The learned author, C H MUCHECHE, in his book, A Practical Guide to Labour Law, Conciliation, Mediation & Arbitration in Zimbabwe (2^nd ed African Dominion Publications, Harare,) opines that resort to the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006 (National Model Code) is permissible if there is no applicable domestic Code of Conduct.

Quoting PROFESSOR MADHUKU, the learned author states as follows:

“According to Professor Lovemore Madhuku, both section 12B(2) of the Labour Act and section 5(b) of S.I.15 of 2006 compel the use of S.I. 15 of 2006 in the absence of a registered Code of Conduct. The expression, 'in the absence of', must be interpreted purposefully. The mere existence of a registered Code of Conduct is not sufficient to oust resort to S.I.15 of 2006. There must be a registered Code of Conduct applicable to the case in question. Where there is a registered Code of Conduct which is inapplicable to the circumstances of the case, there is 'the absence of an employment code' for purposes of section 12B of the Labour Act and section 5(b) of SI 15 of 2006…,. One cannot apply a metal straight jacket and conclude that in every situation where an employment Code of Conduct exists, it automatically follows that such a Code of Conduct should solely be used to the exclusion of the National Code of Conduct.”

This is the sort of case which the learned author had in mind when he made the above remarks….,.

The Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 is the model code envisaged in section 12B(2)(b) of the Labour Act. Ordinarily, it is meant to provide a platform for settling labour disputes where there is no internal or domestic disciplinary Code of Conduct at the workplace.

Considering that it is undesirable for parties to a dispute to be left without an appropriate mechanism of resolving their labour disputes, like PROFESSOR MADHUKU and C H MUCHECHE, I consider that section 12B(2)(b) of the Labour Act should be given a broad, purposeful interpretation to include circumstances where an existing internal Code of Conduct or dispute resolution mechanism cannot, for justifiable reasons apply to a particular case. It therefore appears to me that the legislator intended the model Code of Conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate, for good reason, to apply any other dispute resolution mode. To that extent it is a universal disciplinary Code of Conduct fitting all circumstances according to the exigencies of each case within the confines of the Labour Act.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

I take the view that even if the respondent had sought to rely on the review application filed in the Labour Court, which it has not done, the applicant would still be entitled to have the award registered because it remains effectual and in force. It has not been set aside or suspended pending the hearing of the review application.

In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal. I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) 206 E where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

While the Labour Act is silent on the effect of a review application, it would be absurd to formulate a construction that would allow litigants to circumvent the provisions of section 92E(2) of the Labour Act [Chapter 28:01] by couching their challenge of an arbitral award to the Labour Court as a review instead of an appeal.

Clearly, such a review application would not suspend the award.

Factual Background

On the 6^th June 2012, one Mxibi Masuku, a driver at Townsend High School, Bulawayo was given a note by the school head authorizing him to park a school minibus at Entumbane Police Station overnight for security reasons. It is common knowledge that members of the public often park their vehicles outside police stations overnight, where they perceive security to be tighter, than at their own residences. In this instance, the school driver resided near the police station and it was found prudent that after completing his runs he would park the school bus at a safe place. What appeared to be a simple and straight forward request to park the school bus suddenly turned ugly leading to the police disciplinary inquiry which is now the subject of this review.

Mxibi Masuku walked into the charge office at Entumbane late in the night. Behind the desk was the applicant. He was the duty officer on that particular night. Mxibi Masuku handed a written letter to the applicant which had been authored by the school head. The applicant took the letter and read it. The school driver was not quite prepared for the response he received from the applicant. The applicant was not amused. He asked Masuku whether the police station was a car park. He was not yet done with the stunned driver. He stated that the police were not “Safeguard” personnel who looked after people's properties. He then examined the letter again and said the letter was not properly written. The applicant pointed out that the letter from the school head was not “requesting” but “authorizing” that the vehicle be parked at the police station. The applicant took the letter and made some comments in red ink at the bottom of the letter. The words endorsed on the letter by the applicant were certainly not kind but strong words. He remarked as follows:-

“Mrs M. Moyo

Please be advised that it is not our mandate and requirement as our organisation ZRP to safeguard your vehicle at our camp.

Find your own means; police officers are not security guards and there is no car park for safekeeping vehicles.

Signed

Sgt Mabhunu”

Mxibi Masuku parked the minibus outside the police station and left.

I cannot quite comprehend what it is that caused such response from the applicant. I am sure that the school head at Townsend High School knew very well that Entumbane Police Station was not a car park. I am also certain she was aware that the Zimbabwe Republic Police had no mandate to provide security services to members of the public. Mrs Moyo, the school head at Townsend High School, found the letter to be rude and utterly unprofessional. She filed a complaint with the Zimbabwe Republic Police. I reproduce hereunder the complaint letter that eventually set in motion disciplinary proceedings against the applicant:-

“Assistant Commissioner Gora

Zimbabwe Republic Police

Bulawayo

14 January 2013

Dear Sir,

Re: Complaint on attached response from Sergeant Mabhunu

Please find attached a letter which was written by the Head of Townsend High School authorizing the school driver to park the school kombi at Entumbane Police camp during the Youth Education through Sport (YES GAMES) which were being hosted by Bulawayo from 6 December to 9 December 2012 and the SRC had requested for a donation in the form of transport from Townsend High School.

The driver, Mr Masuku, resides in Entumbane and due to the late hours that he was going to be working during this National event, it was only logical to allow him to take the kombi to Entumbane and then, because he had no safe place to park the car overnight, it was seen fit that he be authorized to park the kombi at the nearest police station with the understanding that the ZRP is always there to offer security in time of need, especially during National events.

It is therefore very surprising and disappointing to get the response, that is written in red ink, from Sergeant Mabhunu. He even chose to underline and write in red ink on the same letter written by the head and this office views that as gross disrespect and very unprofessional. This school enjoys very cordial relations with the ZRP in general and would not like to spoil the relationship because of Sergeant Mabhunu's rudeness. We feel that he should have denied us the service in a polite manner if at all it was necessary to deny that service. Townsend High is a Government school and will always rely on the ZRP to offer assistance when it is needed.

Our apologies if the school erred in requesting for your organisation's service and please do not hesitate to correct the school. If the school did not err, then we request that corrective action be taken to mend the relations that have turned sour because of Sergeant Mabhunu's response.”

The Officer In Charge, Entumbane was instructed to institute disciplinary proceedings against the applicant. A trial by a single officer was conducted by Superintendent Evelyn Taurai Philip in terms of the Police Act [Chapter 11:10]. The applicant was duly convicted. His appeal against both conviction and sentence was dismissed by the first respondent.

On 29^th July 2014, the applicant filed a Court Application For Review. The broad grounds for review are that:

1. The single officer had no jurisdiction to preside over the matter.

2. The trial officer was biased in the manner she conducted the proceedings.

3. The trial officer denied her the opportunity to secure legal representation.

I now deal with each of the grounds for review.

(a) The trial officer lacked jurisdiction

The thrust of the applicant's argument is that in terms of the police uncoded Rules, dated 17 April 1980, it is provided that:

“As far as possible, and without serious impairing of efficiency, members of rank of sergeant, sergeant major and section officer may not be tried by an officer who has less than three years in rank of Superintendent and above.”

