put forward its opposition to the grant of an order which will have the effect of causing it to suffer an immediate diminution in personal status and a removal of control over all its assets.

The manifestly serious consequences flow from the issue of a provisional winding up order.

The provisional liquidator is almost invariably vested by the court with the wide powers set out in paragraphs (a) to (h) of section 221(2) of the Companies Act [Chapter 24:03]: see the remarks of HOFMEYER J in Mackay v Cahi 1962 (4) SA 193 (O) at 203G-H, which, though referring to sequestration proceedings, are nonetheless apposite and Walsh v Kugar 1965 (2) SA 756 (E) at 760B.

A fortiori, so it seems to me, the present appellant, being the victim of an inexcusable breach of procedure, the High Court ought to have afforded it the opportunity to oppose the application for the provisional order by the only means available, namely, by setting aside of the order that had been improperly obtained.”…,.

See also Reserve Bank of Zimbabwe v Trust Bank Corporation Ltd HC1070/13.

For this reason, the respondent prayed for the discharge of the provisional order with costs without even considering any other issues.

As pointed out above, the applicant did not file any heads of argument despite having been served with the respondent's heads.

Also, the applicant's principal legal practitioners did not attend and no explanation for their absence was proffered.

Counsel for the applicant submitted, that, he was a mere corresponding legal practitioner who was not versed with the facts of the matter. He indicated that he would stand by the papers filed of record.

There is no proof of service of the application for a provisional order in the record.

Consequently, the only inference is that it was granted on an ex parte basis.

This is irregular and I would discharge the provisional order for this reason.

Had the respondent not prayed for an order that the respondent be placed under judicial management the matter would have ended here.

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

This is an appeal against the judgment of the Labour Court dismissing an application by the appellant to file supplementary heads of argument and setting aside the decision of the appellant to terminate the respondent's contract of employment with itself.

The facts of this case are largely common cause and are these:

The respondent was employed by the appellant as a Medical Officer in 1995. He rose through the ranks to become the Health Services Manager.

In terms of his letter of appointment, the appellant's policies and procedures were incorporated into his employment contract.

On a date that is unclear on the papers, but between February and March 2009, the respondent was involved in a serious road accident whilst about the appellant's business.

The respondent suffered serious injuries to his spine as a result of which he was unable to attend to his official duties from 11 March 2009.

The respondent was allowed to go on sick leave on full pay for a period of ninety (90) days.

At the expiration of that period, the respondent was still unable to resume his duties and took more sick leave.

On 7 September 2009, the appellant's Services Director, a Mr Zvaipa, wrote to the respondent directing him to furnish a copy of his doctor's opinion, failure of which his remuneration and other benefits were to be suspended.

Following further correspondence exchanged between the two, the respondent made it clear, that, he remained in the employ of the appellant until such time as his contract was lawfully terminated.

On 18 September 2009, the appellant then wrote to the respondent advising that since he had exceeded the maximum sick leave permissible in a single year, his contract of employment was being terminated forthwith in terms of section 14(4) of the Labour Act [Chapter 28:01] (“the Act”).

Following this development, the respondent then filed an application for review with the Labour Court on 9 October 2009.

In the application, the respondent alleged, that, the termination was unlawful as the appellant had not followed the procedural steps required at law or in terms of his contract of employment in terminating his employment on medical grounds.

It appears, that, on the same date, the respondent filed what purported to be a notice of appeal against the decision to dismiss him.

It is apparent, however, that, in both cases, the respondent sought an order setting aside the decision to terminate his contract of employment.

The Labour Court treated the matter as an application for review.

After hearing submissions from both parties, the court then reserved its judgment on 15 March 2010.

On 15 November 2010, eight (8) months later, the appellant then filed an application for leave to file supplementary heads of argument. The supplementary heads of argument sought to raise the issue whether or not the Labour Court had jurisdiction to entertain an application for review in the first instance.

The application was opposed by way of a letter to the Registrar. No formal opposing papers were filed.

The Labour Court dealt with the request as part of its judgment.

The court was of the view, that, there should be finality in litigation and that to allow a party to file heads of argument after judgment had been reserved would defeat this principle.

The Court therefore dismissed the application to file supplementary heads of argument.

The court further reached the conclusion, that, an employer does not have the authority to summarily terminate an employee's contract of employment in terms of section 14(4) of the Labour Act [Chapter 28:01], and that, regard being had to the purpose of the Act, namely, the promotion of fair labour standards, the employer was under obligation to conform to the requirements of substantive and procedural fairness and that failure to give notice to an employee of an intention to terminate a contract of employment in terms of section 14(4) of the Act is fatally irregular.

The court further found, that, since the respondent's contract of employment embodied other terms applicable in the event of sickness, the appellant should have fully related to those terms and given the respondent the option either of early retirement or being medicallly boarded.

The court concluded, that, as this had not been done, there had been procedural irregularities, and, consequently, set aside the decision to terminate the contract of employment of the respondent.

It is against that order that the appellant has appealed to this Court.

Both parties to this appeal are agreed that the appeal raises three (3) issues for determination. These are:

(a) Whether or not the Labour Court had jurisdiction to entertain the respondent's application for review at first instance.

(b) Whether the Labour Court erred, as a matter of law, in declining to consider the issue of jurisdiction raised in the application to allow the filing of supplementary heads of argument.

(c) Whether the Labour Court was correct, in holding, as it did, that the right to termination in terms of section 14(4) of the Labour Act was subject to procedure and that any irregularity in those procedures entitled the Labour Court to set aside the termination of the contract of employment.