The first respondent contends that despite the fact that the trial officer was one year in the rank of Superintendent, she had the jurisdiction to try the applicant in terms of section 34 of the Police Act [Chapter 11:10] by virtue of being an officer of the rank of Superintendent. The relevant section provides as follows:

“34. A member, other than an officer, who is charged with a contravention of this Act or any order made thereunder or any offence specified in the Schedule may be tried by an officer of or above the rank of Superintendent and sentenced to any punishment referred to in paragraph (d) of subsection (2) of section twenty-nine.”

It is clear that the Police uncoded rules were essentially crafted for the purposes of enforcing police discipline in the Zimbabwe Republic Police. These rules do not replace the Police Act. They compliment the Police Act. The provisions of the uncoded rules state that “as far as possible, and without serious impairing of efficiency of members, a member should be tried by a person holding the rank of Superintendent for at least three years.”

I have no doubt that the trial officer had the jurisdiction to preside over the disciplinary hearing. The power to preside over the matter is derived from the provisions of section 34(1) of the Police Act [Chapter 11:10]. I conclude therefore, that this ground of review has no merit.

(b) The trial officer was biased

I have carefully perused the record of proceedings and there is no evidence of bias or malice on the part of the trial officer. The applicant was given the chance to defend himself. He cross-examined witnesses at length and in an effective manner. He was given the chance to bring his witnesses to the hearing but failed to do so. He was content to argue that his witnesses were unwilling to come and testify in his favour. In particular, the applicant indicated that he wished to call the officer in charge at Entumbane Police Station at the time. The fact of the matter is that the report by the Officer In Charge, Police Station Entumbane is part of the record of these proceedings. In that report, the Officer In Charge was of the view that this was a minor issue but that was not the view of the Officer Commanding Bulawayo District who gave a direction for disciplinary proceedings to be instituted against the applicant. The trial officer did not conduct these proceedings in an irregular manner. The record clearly shows that whenever the applicant required the case to be postponed his requests were granted.

On this ground of review, I did not find any evidence of bias from a reading of the record. If anything, the trial was conducted in a fair and proper manner.

(c) The trial officer denied applicant the opportunity to secure legal representation

I observe that the trial before the single officer was not finalised on a single day but over a period of time extending from 17 May 2013 to 18 November 2013. The matter was postponed on four different occasions. The applicant was given ample time to engage the services of a legal practitioner of his own choice. This is buttressed by the fact that the applicant indicated, when the trial commenced, that he wished to conduct his own case. In any event, the applicant could have engaged a legal practitioner at any stage of the trial. The trial officer did not prevent the applicant from engaging a legal practitioner of his choice. The record reflects that at the close of the State case the applicant requested a postponement to enable him to engage the service of a legal practitioner. The matter was postponed for continuation to the 5^th of July 2013. When the trial resumed, the applicant was asked whether he had secured the services of a lawyer. The applicant responded by pointing out that he did not mean to bring a lawyer as such but that he just wanted to consult. The applicant then proceeded with his defence case. The applicant requested a further postponement after leading evidence, indicating that he wished to call a crucial witness in support of his defence. The matter was again postponed to the 28^th of August 2013 at the instance of the applicant. When court resumed, the applicant informed the trial officer that his witness was not going to attend court. The applicant closed his case and made oral submissions in quite some detail.

It is clear that the trial was conducted fairly and that at all material times the applicant was afforded the opportunity to engage the services of a lawyer. There was no irregularity in the manner the trial officer handled the proceedings.

Under section 69(4) of the Constitution of Zimbabwe Amendment (No.20) 2013, the applicant's right to a fair hearing is asserted in the following terms:

“Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.”

The question of legal representation was considered in the following cases:- Dladla & Others v Administrator, Natal & Others 1995 (3) SA 769 (N); Pett v Greyhound Racing Association Ltd [1969] IQB 125 (CA) [1968] 2 ALL ER 545; Chirenga v Delta Distribution HH75-03.

As I have already pointed out, the applicant was given enough time to secure the services of a lawyer. The matter was postponed at his instance and when proceedings resumed he stated that he just needed to consult. The facts of this matter clearly indicate that the applicant was not denied the right to a legal practitioner. His contention that he was not treated fairly is, to say the least, being disingenuous.

The application lacks merit. In my view, the trial officer had jurisdiction conferred upon her under section 34 of the Police Act [Chapter 11:10]. There is no evidence of bias in the conduct of the trial. The applicant was, at all material times, given the opportunity to engage the services of a legal practitioner. He chose to represent himself.

In the result, I find that this application is ill-conceived and make the following order:

1. The application be and is hereby dismissed.

2. There shall be no order as to costs.

This is an application for review in which the grounds have not been put in a concise and precise manner. The order sought is couched as follows:

“1. That the proceedings of the trial held up to the 23^rd of March 2012 by the 2^nd respondent, subsequently confirmed by the 1^st respondent, be and are hereby set aside.

2. That the confirmation by the 1^st respondent of the decision initially made by his single officer be set aside.

3. That the convening of the Board of Inquiry (suitability) by the 1^st respondent against applicant before finalisation of this review application be deemed unlawful.

4. The conviction of applicant under paragraphs 27, 35 and 34 of the schedule to the Police Act [Chapter 11:10] be and is hereby quashed.”

The facts are that the applicant is a constable in the Zimbabwe Republic Police. He appeared before a police disciplinary trial facing three counts of contravening paragraphs 27, 34 and 35 of the Schedule to the Police Act. In Count 1, he was alleged to have solicited or accepted a bribe. Count 2 relates to an allegation that he acted in an unbecoming or disorderly manner and in Count 3 the averment was that the applicant omitted or neglected to perform any duty or performed a duty in an improper manner.

The detailed facts of what the applicant is alleged to have done are not relevant for purposes of this application, suffice to state that at the end of the trial, on 28 February 2012, the applicant was found guilty in respect of the three (3) counts. He was dissatisfied and informed the trial officer that he intended to note an appeal to the first respondent.

The applicant requested for a record of proceedings to enable him to prepare grounds of appeal.

Instead of furnishing this record, the second respondent refused to grant the applicant access to the record and ordered the applicant's immediate detention at Mkwasine Police Station. The following day, the applicant was, on the second respondent's instructions, whisked away to ZRP Fairbridge where he commenced serving the 14 days imprisonment. Meanwhile, the applicant's legal practitioner filed a notice of appeal without perusing the record of proceedings. He subsequently filed an urgent chamber application under cover of case number HC5404/12 for the applicant's release since he had filed this notice of appeal within the stipulated 7 days. The order was granted and he was released after serving a term of 6 days imprisonment.

The applicant's erstwhile legal practitioners addressed a letter to the second respondent on the 26^th March 2012. The full letter reads as follows:

“…,. We have been instructed to act on behalf of Cst Moyo. Please note our interest. We write to advise that we have been instructed to follow the matter up and make an appeal on his behalf. In fact, we have been advised that a notice of appeal was given soon after trial. We kindly advise that we are here to file the notice and grounds of appeal.

However, to enable us to file comprehensive grounds of appeal to the Commissioner General and review proceedings in the High Court we require a record of proceedings. To achieve this end we kindly request your good officers to furnish us with the record of proceedings timeously so that we deliver the grounds before the expiration of seven days.

Please note that this is the right of a member to have a copy of record of proceedings so that he prepares his appeal and review proceedings thoroughly and to test the correctness of the procedure adopted.

The appeal is against both conviction and sentence.”

The second respondent's reply is in the following terms:

“1….,.

2. We received your correspondence pertaining your appointment by above member to represent him in lodging an appeal against both conviction and sentence to the Commissioner General of Police.

3. Be advised that the record of proceedings will not be released to you are this is an internal disciplinary matter.

4. The appellant will assist you with his notes of the trial as he was in attendance throughout the proceedings…,.”…,.

The letter is dated 2 April 2012 and signed by the second respondent. Upon receipt of the letter, the applicant's legal practitioners took the matter to the first respondent by letter dated 15^th May 2012. The letter states:

“Please find enclosed herein notice and grounds of appeal in the matter that were filed and issued by the Chiredzi District Clerk on 29 March 2012 who promised to transmit same to the Headquarters. Further, take notice that we requested a record of proceedings from the District Clerk and the trial officer, Superintendent Nyamaropa, who refused with it on wrong legal conception as his letter to us depicts.

We would like to advise that we do not want to proceed in the manner we did in the Sgt Largest Tsumba against Dispol Mbare District.”…,.

The first respondent did not reply but proceeded to dismiss the appeal on a technicality on 28 August 2012.

Aggrieved, the applicant filed this application on the 5^th of October 2012 on a litany of grounds, the bulk of which are irrelevant and inappropriate in an application for review. His legal practitioner properly conceded that the only valid ground is the denial of access to the record of proceedings by the second respondent. He amended the prayer to align it to the sole ground for review.

The issue in casu is whether or not the audi alterum partem principle was adhered to. Put differently, did the second respondent's refusal to supply the applicant with the record of proceedings amount to a violation of the applicant's right to procedural fairness?

What is procedurally fair must be determined in the light of the whole of the circumstances.

The audi principle was described by MILNE JA in South African Roads Board v Johannesburg City Council SA 1 (A) as being;

“…, a rule of natural justice which comes into play whenever a statute empowers a public official or body to do an act or give a decision prejudicially affecting an individual in his liberty or property or existing rights, or whenever such an individual has a legitimate expectation entitling him to a hearing, unless the statute expressly, or by implication, indicates the contrary.”

It should be noted that the duty to act fairly, however, is concerned only with the manner in which decisions are taken; it does not relate to whether the decision itself is fair or not. What the duty to act fairly demands of the public official or body concerned was succinctly stated by LORD MUSTIL in Doodly v Secretary of State for the Home Department and Other Appeals [1993] 3 ALL ER 92 (HL) as follows:

“What does fairness require in the present case? My Lords, I think it is unnecessary to refer by name or to quote from any of the often cited authorities which the courts have explained what is essentially an intuitive judgment. They are far too well known. From this, I derive the following;

(1) Where an act of Parliament confers an administrative power, there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

(2) The standards of fairness are not immutable. They may change with the passage of time both in the general and in their application to decisions of a particular type.

(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects.

(4) An essential feature of the context is the statute which creates the discretion as regards both its language and the shape of the legal and administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both.

(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he be informed of the gist of the case which he has to answer.”…,.

In Rwodzi v Chegutu Municipality HH86-03, MAVHANGIRA J…, stated one of the minimum requirements of a fair hearing as;

“…, the employee is entitled to be informed of the reasons for a decision.”…,.

Also, in terms of section 35(1) of the Police Act [Chapter 11:10], the proceedings must be as close as possible to those in the Magistrates' Court. The section states;

“35 (1) The proceedings before or at any trial by a board of officials or an officer in terms of this Act, shall as near as may be, be the same as those prescribed for criminal cases in the court of Zimbabwe.”

In the Magistrates' Courts, accused persons are not denied access to court records where they will be applying for review or appealing.

Quite evidently, the denial of access to the record of proceedings by the second respondent violates section 35(1) of the Police Act. Such violation amounts to a gross irregularity in the proceedings. In this regard, I associate myself with SMALBERGER JA's remarks in Administrator Transvaal, Ors v Theletsane and Ors 1991 (2) SA 192 (A)…,. The learned judge of appeal stated that;

“What the audi rule calls for is a fair hearing. Fairness is often an elusive concept; to determine its existence within a given act or set of circumstances is not always an easy task. No specific all encompassing test can be laid down for determining whether a hearing is fair - everything will depend upon the circumstances of the particular case. There are, however, at least two fundamental requirements that need to be satisfied before a hearing can be said to be fair; there must be notice of the contemplated action and a proper opportunity to be heard.”…,.

In casu, it cannot be said that the first and second respondents allowed the applicant the right to be heard fairly.

The first respondent was notified of the irregularity prior to the determination of the appeal but did not rectify the anomaly. As regards the second respondent, he specifically declined to give the applicant the record of proceedings. This is common cause.

It goes without saying that the first respondent, as the Commander of the Police Service, is duty bound to ensure that rights of all members are protected. Whenever it appears that these rights are infringed, he should take corrective measures to rectify the anomaly. The first respondent was supposed to direct the second respondent to serve the applicant with a copy of the record of proceedings. Instead, he dismissed the appeal despite that he was aware the applicant had not had sight of the record of proceedings.

In my view, the second respondent, by denying the applicant the record of proceedings, and the first respondent, by omitting to direct that the applicant be served with the record of proceedings, suffocated the applicant's right to be heard. The applicant was not afforded adequate facilities by the second respondent. Consequently, it cannot be denied that the applicant was fighting against the State which had access to the record which he did not have. It follows, therefore, that the State was more equipped than the applicant….,.

For these reasons, I make the following order;

(1) The decision of the first respondent be and is hereby set aside.

(2) The respondents be and are hereby ordered to serve applicant with the record of proceedings within 14 days of the granting of this order.

(3) The applicant be and is hereby ordered to file a notice of appeal and grounds thereof within 14 days of receipt of the record of proceedings.

(4) The convening of a Board of Inquiry be and is hereby stayed until the determination of the appeal by the first respondent.

In Rwodzi v Chegutu Municipality HH86-03, MAVANGIRA J…, stated one of the minimum requirements of a fair hearing as;

“…, the employee is entitled to be informed of the reasons for a decision.”…,.

It was also the applicant's contention that his fundamental right to fair labour standards, enshrined in section 65(1) of the Constitution, was violated by the first respondent. It was alleged that his dismissal from the first respondent's employ was unfair. In support of this allegation, the applicant narrated a number of alleged procedural irregularities, ranging from the composition of the first respondent's disciplinary committee and appeals committee to sinister motives of the Chairman of the latter.

The applicant did not deny the alleged commission of the offence.

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

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

This is an appeal against the whole judgment of the Labour Court sitting at Bulawayo handed down on 19 September 2011 in case number LC/MT/28/10. Leave to appeal and condonation of late noting of appeal as well as extension of time within which to note an appeal were granted by this Court on 26 February 2016.