In particular, whether the appellant was obliged to give the respondent the right to be heard before his contract was terminated, and, secondly, whether the appellant was obliged, in terms of the contract of employment between the respondent and itself, to comply with medical boarding procedures or the availing of an option of early retirement before the contract of employment could be terminated....,.

WHETHER THE RIGHT TO TERMINATE IN TERMS OF SECTION 14(4) OF THE LABOUR ACT WAS SUBJECT TO PROCEDURES

Two issues arise in this regard. These are:

(i) Firstly, whether a termination in terms of section 14(4) of the Labour Act is subject to substantive and procedural fairness; and

(ii) Secondly, whether, on the facts of this case, the appellant complied with the provisions of section 14(1) of the Labour Act, and, if so, whether its invocation of the provisions of section 14(4) of the Labour Act was, in the circumstances, proper.

Section 14 of the Labour Act provides:

“14 Sick Leave

(1) Unless more favourable conditions have been provided for in any employment contract or in any enactment, sick leave shall be granted in terms of this section to an employee who is prevented from attending his duties because he is ill or injured or undergoes medical treatment which was not occasioned by his failure to take reasonable precautions.

(2) During any one-year period of service of an employee, an employer, shall, at the request of the employee, supported by a certificate signed by a registered medical practitioner, grant up to ninety days sick leave on full pay.

(3) If, during any one year period of service of an employee, the employee has used up the maximum period of sick leave on full pay, an employer, shall, at the request of the employee, supported by a certificate signed by a registered medical practitioner, grant a further period of up to ninety days sick leave on half pay, where, in the opinion of the registered medical practitioner signing the certificate, it is probable that the employee will be able to resume duty after such further period of sick leave.

(4) If, during any one-year period of service, the period or aggregate periods of sick leave exceed –

(a) Ninety days sick leave on full pay; or

(b) Subject to subsection (3), one hundred and eighty days sick leave on full and half pay: the employer may terminate the employment of the employee concerned.

(5) An employee who so wishes may be granted accrued vacation leave instead of sick leave on half pay or without pay.”

It is the appellant's contention, that, section 14(4) of the Labour Act gives the employer an absolute right to elect to terminate the employment of the employee if -

(a) The employee has taken more than ninety (90) days sick leave on full pay in any one year; or

(b) The employee has taken more than one hundred and eighty (180) days sick leave on full pay and half pay in any one year period.

The appellant further argues, that, the right to terminate is not subject to compliance with any particular procedures.

The respondent, on the other hand, argues, that, section 14(4) of the Labour Act does not give an employer an unfettered right to unilaterally and summarily dismiss an employee and that fair labour standards and the audi alteram partem rule still apply in this situation.

In determining this issue, the court a quo relied on the case of Mutukwa v National Diary Co-operative Ltd 1996 (1) ZLR (1) ZLR 348 which held, inter alia, that an employer was entitled to terminate the contract of employment on notice to the employee.

The court was of the view that this principle was applicable to this case.

The reliance on the above case was clearly erroneous.

I say so because section 14(b) of the then Labour Relations Act [Cap 28:01] provided, that, unless more favourable conditions were provided in the contract, where an employee was unable, for a period exceeding one month, to fulfil the conditions of his employment, the employer was entitled to terminate the contract on due notice, in which event the employee was to be entitled to all benefits due to him up to the date of such termination.

The requirement to give notice was in terms of section 14(b) of the then Labour Relations Act [Cap 28:01] and was mandatory.

It is common cause, that, section 14(b) of the then Labour Relations Act [Cap 28:01] was repealed by Act 17/2002 which substituted the section currently in existence and which is the subject of this appeal.

The current provision makes no provision for the giving of notice.

Considering the circumstances as a whole, I would agree with counsel for the appellant, that, there was a clear legislative shift and change of policy regarding the termination of employment on the grounds of excessive sick leave.

Section 14(4) of the Labour Act has no express conditions attached to it except the requirement as to the amount of sick leave which an employee can take in any one year before the right to terminate can be exercised by an employer.

However, since the decision to terminate an employment contract has far reaching consequences, one should assume, that, before such a decision is taken, the employer would be obliged, at the very least, to advise the employee of the fact that he has taken the sick leave contemplated in section 14(4) of the Labour Act, and that, for that reason, it is intended to terminate his contract of employment in terms of that section on a date specified in such notice unless the employee returns to work before the expiration of the specified period.

In my view, it would not be proper for an employer to invoke the provisions of section 14(4) of the Labour Act, and, without notice to the employee, proceed to terminate his contract of employment.

In short, the audi alteram principle would still need to be respected, and, failure to do so would render any such termination null and void.

In the present case, however, it is apparent, that, there was correspondence between the appellant and the respondent in which the appellant made it clear that it would invoke the provisions of section 14(4) of the Labour Act.

The respondent challenged the appellant's right to terminate his employment in terms of section 14(4) of the Labour Act. The appellant then terminated the employment with effect from 18 September 2009.

I turn to deal with section 14(1) of the Labour Act.

In an ordinary employment contract, the termination of employment effected on 18 September 2009 would have been the end of the matter.

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....,.

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.”...,.

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....,.

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.

HB37-15 : LAWRENCE CLEMINSON vs BRIAN SHER and RUEBEN POSWELL (as executor in the Estate Late Sally Lieber also known as Sally Zella Lieber)
Ruled By: MUTEMA J

Order 7 Rule 50 of the High Court Rules 1971 provides that a defendant who has failed to enter appearance shall be deemed to be barred.

In case number HC1508/14 the respondents issued summons against the applicant on 2 July 2014 claiming arrear rentals and eviction as a result of breach of a lease agreement entered into by the parties.