There were two matters for determination before the Labour Court: proceedings for the setting aside of an arbitral award (the first matter) and an appeal against the employer's decision to terminate the employment of the employee (the second matter). The Labour Court dismissed both matters and the appellant, a self-actor, has appealed against both decisions, on the following grounds:

1. The court a quo erred, grossly, at law, in its finding that what was placed before it was an application for review as opposed to an appeal;

2. The court a quo erred, grossly, at law, by not finding that the award was contrary to public policy for the arbitrator sought to demand receipts - an issue which did not emanate from the parties nor was it a requirement of the policy he held was binding between the parties.

3. The court a quo erred, grossly, at law, by not finding that by singling out appellant for disciplinary action and leaving the co-accused persons the respondent acted ultra vires article 23(2) of the Declaration of Rights Charter.

4. The court a quo grossly erred at law by not finding that the appellant was wrongly convicted.

5. The court a quo grossly erred at law by re-establishing the charges which had been quashed by the respondent's Appeals Committee.

6. The court a quo grossly erred at law by not observing the provisions of section 12B(4) of the Labour Act as required by the law of unfair dismissal.

The appellant then sought, as relief, the setting aside of the arbitrator's award and its substitution with the granting of his claim for $3,840= and his own re-instatement in employment or payment of damages in lieu thereof.

BACKGROUND FACTS

The common facts are that the appellant and the respondent were employer and employee since 2005. The appellant was employed as a Stock Control clerk. In September 2004, the respondent had entered into a Works Council agreement with its employees regarding transfer expenses. In 2009, the appellant was transferred to Victoria Falls at one of the respondent's commercial depots. The appellant then raised a complaint that his transfer expenses were not met. The appellant later took up the matter to the Human Resources department and was paid US$359= in April 2010. The appellant submitted that no breakdown of the money had been given. He felt short-changed as he believed that he was not paid in accordance with the 2004 Works Council agreement. The appellant then raised a complaint with a Labour Officer. Conciliation process failed and the dispute was referred to compulsory arbitration. The arbitrator heard the matter and dismissed it for the following reasons:

1. There was no explanation as to what the claim for transport was based on.

2. There was nothing in the form of receipts for the claim of hotel accommodation amounting to $384=.

3. The claim by the appellant for relocation allowance in the sum of $94=50 was valid but the appellant had already been paid $359=, an amount well above $94=50, thus the claim had already been taken care of.

Aggrieved by the arbitrator's decision, the appellant instituted proceedings to have the arbitral award set aside by the Labour Court.

Review Or Appeal?

The issue before the Labour Court was whether the court was seized with an application for review or an appeal.

The Labour Court concluded that the application before it was a review and not an appeal and that it had no jurisdiction to review the arbitrator's decision. The appellant has not challenged the court a quo's view that it had no jurisdiction to review the arbitrator's decision. Rather, the appellant has suggested, with scant authority, that a court called upon to review a matter has the discretion to treat the review as an appeal. On the record it is clear that what was brought before the court was a review application.

However, what complicates this matter is that the appellant, a self-actor and layman, claims that he had intended to bring an appeal to the Labour Court but was misled into filing a wrong application by an officer of the Labour Court, an Assistant Registrar called Mr Muna - who was allegedly acting in connivance with the respondent.

In the court a quo, the appellant expressed his bafflement thus:

“I was advised by Mr Muna that I should lodge a review, for if you lodge an appeal, it may spend two years before the matter is heard in court. As a lay person, I requested Mr Muna to help me, to assist me for the matter to be heard quickly. He said money is requested in the amount of US$50=. As a person who wanted to be assisted I sought for money. I managed to get US$40= and he received it and he prepared the papers…,. So where I am right now I am a confused person, that I am given advice by members of this court which then leads to the matter being of no use in the same court.”

Commendably, upon hearing of this, the judge a quo immediately called the police to investigate. They apprehended Mr Muna and incarcerated him pending trial. The court a quo reflected and concluded as follows on the matter:

“Appellant then said that his intention was to appeal against the arbitrator's decision but when he came to the labour offices, he was advised by the court's Mr Muna to make an application for a review. He took up the advice and ended up paying $40=. He had his application for review prepared by Mr Muna. Looking agitated, he said that he could not appreciate how he could be penalized when he got the advice from the court. Unfortunately, this was wrong advice.

As a result of this complaint against Mr Muna, investigations had to be instituted by the Registrar concerning the alleged advice. However, the appellant never made a request to the court to have Mr Muna called as a witness.

What is in the record is a well prepared application for review. Applicant approached this court with that application. It was served on the respondent. This is what the court had before it, and was called upon to review.

Mr Maguchu, having submitted that this court had no jurisdiction in terms of the law to entertain a review against the decision of the arbitrator, Applicant was not heard to dispute this nor was he heard to say he was making an application for an appeal against the decision of the arbitrator. He was neither heard to say he was making an application for his review application to be altered to that of an appeal after he had raised a complaint against Mr Muna. In the end result, I find that I must deal with a review against the decision of the arbitrator. Having addressed myself on the law…, I find that this court has no jurisdiction to entertain the application for a review against the decision of the arbitrator. The application is dismissed.”

The attitude displayed by the court a quo above, in my view, betrays a failure to act fairly and assist an unrepresented litigant. Once the court had initiated the process which led to the investigation of Mr Muna's conduct, the matter was now squarely in the court's hands so that it could not abdicate its responsibility and merely leave it up to the appellant to call Mr Muna as a witness. Worse still, the same court could not further hold it against the appellant for failure to have the witness called. The court was seized with the fact that Mr Muna's alleged irregular advice was the subject of the Registrar's investigation, yet it appears to have shown no interest in the outcome of that inquiry.

The appellant appealed to the Labour Court against the decision of the respondent's Appeals Committee, alleging procedural irregularities and impugning the Committee's decision on the merits of his dismissal from employment with the respondent.

The pertinent background to the matter is that the appellant, who was employed by the respondent, was given a supervisory role over two casual employees. He sent the two to the premises of National Foods Limited to pack and stack used bags in packs of 100 bags each, as directed by National Foods. The bags had been paid for and were to be transported to the respondent's premises by the appellant. It was later discovered, just before the bags were to be removed, that the two employees had packed 110 instead of 100 bags per pack, suggesting an intention to steal the extra 10 bags per pack. The appellant was charged with theft and appeared before the disciplinary committee, and, later, the Appeals Committee.

During the disciplinary hearings the two casual employees testified that they had acted under the instructions of the appellant in packing more bags than had been instructed by National Foods. The appellant, when he was given the opportunity to do so, declined to cross examine the two witnesses.

The Labour Court found that the procedural irregularities raised by the appellant did not vitiate the proceedings of the Appeals Committee because:

(a) He had received a fair hearing before the disciplinary committee and the Appeals Committee, which relied on the evidence presented to the disciplinary committee; and

(b) No prejudice was shown to have been suffered by him as a result of the alleged irregularities.

The issue before us, therefore, is whether the court a quo erred in finding that the irregularities alleged were not so fatal as to vitiate the disciplinary proceedings; that the appellant was afforded a fair hearing and that he was properly found guilty of theft.

It is our unanimous view that the court a quo correctly found that the procedural irregularities alleged by the appellant did not vitiate the disciplinary proceedings conducted by the respondent. Furthermore, we are satisfied that the Labour Court correctly found that no prejudice was occasioned to the appellant, as, in the circumstances of the case, he had received a fair hearing before the disciplinary committee, and, subsequently, the Appeals Committee.

The court, in our view, properly relied on the case of Watyoka v Zupco SC87-05, where this court stated as follows:

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

That being the case, we find that the court a quo correctly proceeded to determine the matter on the merits.

Turning to the merits of the matter, we are satisfied that the Labour Court properly analysed the evidence before it. We note, in particular, that the appellant declined to cross-examine the witnesses who gave evidence against him, which linked him to the alleged theft. In our view, the evidence of the witnesses in question remained uncontroverted. On this basis, we are unable to find that the court a quo misdirected itself in any way in upholding the appellant's conviction and subsequent dismissal.

In the result, we are of the unanimous view that this appeal lacks merit and ought to be dismissed.

As regards costs, we are satisfied that in the particular circumstances of this case it would be inappropriate to penalize the appellant with an order for costs.

It is accordingly ordered as follows:

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

This is a clear case of forum shopping where the applicant has engaged in the triple jump routine of hop, step and jump from the court of a single officer, to the appeal court of the Commissioner General of Police and then to this court where he has arrived panting and breathless seeking a review of the decision of the single officer in disciplinary proceedings instituted against him.

The applicant, a police sergeant stationed at Zimbabwe Republic Police Gwanda was charged with contravening paragraph 34 of the Schedule as read with sections 29 and 34 of the Police Act [Chapter 11:10], that is, omitting or neglecting to perform any duty or performing any duty in an improper manner. He initially appeared at Gwanda District Headquarters and pleaded to the charge on 19 August 2016 but the trial dragged on and on for one reason or the other until 3 January 2017 when he was convicted and sentenced to seven days detention at Fairbridge Detention Barracks.

The applicant was aggrieved.

On 9 January 2017 he noted an appeal in terms of section 34(7) of the Police Act to the Commissioner General of Police against both conviction and sentence. On 10 January 2017, the trial officer, who is the first respondent herein, responded to the appeal which response was served on the applicant on 11 January 2017. The appeal in question is yet to be determined by the Commissioner General.

Upon receipt of the first respondent's response, and in a sudden turn of events, the applicant filed this review application in this court on 11 January 2017 on the following grounds:

“GROUNDS FOR REVIEW

1. The 1^st respondent grossly misdirected himself when he convicted the appellant through retrospective application of the law.

2. The 1^st respondent erred when he failed to treat the court as a record (whatever that means).

3. The 1^st respondent erred when he convicted the applicant on a wrong charge altogether.”

In support of the review application, the applicant stated, in his founding affidavit, that the first respondent had conducted the trial proceedings in a manner that was contrary to what was expected of a court of record. This is because the record of proceedings is not a reflection of what transpired in court in that the objections made by his defence counsel were not recorded. In addition, the first respondent did not afford him an opportunity to question witnesses on issues arising from questions posed by the court.

The applicant stated, further, that because the trial officer merely rubber-stamped what was said by the State on an exception to the charge he had made long after pleading not guilty to it, the trial officer ended up convicting him on a wrong charge altogether. Further, because he only became aware of circular 1/2012 and circular 1/2009 on the day of the trial, he could not be charged on the basis of those circulars as they had not been brought to his attention before the alleged offence. There was retrospective application of the law.

It is significant that the applicant filed this application without completing the appeal process which he had commenced and without bothering to withdraw the appeal either. The respondents immediately took that point in limine, namely, that the application for review was incompetent by reason that the applicant made it without exhausting domestic remedies available to him in terms of the Police Act, a process which he commenced and left hanging in preference to this application.

The respondents also took the preliminary point that there are no valid grounds of review as the applicant cannot seek review on what are, in essence, appeal grounds.

In his answering affidavit, the applicant contemptuously dismissed the points in limine stating:

“AD IN LIMINE

The points in limine raised by the 1^st respondent are baseless and meant to test the court's intelligence. I am advised, which advice I accept, that this Honourable Court enjoys inherent powers to review proceedings and decisions of the lower courts. Further, in terms of the Constitution, section 70(5)(a), I have a right to have my case reviewed by a High court.”

So many words were used in that response which leave one none the wiser after reading it.

The issue is simple, after lodging an appeal to the Commissioner General, which is a remedy available to the applicant aggrieved by the decision of a single officer, did the applicant exhaust that remedy?

It does not assist the applicant to use diversionary tactics and say a lot of things without addressing a simple and pointed issue. There is therefore no doubt that the applicant has not denied that the remedy of an appeal was commenced but not completed. That which is not denied in pleadings is taken to have been admitted.

The applicant spurned the opportunity to explain why he did not exhaust internal remedies when it was presented to him electing to grand stand about the issue. Having left the appeal hanging and making an early approach to this court, on review, he was obliged to give good and sufficient reasons for doing so. This is because, this court will always refrain from exercising its general review jurisdiction where a party has not exhausted domestic remedies.

That is the point made by NDOU J in Sithole v Senior Assistant Commissioner and Others HB17-10 where the learned judge stated:

“If I am wrong in the above finding, still, the application had to be dismissed for failure to exhaust internal remedies. Even if it is true that the applicant failed to get audience with the 1^st and 2^nd respondents, applicant is at liberty to approach the Police Service Commission for relief - section 16 of the Police Trials and Boards of Inquiry Regulations, 1965. Thus, applicant's failure, without good and sufficient cause, to exhaust domestic remedies available to him is fatal to his application; Tutani v Minister of Labour and Others 1987 (2) ZLR 88 (H) and Communications Allied Svc(s) Workers Union of Zimbabwe v Tel-One (Pvt) Ltd 2005 (2) ZLR 280 (H) at 287.”

The above pronouncement cannot be faulted at all. Domestic remedies in respect of this matter are those provided for in the Police Act [Chapter 11:10] to a member aggrieved by the decision of a single officer. In terms of section 34;

“(1) A member, other than an officer, who is charged with a contravention of this Act or any order made there under or any offence specified in the Schedule may be tried by an officer of or above the rank of Superintendent and sentenced to any punishment referred to in paragraph (a) of subsection (2) of section twenty-nine;

(2)…,.;

(3)…,.;

(4)…,.;

(5)…,.;

(6)…,.;

(7) A member convicted and sentenced under this section may appeal to the Commissioner General within such time and in such manner as may be prescribed against the conviction and sentence, and, where an appeal is noted, the sentence shall not be executed until the decision of the Commissioner General has been given.”

As a sergeant, the applicant is not an officer as defined in section 2 of the Police Act. He therefore falls squarely under the provisions of section 34 of the Police Act which I have reproduced above. He has a remedy in terms of the Police Act to appeal to the Commissioner General. As I have said, he took that route, and, before the appeal was determined, he set about forum shopping which he cannot do.

It was stated in Tutani v Minister of Labour and Others 1987 (2) ZLR 88 (H)…, that where domestic remedies are capable of providing effective redress in respect of the complaint, and, secondly, where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust the domestic remedies before approaching the courts unless there are good reasons for not doing so. That judgment was cited with approval by the Supreme Court in Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S)…,.

Let me, therefore, repeat what I stated in Moyo v Gwindingwi NO & Another 2011 (2) ZLR 368 (H)…, ;

“In a line of cases, this court has determined that it will be very slow to exercise its general review jurisdiction in a situation where a litigant has not exhausted the domestic remedies available to him. A litigant is expected to exhaust available domestic remedies before approaching the courts unless good reasons are shown for making an early approach.”