The summons was served at the applicant's domicilium citandi et executandi, Number 5 Luton Street, Belmont, Bulawayo on 4 July 2014 by affixing it thereat on the door after unsuccessful diligent search.

The dies induciae expired on 18 July 2014.

On 17 July 2014, the respondents legal practitioners, out of courtesy, e-mailed the summons to the applicant and also alerted the applicant that they had served the summons at his domicilium citandi on 4 July 2014.

The applicant did not enter appearance to defend.

On 31 July 2014, the applicant filed a chamber application for the upliftment of the automatic bar.

The respondents opposed that application hence this opposed application.

Now, in an application by a defendant for the removal of a bar from entering appearance, that litigant should set out, briefly, his/her defence and the facts upon which he/she relies for that defence so that the court can form some opinion of its merits.

He or she must also set out, briefly, some facts which the court can scrutinize to gain some idea whether the defence is bona fide: see Broadley N.O. v Stevenson 1973 (1) SA 585 (R) and the cases cited therein.

This is the legal position pertaining to an application of this nature....,.

Regarding the merits, the applicant, in paragraph 8 of his founding affidavit gives this explanation:

“8. Further, there are prospects of success on the merits. The amount being claimed by the respondent is disputed as there was an agreement between the parties for the reduction of the rentals. For the months of February and March the rent was reduced from the original US$2,500 to US$1,250, but, surprisingly, in their claim, the respondents are still claiming US$2,500 for the above mentioned months.”

There are no facts which the applicant has set out upon which he relies for the alleged defence to enable the court to form some opinion of its merits or bona fides as is required by the law.

Clause 26 of the lease agreement provides, in clear and unambiguous language, what should happen in the event of any variations to the lease agreement in these words:

“26. Whole Agreement

This agreement constitutes the whole agreement between the parties and no variations, alterations, or collateral agreements shall be of any force or effect unless and until recorded in writing in a document signed by the parties.”

Such a document, satisfying the requirements stipulated in clause 26 above, was not produced, neither was there even the slightest allusion to its existence save the applicant's mere allegation that there was an agreement pertaining to a reduction of rentals for February and March.

So, where are the prospects of success vaunted by the applicant in paragraph 8 of his founding affidavit?

Clearly, the applicant has no defence no matter how reluctant the court may be to reach a decision that would result in giving leeway to a judgment against a person without him being heard in spite of his protestations that he has a valid defence.

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.

The facts relevant to the resolution of the dispute between the parties are briefly these:

The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent paid a deposit of $12,000 and took possession of the vehicle. He, however, failed to pay the balance of $12,175.

The applicant then sued for the balance under case number HC2869/13 and obtained default judgment.

As a follow up to the default judgment, a writ of execution was issued which resulted in the vehicle in question being attached by the Deputy Sheriff.

The respondent filed an application for rescission of the default judgement under case number HC548/14.

The applicant's legal practitioners drew up papers to oppose the application, but, before they filed them, the parties reached a settlement which culminated in the signing of an agreement annexure “D” to applicant's founding affidavit. It was drafted in these words:

“MEMORANDUM OF AGREEMENT

It be and is hereby recorded that following a meeting between:

Plaintiff and her legal practitioner Mr G. Nyoni

Defendant and his legal practitioner Mr S.S. Mazibisa

It was agreed without force; duress and undue influence and the parties conscious of what they were doing, that:

1.The execution of Defendant's property be stayed only and strictly on the following conditions:

(a) That, he pays US$5,000 on 15 April 2014 and US$5,175 on the 6th of May 2014.

(b) That, he pays US$578 paid by Plaintiff to Sheriff of Zimbabwe; Sheriff's further costs and commission; interest of US$250 and costs as will be taxed, all by the 27th of May 2014.

2. The BMW X5 registration number ACX 0734 shall be removed by plaintiff from the Sheriff of Zimbabwe, at Defendant's expense (i.e. storage charges) and kept at Plaintiff's place or other safe place until the defendant has fully paid all monies detailed in paragraph (1) above.

3. Should the Defendant fail to make any one of the payments mentioned in (1) above, the plaintiff shall, without notice to the Defendant, take the vehicle to a car dealer (sellers of second hand vehicles) for the car to be sold by private treat at such reasonable price as will be determined thereat.

4. This memorandum shall stand as Defendant's mandate to the Plaintiff and the said car dealer to sell and transfer the car to the would-be purchaser.

DATED at BULAWAYO on this the 26 day of MARCH 2014.”

It was signed by both parties and their respective legal practitioners.

As a result of the agreement, the application and opposition for rescission under case number HC548/14 could not be pursued.

The respondent failed to meet the payments stipulated in the agreement of 26 March 2014 and the vehicle was taken to a dealer, but, the highest offer received was US9,000. There followed a series of correspondence between the parties legal practitioners concerning the value of the vehicle and whether the respondent should pay the applicant's costs.

On 3 September 2014, the current legal practitioners of the respondent wrote to the applicant's legal practitioners as follows:

“RE: M. NCUBE vs SIPIWO NKOMO

The above matter refers and to our previous conversation.

Kindly note, that, I am preparing a payment plan which is to commence at the end of September 2014 inclusive of clearing the balance if that option is still possible then.

In the meantime, may I please have photocopies of all the filed pleadings since Messrs Cheda and Partners seem to have lost the whole file in their moving offices. I have tried to photocopy directly from the High Court, but, at a dollar per page, it was too stiff, hence the favour that I now seek.”

The respondent was obliged with the documents he requested, which papers he then used to pursue his application for rescission of judgment in case number HC548/14 which had been laid in abeyance by the memorandum of agreement alluded to above - without alerting the applicant.

On 23 October 2014, the respondent obtained a default judgment, with costs, rescinding the judgment the applicant had obtained in HC2869/13.

The applicant says she was shocked to receive a letter, on 19 November 2014, written to her legal practitioners by the respondent's current legal practitioners to this effect:

“RE: MLWELIWENKULULEKO NCUBE vs SIPIWO NKOMO HC548/14 X REF HC2869/13

The above matter refers and to the attached court order.

Be advised that we have since obtained a rescission of judgment of the order which was in favour of your client. Mr Ncube had clearly wanted this matter to rest and had resigned himself to losing both the BMW X5 and the money, a sum of US$12,000, plus other monies that he had paid to the sheriff.

What he then found unfair was the fact that your client wanted to further make him pay a sum in excess of US$2,000 as legal costs when she had both the car and the money. Clearly, that was for all to see, a gross injustice.

In light of the rescission of judgment may the status quo before the judgment be restored, and the matter proceed through normal trial route and Mr Ncube pays the balance which was owing. Failing which, may your client make arrangements to refund the money paid to her by Mr Ncube, by the 1st of December, 2014.

As yours took back possession of the vehicle, which she is using, as we are told by Mr Ncube that he has seen her use the motor vehicle, there is therefore no legal basis for her not to return the money since she had taken back the motor vehicle and enjoys its use.”

That letter elicited a response from the applicant's legal practitioners in this vein:

“We refer to the above matter and to your 19 November 2014 letter. We are, we should confess, shocked by your stance which borders on lack of candour and dishonesty. There is a memorandum of agreement that you signed. Did you disclose it to the court? We are interested in this because we saw the papers in court and the agreement was not part thereof. Can we hear from you urgently as we are determined to take this back to court and to show the court that it was, in our view, at least, misled.”

This letter provoked no response from the respondent hence the current application.

At the hearing of the application, counsel for the respondent attempted, in vain, to introduce cases not cited in the respondent's heads of argument on the basis that he was only briefed by Ndove, Museta and Partners the day before.

I disallowed it in terms of Rule 238(2c) because Ndove, Museta and Partners had been served with the notice of set down on 12 February 2015 but briefed counsel on the eleventh hour. No explanation for that was forthcoming.

As if that was not enough, counsel for the respondent went on to smuggle into the hearing new issues that appear not anywhere in the papers in an endeavour to persuade the court to dismiss the application.

I will proceed to deal with those technical issues that he raised first before adverting to those raised in the opposing affidavit and the heads of argument....,.

In his heads of argument, the respondent raised three issues in opposing the grant of this application. I herewith deal with them hereunder:...,.

(b) That respondent did not withhold information from the court when he obtained rescission of the default judgment

The argument by the respondent here is that he did not conceal the existence of the agreement when he applied for and was granted the default judgment in HC548/14 because that agreement had been “filed with the Registrar and became part of the record in the main matter which was cross-referenced to in the application for rescission.”

The paucity and fallacy of this argument is too glaring to escape censure.

Firstly, the respondent does not say who had filed it and in which case number of the three cross-referenced cases.

What he refers to as the main matter can only be HC2869/13 wherein the applicant is the owner of the litigation and she could not have filed it therein when the agreement had not yet been concluded.

In any event, it was the respondent's duty to bring the existence of that agreement to the court's attention in HC548/14 by either attaching a copy, or, if, as he alleges, a copy had already been filed in one of cross-referenced cases, to lead the court to the particular cross-referenced case.

Surely, the respondent cannot expect the Honourable Judge to peruse all cross-referenced files for a document not alluded to in the current matter, especially in Bulawayo High Court matters, where, for some very amiss and inexplicable reason, except to push volumes by legal practitioners in order to maximize on fees, those cross-references are a volume of files in almost all matters civil.

Further, the argument that the respondent concealed the existence of the agreement in question from the court is corroborated by his prior sly conduct evinced in annexure “E” to the applicant's founding affidavit, namely, the letter of 3 September 2014, quoted above, wherein he fooled the applicant by alluring her into believing that he would pay what was due with effect from end of that month, and, if he could be obliged with copies of the filed pleadings to replace his which had been lost.

He deliberately hoodwinked the applicant because he very well knew that the purpose for which he required those copies was to go behind the applicant's back and resume the application for rescission which had already been settled via the agreement which he had breached by failure to pay.

This indeed is dishonest and unethical conduct, by a litigant who is a legal practitioner and an officer of court, of the highest order.

No wonder the applicant expressed shock and disbelief after receiving the respondent's legal practitioners letter of 19 November 2014, gleefully waving a copy of the default judgment surreptitiously obtained on 23 October 2014.

I am convinced, that, had the existence of the agreement been brought to the attention of KAMOCHA J in HC548/14 and also the respondent's letter of 3 September 2014, the Honourable Judge would certainly not have granted that default judgment, or, at the very least, he would have directed the respondent to give the applicant notice that he was going back to court to resume his application for rescission of judgement.

From the foregoing findings, it is apparent, that, the applicant has shown good cause for the granting of rescission of the default judgment in case number HC548/14.

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based of an unlawful order which was granted based on fraud and due to the first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus, the final decision of this Honourable court, under case number 141/15, will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud, as, clearly, the court record does not point at that.

The only issues that perhaps the applicants could contend were done unprocedurally would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“Where, in an application for a provisional order, the judge is satisfied, that, the papers establish a prima facie case, he shall grant a provisional order either in terms of the draft or as varied.”