See also Makarudze and Another v Bungu & Others 2015 (1) ZLR 15 (H)…,.

While it is true that this court has review jurisdiction even in respect of un-terminated proceedings of an inferior tribunal, it retains a discretion to decide whether to exercise that jurisdiction or not. This court will certainly not jump to exercise its jurisdiction where clearly the applicant has other remedies available to him which he has spurned in favour of making an early approach to this court. See Chiwundo v Zimbabwe National Family Planning Council HH212-13.

I am therefore satisfied that there is merit in the point in limine taken by counsel for the respondents. I do not agree with counsel for the applicant that domestic remedies did not provide an effective remedy in the circumstances or that the applicant was entitled to pursue both the appeal and the review at the same time because had he waited for the determination of the appeal he would have been out of time to bring the review application.

As I have said, an appeal is a remedy provided for in the Police Act. The applicant did not provide any explanation in both affidavits that he filed which could have shown good and sufficient cause for making an early approach. He could not attempt to do so in heads of argument filed by counsel. In any event, even the explanation in the heads of argument does not even begin to constitute good and sufficient cause required by case law.

This court has repeatedly stated that the eight weeks period during which a litigant is entitled to bring the proceedings under review only begins to run from the time the final decision in terms of the domestic remedies has been made. See Makarudze and Another v Bungu & Others 2015 (1) ZLR 15 (H). It was therefore within the rights of the applicant to exhaust the domestic remedies and then bring the review application after that. No good and sufficient cause for not doing so has been given.

In any event, I am not satisfied that there are valid grounds for review in this matter because what the applicant has set out as review grounds, vague as it is, are not proper grounds set out in section 27 of the High Court Act [Chapter 7:06] and indeed the common law. If anything, the applicant may be able to use them as grounds of appeal not review.

In the result, the application is hereby dismissed with costs.

This is an appeal against the judgement of the High Court in Case No. HC5569/17 in which the High Court dismissed an urgent chamber application seeking the stay of the appellant's detention, which was ordered by the Commissioner-General of Police (the second respondent), pending the finalisation of an application for review by the High Court of the proceedings before the single trial officer (the first respondent).

The High Court dismissed the urgent chamber application on the basis that the appellant had already appealed against the decision of the single trial officer to the Commissioner General of Police and could not therefore seek a review of the decision of the trial officer. The High Court also found that the appellant could not seek the stay of the detention order imposed by the Commissioner-General as he had not questioned the decision of the Commissioner General.

At the hearing of the appeal, the Court took the position that the present appeal should be confined to the specific facts pertaining to the appellant himself and the determination of the court a quo in that regard. The other questions raised on appeal were purely academic, relating as they did to other cases before the High Court and were therefore not properly before this Court.

As agreed with counsel, the issues to be determined herein were as follows:

(i) Whether the appellant was entitled to approach the High Court on review of the trial officer's decision after the dismissal of his appeal by the Commissioner-General.

(ii) Whether the appellant was entitled to approach the High Court to stay the order of detention imposed by the Commissioner General without having appealed his decision, pending the review of the trial officer's decision by the High Court.

This matter was set down on 22 June 2017 as an urgent chamber application. The applicant sought stay of his detention pursuant to disciplinary proceedings in accordance with the Police Act [Chapter 11:10], pending finalisation of his application for review, by the High Court, of the proceedings before a single trial officer.

The judge declined to hear the matter citing conflicting High Court judgments on matters arising out of police disciplinary proceedings. He thus directed the parties to agree on a Statement of Agreed Facts and contentious points of law for a two-judge panel to render an authoritative decision regarding this Court's powers over police disciplinary processes.

Facts

The applicant was found guilty, by a single trial officer, of accepting or considering accepting a bribe in connection with his position or duties as a member contrary to paragraph 27 of the Schedule to the Police Act [Chapter 11:10]. He was sentenced to 5 days detention in the detention barracks. He appealed to the Commissioner General of Police in terms of section 34(1) of the Police Act. His appeal was dismissed and he was notified to start serving his detention. He therefore filed an application for the High Court to review and set aside the decision of the Single Trial Officer.

The respondents opposed the application.

Pending such review, the applicant filed this urgent chamber application to stay his detention.

Background

The High Court has been inundated with applications seeking to review, or appeal against, the decisions of single trial officers or the Commissioner General of Police (the Commissioner General) after he has exercised his appellate power over decisions of single trial officers in terms of the Police Act. These applications have often been accompanied with applications seeking to stay necessary administrative procedures, either in pursuance of police disciplinary processes or the ordinary management function of the Commissioner General of Police, pending such review and/or appeal.

Issues for determination

In view of conflicting jurisprudence emanating from the High Court with regards to numerous matters of the same ilk, in circumstances where the Supreme Court has not yet had occasion to pronounce itself on these issues, the parties referred the following issues for determination by a two judge panel:

1. Whether or not there is a review that lies to the High Court against the decision of the single officer after appeal to the Commissioner General of Police?

Consequential issues flowing from the main issue, in my view, encompass the following:

(i) Whether or not a review lies against the decision of the Commissioner General of Police?

(ii) Whether or not when the applicant files a review application against the decision of the Commissioner-General of Police, the determination to detain a member by the Commissioner General of Police should be stayed pending the outcome of the review process?

(iii) Whether or not a Board of Suitability should be stayed pending review of the decision of the Commissioner General of Police?

2. Whether or not there is right of appeal to the High Court against the decisions of the single officer in police disciplinary matters?

3. Whether or not an appeal lies against the decision of the Commissioner General of Police?

4. Whether or not when the applicant files an appeal against the decision of the Commissioner General of Police, the determination to detain a member by the Commissioner General of Police should be stayed pending the outcome of the appeal?

5. Whether the determination to detain a member by the Commissioner General of Police shall be automatically stayed pending the outcome of appeal proceedings?

6. Whether or not a Board of Suitability should be stayed pending appeal against the decision of the Commissioner General of Police?

7. Whether or not dual prosecution is allowed in terms of the Police Act on the same allegations in view of section 278 of the Criminal Law (Codification and Reform) Act and section 70(1)(m) of the Constitution?

8. Whether or not a member who has a pending criminal case is entitled to full terminal benefits before the finalisation of the criminal case?

The court notes that some of these issues do not flow from the facts, and, ordinarily, would not have been subject of this judgment. However, for the reason that counsel for the applicant and the Attorney General's office are the legal counsel primarily responsible for bringing before the High Court and arguing on matters emanating from police disciplinary proceedings, and have requested the court's decision on all these issues; for the avoidance of further jurisprudential conflict, this judgment will thus address all the issues which I have listed above and which the parties have argued before this court.

Further, I believe that it is only proper to deal with all the issues that have been argued before the court in order to close the door on the opportunity to forum shop which has been created by the divergent decisions handed down thus far.

THE PARTIES' OMNIBUS SUBMISSIONS:

(a) Applicant's submissions

The applicant submits that in terms of section 70(5)(a) and (b) and section 171(1)(b) of the Constitution, the High Court has jurisdiction to entertain appeals from and carry out reviews of decisions of subordinate courts. Resultantly, any person is entitled to approach the High Court on appeal from a lower court.