The harm stated in the certificate of urgency, in my view, is not founded for the simple reason, that, the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing the respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view, that, the confirmation or otherwise of the order did not bring anything new in so far as the applicants fears as stated in the certificate of urgency are concerned.

If the respondent had effective control of the mine since 20 November, then, they should have been mining there since then.

Even if the terms of the final order, which the applicants allege were fraudulently gotten, were to be suspended, the interim relief, which was seemingly obtained above board, would still be operational.

The applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear, from the applicants papers, that, they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This, in my view, is not desirable.

This court cannot issue a provisional order denying the applicants interference with a mine, and later issue a counter-provisional order now allowing the applicants interference and denying the respondent same.

In my view, if the applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but, they cannot seek another provisional order that renders ineffective the relief that the respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to the respondents, and a second one now taking away those rights from the respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which the applicants have correctly launched.

The application has to fail for this reason.

HB59-15 : NOMUSA NCUBE (as Executrix Dative of Estate Late Alice Nkala) vs GOODWILL NKALA
Ruled By: MOYO J

Summary judgement is a drastic remedy as it negates a fundamental principle in the administration of justice, the audi alteram partem rule: refer to the case of Shingadia v Shingadia 1966 RLR 285....,.In Hughes v Lotleit 1985 (2) ZLR 179, it was held, that, summary judgment will only be granted ...

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

The applicants, together with the third and fourth respondents, were respondents before this Court under cases number CCZ57/2018 and CCZ58/2018 respectively.Their participation in those proceedings was not and could not have been doubted or challenged as they had been called upon to defend the allegation, that, the second applicant had ...

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

BackgroundThe applicant is a duly elected Member of Parliament for the Norton Constituency. On 24 June 2020, during an ordinary sitting of the National Assembly over which the Speaker of Parliament was presiding, he was removed from Parliament and suspended for six consecutive sittings for allegedly behaving in a violent ...

Background

The applicant is a duly elected Member of Parliament for the Norton Constituency. On 24 June 2020, during an ordinary sitting of the National Assembly over which the Speaker of Parliament was presiding, he was removed from Parliament and suspended for six consecutive sittings for allegedly behaving in a violent and grossly disorderly manner.

The expulsion and suspension were ordered by the Speaker of Parliament (“the Speaker”).

Aggrieved by the expulsion and suspension, the applicant filed this application on 20 July 2020. The application, brought specifically in terms of section 167(2(d) of the Constitution, alleged that the respondent had failed to fulfil a constitutional obligation to ensure compliance with its Standing Orders.

In particular, the applicant sought to demonstrate how the expulsion was inconsistent with the procedures and the powers granted to the Speaker by the Standing Orders and in terms of which the Speaker purportedly acted.

The applicant further denied having been disorderly as alleged or at all. He also challenged the propriety and validity of the punishment that was meted out to him on the basis that he was not afforded the right to be heard before he was punished.

The application was opposed with the respondent's opposing affidavit being deposed to by the Speaker.

In addition to opposing the matter on the merits, the respondent raised five preliminary points.

Not necessarily in the same order in which the points were raised in the opposing affidavit, the respondent;

(i) Challenged the jurisdiction of this Court;

(ii) The validity of the application itself, by alleging that it was fatally defective for want of compliance with the rules of the court; and

(iii) The efficacy of the relief sought which it alleged was moot since the applicant had already served the punishment by the time of the filing of the application.

(iv) The respondent also challenged the non-joinder of the Speaker which it alleged was fatal to the application; and

(v) Finally, it requested that this Court withholds its jurisdiction as the matter was pending before the High Court where similar relief had been sought under case no. HC3367/2020.

Regarding the merits of the application, the respondent contended, in the main, that, the applicant had indeed behaved in a disorderly manner and that the punishment meted out to him was appropriate and in accordance with the powers granted to the Speaker by the Standing Orders. The respondent specifically denied, that, the Speaker had exceeded his authority and powers as alleged in the application or at all....,.

As stated above, the respondent raised the issue of the jurisdiction of this Court as one of its preliminary points. This it however did in direct response to the allegation that the applicant had not been afforded the right to be heard before he was punished.

In response to this specific allegation, the respondent contended, that, the applicant ought to have approached the High Court on review, challenging the procedure leading to his punishment. It was thus the position of the respondent, erroneously held in my view, that, since the High Court also enjoyed review jurisdiction in the matter, the jurisdiction of this Court was not triggered.

Whilst nothing turns on this point, I wish to note, in passing, that, this Court enjoys concurrent jurisdiction with other courts in constitutional matters. The coincidence of jurisdiction with the other courts does not oust the jurisdiction of this court.

The position may be contrasted with instances where this court has been granted exclusive jurisdiction. In those instances, naturally, it is the jurisdiction of the other courts that is ousted even if the matter is, technically, a constitutional matter....,.

That the power granted to the courts by the new Constitution, to hold public officers accountable to the Constitution, marks a clear departure from the State power sharing arrangement provided for under the repealed Constitution, and the jurisprudence that emerged under that order is now commonplace.

Our constitutional order has evolved from one where the conduct of those wielding public power was predominantly immune to judicial review, insulated and shielded from such by the strict application of the doctrine of separation of powers, to one where the conduct of all public affairs must measure up to the constitutional imperatives under the watchful eye of the judiciary, which, in turn, is also obliged to always venerate the Constitution.