As regards reviews, the High Court has inherent jurisdiction to entertain any application for review in terms of section 27(1) of the High Court Act [Chapter 7:06]. Further, the applicant submits, it can be inferred that the Police Act [Chapter 11:10], being silent on these issues, does not bar a member from so appealing from or seeking a review of the decision of the Commissioner General. Thus, any member is entitled to approach the High Court on appeal or to seek a review of the decision of the single trial officer or the Commissioner General.

Rateiwa v Kambuzuma Housing Coop & Anor 2007 (1) ZLR (H)…,.; Sadengu v Board President & Anor HH712-15.

In addition, the applicant submits that it is trite that any appeal or review automatically stays the decision being appealed against (Phiri & Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (1) ZLR 45…,.) or upon which review is sought (Ndlovu v Officer Commanding Zimbabwe Republic Police & Ors HB100-10) as “generally, all litigants are expected to await the finalisation of a matter before the court.”

Further, the applicant submits that, given that the Constitution, in section 193, clothes disciplinary tribunals with the same criminal jurisdiction as the Constitutional Court, the Supreme Court, the High Court and the Magistrates Court, it could not have been the intention of the legislature to subject members of the disciplined forces to dual prosecution on the same standard of proof beyond a reasonable doubt. This is particularly so, the applicant argues, because conviction allows for imprisonment for a term with no limitation. As a result, the Commissioner General crafted Standing Orders, section 45.3 of which limits the jurisdiction conferred in section 34 of the Police Act, to try only those members who would not have been charged with a criminal offence, as members charged with criminal offences must be dealt with in accordance with the Criminal Procedure and Evidence Act [Chapter 59].

These Standing Orders, the applicant avers, define criminal offences as any offence in terms of common law or any enactment other than the Police Act. Where an offence under the Police Act might also be an offence under the common law, therefore, the docket will be sent to the Attorney General to decide the forum for trial. Further, the applicant submits that section 70(1)(m) of the Constitution does not allow for a person to be tried for an offence for which they have been pardoned, acquitted or convicted on the merits. In that respect, the applicant submits, section 278 of the Criminal Law (Codification and Reform) Act does not apply to members of the police force as it conflicts with the Constitution and the specific provisions of the Police Act.

In any case, the applicant avers, the court has already pronounced that disciplinary processes should be stayed where a member has been tried in the Magistrates Court. Assistant Inspector Chibike v The Trial Officer & Anor HC1832/15.

Finally, the applicant submits that administrative processes like Boards of Suitability should be stayed pending the outcome of any appeal or review, otherwise the outcome of the appeal or review would be rendered a brutum fulmen, resulting in irreparable harm should a member be dismissed from employment as an outcome of those administrative processes. Proceeding with administrative processes which are based on allegations and convictions which are under challenge, he avers, would in fact amount to contempt or disrespect of court process.

Consolidated Fish Distributers (Pty) Ltd v Zive & Ors 1968 (2) SA 517…,. See also R v Secretary of State for Home Department, ex parte Muboyayi (1991) 4 All ER 72…,.

(b) Respondents' submissions

On their part, with regard to the issue of whether or not a member of the police force suffers double jeopardy should he face both disciplinary and criminal prosecution, the respondents submit that the Constitution, in section 193, permits for the establishment of courts to deal with disciplinary matters and accords those courts the jurisdiction to deal with criminal matters in a disciplinary context. Therefore, the Police Standing Orders which the applicant relies on as limiting the scope of the Police Act are contrary to the provisions of the Act, and, being subsidiary legislation, are therefore invalid to the extent of such conflict. In particular, the respondents argue that section 34(9) of the Police Act clearly provides that no member suffers double jeopardy when he faces disciplinary processes as conviction for contravening the Police Act shall not be regarded as conviction under any other law. Besides, the respondents further argue, the level of proof on disciplinary matters differs from criminal matters, and so do the levels of punishment, even if the same conduct by a member may give rise to both disciplinary and criminal charges. This is amplified by the provisions of section 278 of the Criminal Code which provides for a distinction between acquittals in disciplinary and criminal matters. Therefore, the respondents submit, there is no dual prosecution as prohibited by section 70(1)(m) of the Constitution.

Further, the respondents submit that while the High Court has original jurisdiction over all civil and criminal matters, and while each person is entitled to appeal against the decision of a lower court, the High Court's appellate jurisdiction is limited to the extent that it is conferred by statute; and, in this case, the relevant statute, the Police Act, does not clothe the High Court with appellate power over decisions of single trial officers. Such appellate power is reserved for the Commissioner General in terms of section 34(7) of the Police Act.

With regard to reviews, the respondents submit that the proceedings before the single trial officer are subject to automatic review by the Commissioner General in accordance with section 34(3) of the Police Act. However, since section 26 of the High Court Act gives the court power to review all and any proceedings and decisions of lower courts, tribunals and administrative authorities, it is quite proper for a member to seek review of either the decision of the single trial officer, or the decision of the Commissioner General (exercising his appellate or review power over decisions of single trial officers) or both, in terms of the Court's review powers as long as such review is in accordance with the High Court Rules.

The only limitation, according to the respondents, is that section 34 of the Police Act obligates members to exhaust internal remedies before approaching the High Court on review.

Thus, the respondents submit, where a litigant has appealed to the Commissioner General against the decision of the single trial officer, the review may be of either the decision of the single trial officer or the Commissioner General.

As for whether or not administrative proceedings must be stayed pending finalization of appeal or review, the respondents submit that, that is not necessary as administrative proceedings are divorced from disciplinary or criminal proceedings. This is because administrative processes normally relate to the statutory requirement to inquire as to the suitability of retention of a person in the force, or retaining a particular rank, salary or seniority. Moreover, the administration Boards merely make recommendations which do not bind the Commissioner General, and do not have the effect of automatically discharging a member from the force. According to the respondents, it makes no sense to automatically suspend the function of administrative Boards of Suitability pending review, when, in general, the institution of a review process does not, of itself, normally carry the same power. Therefore, interdicting the Commissioner General from administering the force pending review merely serves to unnecessarily interfere with his management function.

With regard to appeals, the respondents submit that since no appeal lies to the High Court against the decision of a single trial officer, suspension of administrative processes pending a non-existent right to appeal serves no useful purpose.

Finally, the respondents submit that a member with a pending criminal case is not entitled to full terminal benefits pending the finalization of the criminal case as the determination of the criminal matter may affect the benefits payable.

The Law

The parties agreed that this, and other similar matters, are rights-based cases, predicated on rights to administrative justice emanating from employment conditions. Thus, they involve the right to review of disciplinary processes, the right to appeal against disciplinary decisions, the right to stay of sentence and general stay of other administrative proceedings pending determination of review or appeal, as well as the right to freedom from dual prosecution.

It seems to me clear, therefore, that, in addition to the provisions of the Bill of Rights in our Constitution, given that Zimbabwe is signatory to African and international human rights instruments, the starting point governing the disposition of this matter is that basic principles of human rights law, including principles accepted in international human rights jurisprudence, are applicable.