Commenting on the new constitutional order, PATEL JA, in Judicial Service Commission v Zibani & Others SC68-17 had this to say:

“It is axiomatic that Zimbabwe is a constitutional in contradistinction to a parliamentary democracy: see Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S) at 190A-B. This fundamental principle and its concomitant legal ramifications are codified in section 2 of the Constitution as follows:

(1) This Constitution is the supreme law of Zimbabwe, and, any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Adding a building block onto the now settled jurisprudence on the new Constitutional dispensation, HLATSHWAYO JCC, in Chironga and Another v Minister of Justice, Legal and Parliamentary Affairs and Others CC14-20 opens his judgment by noting that:

“One of the crucial elements of the new constitutional dispensation, ushered in by the 2013 Constitution, is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment No.20 Act 2013 (“the Constitution”) adopted the rule of law and the supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy. For this reason, public office bearers ignore their constitutional obligations at their own peril.”

The above remarks are ample evidence, if any is needed, that, the doctrines of constitutional supremacy and accountability, under the new Constitution, have been fully embraced by this Court and underpin the jurisprudence that is emerging therefrom.

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....,.

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.

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

The rules of natural justice require that whoever takes a decision should be impartial, having no personal interest in the outcome of the case and that a decision should not be taken until the person affected by it has had an opportunity to state his case.

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 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.

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

One of the crucial elements of the new constitutional dispension ushered in by the 2013 Constitution is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment (No.20) Act 2013 (“the Constitution”) adopted the rule of law and supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy.

For this reason, public office bearers ignore their constitutional obligations at their own peril. Left unchecked, those clothed with State authority, or public power, may quite often find the temptation to abuse such powers irresistible, as Lord Acton famously remarked:

“Power tends to corrupt, and absolute power corrupts absolutely!”

John Emerich Dalberg-Acton, 1st Baron Acton, coined the proverbial saying in 1857 using similar ideas expressed by several of his contemporaries. The fuller expression reads:

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you super-add the tendency of the certainty of corruption by authority.”

Mechanisms to oversee how public power and State authority is exercised by those so entrusted must be tightened and strengthened. More importantly, if such mechanisms are by command of the supreme law of the land, the Constitution, they must be put in place within a reasonable time to actualise the Constitution as a living document.

To this end, the State, its organs, and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law: see the case of Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)…,.

However, this case also illustrates the need, on the part of the litigants, to move away from old fashioned Private Law habits when it comes to Constitutional Law litigation. While constitutional litigation may entail the vindication of a private right, it differs from Private Law litigation in that over and above that it seeks to entrench legality and the deepening of the constitutional order for the benefit of the broader public.

This is why it has been said that:

“Where a matter concerns the constitutionality of a law…, the need for certainty may require the court to decide the matter irrespective of whether or not the party advancing the challenge had standing:” MAX du PLESSIS et al 'Constitutional Litigation' Juta, 2013 quoting the South African cases of Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC)…, and South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 (8) BCLR 901 (CC)…,.

This application seeks to enforce the enactment of the law envisioned in section 210 of the Constitution to provide for “an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

It also seeks a declarator that the respondents have breached the Constitution by failing to enact such a law timeously after the coming into operation of the new Constitution and a mandamus for the respondents to gazette the Bill envisioned in section 210 of the Constitution thereof within forty-five days.

At the time of hearing of the application, a period of two years and four, five months had lapsed from the time of coming into operation of the rest of the Constitution, on 22 August 2013, when the President-elect, under the Constitution, assumed office. That delay, of less than two and a half years, might not have been sufficient to satisfy a finding of violation of the Constitution and the application might have failed on that score, with a period of, say, three being deemed to be the sufficient one.

However, post-hearing, intimations or overtures that the matter might be settled by consent of the parties were made necessitating the holding of three Court-presided meetings of the parties over time on the basis that both sides were agreed that the envisaged legislation had to be enacted; and, indeed, both sides agreed that the application was essentially not opposed, but differed slightly on the appropriate timelines for the enactment of the law.

Herein lies the nub of this matter.

Had the constitutional legality principle been put above all else, the application could have been granted immediately with immense public benefit. However, the Private Law litigation habit of “winner takes all” of wanting the other side to be declared a violator of the Constitution stood in the way as did the attitude on the other side of not wanting to make any move unless so ordered.

Had the Court appreciated, then, how deeply entrenched these arcane positions were, relics of Private Law litigation habits, a different approach could have been adopted of immediately issuing the order, with reasons to follow.

It is regretted that this approach was not followed.

FACTUAL BACKGROUND

The applicants are citizens of Zimbabwe who have taken it upon themselves to see to it that the respondents adhere to the constitutionally-created obligations imposed on them by section 210 of the Constitution.

The applicants submit, that, the respondents have done nothing to fulfil their constitutional obligations clearly outlined in the supreme law.

Section 210 of the Constitution requires the enactment of a law to provide for an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.

The applicants aver, that, it has been over two years since the inception of the Constitution and the Act required, in terms of section 210 of the Constitution, has not been put in place.

It is further the applicant's contention, that, the failure by the respondents to enact the law, in terms of section 210 of the Constitution, is a breach of the Constitution. The right to equal protection of the law, under section 56(1) of the Constitution, is under threat, according to the applicants, due to failure or delay in enacting the law directed by section 210 of the Constitution.

The application is opposed.

The respondents submit, that, the law-making process cannot be carried out overnight. The respondents further submitted, that, they are working on making sure that the Act is in place and filed of record a working document they are allegedly focused on as a roadmap towards the eventual enactment of the law in question.

The timeline within which the Act envisaged by section 210 of the Constitution should be enacted sits at the heart of this application.

The applicants, in their final submission to this Court, are seeking the following relief:

1. The respondents failure, to enact the law provided for in terms of section 210 of the Constitution of Zimbabwe, is in breach of the Constitution of Zimbabwe.

2. The failure by the respondents, to enact the law to bring into effect section 210 of the Constitution of Zimbabwe, is a violation of the applicant's right to equal protection and benefit of the law as defined by section 56(1) of the Constitution.

3. The respondents must gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within 45 days from the date of this order.

4. The respondents, jointly and severally, each paying the other to be absolved pay costs of suit.

ISSUES

The first question this Court is seized with is whether or not the applicants have locus standi to bring this matter before this Court. This question shall be disposed of first before delving into questions arising from the merits of the application.

On the merits of the application, three questions arise and they are the following:

(1) Whether or not the respondent's delay in enacting the law, provided for in terms of section 210 of the Constitution of Zimbabwe, constitutes an unreasonable delay in fulfilling constitutional obligations in terms the Constitution of Zimbabwe.

(2) Whether or not the requirements for a mandamus have been satisfied to order the respondents to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty five days from the date of this order.

The aforementioned questions, on merit, will be disposed of separately hereunder after addressing preliminary and standing issues.

PRELIMINARY ISSUES

Before proceeding to deal with the merits, there are a number of preliminary issues that call for the Court's attention, although not raised by the parties, but being questions of law.

Their determination is paramount in clarifying what really is before this Court as opposed to what is purportedly so.

THE APPLICANTS FOUNDING AFFIDAVIT IS DEFECTIVE

The founding affidavit in this application is replete with anomalies which render it defective. It is deposed to by the first applicant. He is the one who, under oath, swears to and undertakes to depose to the founding statement forming the basis of the suit. Thereafter, the very same affidavit identifies the second applicant, by naming him, and states, that, the second applicant brings the application 'in his own right.'

It is pertinent to note, that, the second applicant does not, at any point, take the oath or undertake to depose to the founding affidavit.

Neither does he sign the affidavit which is signed by the first applicant.

It does not end there.

The founding affidavit of the first applicant then purports to tell the story of both the applicants.

This it does in the most unusual way. The first applicant appears to be the author of the first to fifth paragraphs of the founding affidavit. He refers to himself in the first person where he states thus: “I am the Applicant herein:” and refers to the second applicant in the second person were he states: “The Second Applicant is Rashid Stuart Mahiya.”

It is not clear at what stage the second applicant takes over the reins of authorship to the first applicant's founding affidavit, but, it appears to be possibly at about the sixth paragraph of the founding affidavit. At paragraph 6.2, the first applicant is referred to in the second person where it says:

“In my line of work, I have witnessed the agonies of the violence perpetrated against our citizens in unmitigated proportions, in particular, the first applicant, by the State and its agents.”

It appears from the above remarks, that, it is the second applicant who now puts forth his own story through the first applicant's founding affidavit.

From the above, it is clear, that, apart from being mentioned by the first applicant, there is no affidavit before the court that can be attributed to the second applicant.

Therefore, the founding affidavit before the court is that of the first applicant.

The second applicant, in a strange and unusual manner 'infuses' his own averments in an affidavit sworn to and signed by the first applicant.

Thus, effectively, there is no affidavit placed before this Court by the second applicant.

The founding affidavit also only identifies two respondents, the first and second respondents. The third and fourth respondents are not identified as respondents save for their citation on the face of the application.

Further to that, at paragraph 8.1 of the founding affidavit, the authorship appears to have reverted back to the first applicant were it is stated that:

“The Applicant and I are ordinary citizens of Zimbabwe and Human rights activists.”

Such back and forth approach is unacceptable. It leaves the facts muddled, not being clear which averments are to be attributed to which applicant. Such breadth-taking bundling is unacceptable, embarrassing, and an unworthy handiwork of one who is a senior legal practitioner.

Further to that, and more seriously, the applicant's affidavit also makes serious allegations against persons who are not cited as parties to the application. Neither were they served with the application to enable them to answer to the allegations made therein.

The founding affidavit, at paragraphs 8.4 to 8.12 (inclusive) alleges that certain individuals believed to be members of the security sector terrorised the first applicant and his family. It alleges vicious assaults and intimidation which resulted in the death of some of the first applicant's family members.

It is now well established at law, that, in the face of such serious allegations, the persons whose conduct is impugned ought be cited and afforded a chance to put across their own case.

In view of the fact that this has not been done, the allegations should be struck out, and, paragraphs 8.4 to 8.12 (inclusive) are accordingly struck off the record....,.

1. Paragraphs 8.4 to 8.12, inclusive, of the applicant's founding affidavit are struck out as they make serious allegations against persons who were not made part of these proceedings through citation and service.

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

This was an opposed application. The original and main dispute was between the applicant and the third respondent. But, in this particular application, the applicant sought a remedy against the first and second respondents.

I guess the third respondent was cited merely as a nominal respondent being so much of an interested party.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 10:28]. She complained that, being administrative bodies and therefore entities governed by that Act, the first and second respondents had failed to adhere to the standards set out in section 3 of the of the Administrative Justice Act. Briefly, these are:

(i) The right of a person to receive adequate notice of the nature and purpose of any action proposed to be taken by an administrative body;

(ii) The right to a reasonable opportunity to make adequate representations; and

(iii) The right to adequate notice of any right of review or appeal where applicable.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

The details were these:

The applicant was quarrelling with the third respondent over a piece of sugar cane land on which they had been allocated by Government in terms of its land reform programme. The applicant had an offer letter dated 2004 over a piece of land that was plus or minus 50 hectares in extent. The third respondent also had an offer letter issued sometime in 2017 over a piece of land plus or minus 21 hectares in extent.

The applicant claimed the 21 hectares offered to the third respondent had been carved out of her own 50 hectares without due process.

She said, in September 2017, the third respondent, buoyed by that recent offer letter to him, had tried to force his way onto her land, yet, for thirteen years, she had been growing sugar cane undisturbed on the entire land - including the 21 hectares allegedly offered to the third respondent unprocedurally.

In September 2017, the applicant brought an urgent chamber application against the third respondent for an interdict to bar him from interfering with her farming operations on the disputed land.

I heard it. I never had to decide the matter. The parties agreed to an order by consent.

Essentially, the agreement was to have the matter referred to the first respondent for determination. The first respondent is the proper forum for such disputes. It is a constitutional body. In terms of section 297 of the Constitution, it is empowered to investigate and determine complaints and disputes regarding, among other things, the allocation of agricultural land.

On 14 September 2017, I issued an order by consent.

The operative part said the applicant would harvest the crop of cane on the disputed portion of the land, but, that, thereafter, all operations on it would cease pending the resolution of the dispute by the first respondent within thirty days.

The first respondent obliged.

In its notice of opposition to the present application, the first respondent said it had resolved the dispute in terms of the High Court order and in accordance with its Constitutional mandate.

It said on the appointed day, it had called the parties for a survey of the land boundaries. Using the advanced GPS facility (Global Positioning System), it had established, that, the 21 hectares allocated to the third respondent had been over and above, and quite separate from the 50 hectares allocated to the applicant. Her 50 hectares were intact. Of those, about 48 were arable. The respondent might have been farming the extra 21 hectares over the years but she had no lawful authority or any right over them.

It was this decision by the first respondent that sparked the present application.

The applicant said she was disgruntled by the decision. She claimed her representative had not been given an opportunity to make representations. She claimed the decision was unfair, unprocedural, illegal and irrational. In this regard she merely regurgitated the language of Secretary for Transport & Anor v Makwavarara 1991 (1) ZLR 18 (SC).

The applicant sought the following orders:

(i) That, the resolution made by the first respondent, on the dispute between the applicant and the third respondent, be set aside;

(ii) That, the offer of 21 hectares by the second respondent to the third respondent over the applicant's plot be cancelled;

(iii) That, the applicant should continue to tend to her sugar cane crop on the 21 hectares pending finalisation of the dispute;

(iv) That, the first and second respondents had to invite the applicant and the third respondent to submit representations in respect of the disputed land within thirty days of the court order; and

(v) That, the second respondent should make a determination into the matter giving written reasons within ninety days of the date of the court order.

The application was manifestly ill-conceived. I dismissed it soon after the presentation of oral submissions and gave my reasons ex tempore. That was on 2 February 2019.

The record was returned to the Registry.

Only in August 2019 did the Registry receive a letter from the applicant's lawyers wanting written reasons for my decision and claiming that a previous request had, by mistake, not been delivered. But, regrettably, I could not oblige soon enough. For much of the second term vacation, and the third term, I was indisposed.

That explains the delay in rendering this judgment.

The application was ill-conceived, because, apart from regurgitating the principles of review of an administrative decision, as set out by case law, there was little or nothing of the factual background upon which the application was based.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (GPS) survey.

The applicant was completely silent about this crucial fact, both in her founding and answering affidavits.

So, I find that the applicant was present when the Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

The first respondent said the results of the GPS survey showed that the applicant's 50 hectares were not interfered with and that the 21 hectares allocated to the third respondent were not carved out of her portion.

The applicant proffered no counter argument, let alone present any facts to rebut the survey findings. She was simply adamant that the 21 hectares allocated to the third respondent had been chopped off her own allocation.

That was ill-conceived.

Part of the applicant's argument was that the first respondent wrongly treated the dispute between herself and the third respondent as a dispute over boundaries, yet it was not, but was a dispute of land invasion by the third respondent over land lawfully allocated and utilised by herself.

But, the dispute was indeed a dispute over boundaries.

The order by consent, in September 2017, expressly recognised the dispute as one over boundaries. The very first line to the preamble to that order read:

“Whereas there is a dispute relating to boundaries and allocation of land on Farm 38, Hippo Valley Estates, Chiredzi as between and among the parties;”

There was no basis for the remedies sought in the draft order. The real dispute had been competently and properly resolved by the first respondent.

That the applicant had farmed on the disputed portion of the land for thirteen years did not preclude the second respondent from properly allocating it to deserving beneficiaries as the applicant had not acquired rights over it.

When the first respondent resolved the dispute, it issued out a written determination. No breach of the Administrative Justice Act was shown to have occurred.

It was for the above reasons that I dismissed the application with costs.

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.

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Audi Alteram Partem Rule re: Approach, Orders Granted Without a Hearing and the Doctrine of Notice

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

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Zimbabwe

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

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

SC107-21 : METALLON GOLD ZIMBABWE (PVT) LTD and OTHERS vs SHATIRWA INVESTMENTS (PVT) LTD and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE and MASTER OF THE HIGH COURT and REGISTRAR OF COMPANIES
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD
Ruled By: TAKUVA J

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

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

HB37-15 : LAWRENCE CLEMINSON vs BRIAN SHER and RUEBEN POSWELL (as executor in the Estate Late Sally Lieber also known as Sally Zella Lieber)
Ruled By: MUTEMA J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

HB59-15 : NOMUSA NCUBE (as Executrix Dative of Estate Late Alice Nkala) vs GOODWILL NKALA
Ruled By: MOYO J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

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

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

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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

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

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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