(a) Applicable principles in international human rights law

In that regard, it is an accepted principle of human rights law that it is not every interference with a person's rights that must receive a remedy. This is particularly so where the right is not an absolute right, but is subject to other competing interests: viz security, public interest;

See African Commission on Human and Peoples' Rights v Republic of Kenya, Application 006/2012 @ p37, paragraph 129, where, in dealing with the right to land for indigenous people, the African Court on Human and Peoples' Rights (AfCHPR) stated:

“…,. Article 14 (of the African Charter on Human and Peoples' Rights) envisages the possibility where a right to property, including land, may be restricted provided that such restriction is in the public interest and is also necessary and proportional.”

or, as in this case, the need for a disciplined force to aspire to standards not normally expected of ordinary citizens; and, in this respect, the Zimbabwean Constitution provides, in Chapter 4, Part 5 for limitations on the enjoyment of fundamental rights and freedoms enshrined therein. See section 86(7) of the Constitution of Zimbabwe.

Consequently, a margin (commonly referred to, in human rights jurisprudence, as the doctrine of “margin of appreciation”) is accorded to authorities, to, where necessary, interfere with or place limitations on rights, to enable authorities to effectively function.

However, the United Nations Human Rights Committee has ruled that the law limiting or interfering with an individual's rights must be sufficiently precise to allow individuals to regulate their conduct. See Human Rights Committee, Keun-Tae Kim v the Republic of Korea Communication No.574/1994 CCPR/C/64/D/574/1994, 4 January 1999…,.

The African Commission on Human and Peoples' Rights has gone further to state that any limitation placed on rights must be founded on legitimate interests and be strictly proportionate with and absolutely necessary for the advantages to be obtained from such limitation. Therefore, the limitations should never have the consequence of making any right illusory.

See Jawara v Gambia 2000 AHRLR (ACHPR 2000). See also Lohe Issa Konate v Burkina Faso Application 004/2013 (AfCHPR).

As a result, international human rights jurisprudence has distilled the following step-by-step test to establish whether someone's rights have been infringed, and, if so, whether he should receive protection or a remedy:

1. Firstly, a court must enquire whether a right does exist. Does domestic or international law prescribe such a right? This is normally a matter of fact: viz, is there a law in existence which prescribes a particular right?

2. If the right does not exist, the matter ends there. However, if the right does exist the second step is to enquire whether there was an interference with the right. This is also a matter of factual evidence, viz: what actions were committed by an authority, and did they impact on a person's enjoyment of his existing rights? In other words, was the applicant prevented from enjoying the right that the law has prescribed for his benefit?

3. Should there be no interference with the right, then that will be the end of the matter. However, if an applicant was prevented from enjoying duly prescribed rights, then an inquiry must be made whether the interference was prescribed by law. Any interference with a right which is not sanctioned by law must of necessity result in a remedy accorded to the applicant against such interference. In assessing whether the interference was prescribed by law, regard must be had to the accessibility of the law sanctioning such interference and its foreseeability as well as the quality of the law, i.e. whether it is compatible with Constitutional and/or treaty obligations.

See Kopp v Switzerland ECHR 13/1997/797/1000…, where the court stated that:

“The expression “in accordance with the law”…, requires, firstly, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.”

4. Where the interference was not prescribed by law, then the applicant is entitled to a remedy. On the other hand, where the interference was sanctioned by law, the next step is to enquire whether the interference pursues a legitimate aim. That the interference is sanctioned by law is not enough justification unless the objective of the interference is legitimate or the interference is within legitimate expectations i.e. was there sufficient basis in the domestic law?

See Christian Education South Africa v Minister of Education CCT4/00, a decision of the Constitutional Court of South Africa where the Court was required to determine whether the interference, as prescribed by section 10 of the South African Schools Act 84/96, with the right to administer corporal punishment, did in fact violate the rights of parents of children in independent schools who had consented to the resort to corporal punishment in line with their religious convictions as guaranteed in the Constitution. The court held that the general aim of the South African Schools Act, to reduce violence in public and private spaces, to ensure the dignity, physical and emotional integrity of the child and security of children's persons from cruel, inhuman and degrading treatment far outweighed any right of the parents to be exempted from the prohibition to corporal punishment on the basis of their constitutional right to religious freedoms.

5. If the objective of the interference is not legitimate, an applicant must be accorded relief. However, even where the objective of the interference was legitimate, it must be necessary in a democratic society for it to pass muster. The word “necessary” has been interpreted NOT to be synonymous with “indispensable”, or to be as flexible as “desirable”, “useful”, or “reasonable”, but to denote whether there is a pressing social need. The question a court must address is, therefore, whether there are relevant and sufficient reasons for the interference, and, if so, whether the interference was proportional as between the interests of the individual and his institution or society at large?

See Tristant Donoso v Panama, Series C, No.193 (2009) where the Inter-American Court of Human Rights opined that in a democratic society, punitive power is exercised only to the extent that it is strictly necessary in order to safeguard essential legally protected interests from the more serious attacks which may impair them.

Where the interference was in the general interest, it must not be manifestly without reasonable foundation.

Christian Education South Africa v Minister of Education CCT4/00…,. See also Lautsi and Others v Italy ECHR Application 30814/06 where the European Court did not find it necessary, in a democratic society, that a centuries old tradition which was a part of the culture of the country, the crucifix, should be removed from schools.

6. Ultimately, the authorities should be accorded a margin of appreciation to protect other persons' rights and be able to manage or carry out their executive function. The European Court of Human Rights has affirmed that the doctrine of margin of appreciation is a useful and convenient tool to allow authorities to govern, manage or make executive decisions. However, its scope is not identical in every case, but varies according to context depending on the right in issue, its importance for the individual, and the nature of activities concerned.

See Case Relating to certain aspects of the laws on the use of language in education in Belgium: v Belgium Application No.1474/62; 1677/62; 1691/63; 1769/63; 1994/63; 2126/64 (ECHR). See also Buckley v the United Kingdom, 25 September 1996, 74 Reports of Judgments and Declarations 1996-IV (ECHR).

At the end of the day, there must be a fair balance or reasonable relation of proportionality to avoid an individual excessive burden which would amount to too wide a margin accorded to the authorities.

The Human Rights Committee explained the notion of proportionality in its General Observations No.34, on Article 19: Freedom of Opinion and Freedom of Expression, thus:

“Restrictions should not be too wide-ranging….,. Restrictive measures must comply with the principle of proportionality; they must be appropriate to achieve their protective function, they must be the least disturbing means among those that help achieve the desired result and they must be proportionate to the interests to be protected….,. The principle of proportionality must be respected not only in the law that institutes the restrictions, but also by the administrative and judicial authorities charged with enforcing the law.”

See also Lautsi and Others v Italy ECHR Application 30814/06 where the court found it disproportional to allow the parent of one child in a class of 30 to enforce her rights to a crucifix-free classroom as against the wishes of parents of the other 29 pupils.

The sum total of the test is that, as a general rule, an individual must have peaceful and unfettered enjoyment of his lawful rights. Any deprivation of such enjoyment must be both lawful and on good faith otherwise the individual is entitled to a remedy or compensation.

See the jurisprudence of the African Commission on Human and People's Rights, the African Court on Human and People's Rights, the United Nations Human Rights Committee, the European Court of Human Rights and the Inter-American Court of Human Rights excessive or disproportionate burden on the couple, on a proper balance with the interests of the community, if the house was destroyed without compensation. It follows that limitations on the enjoyment of rights are normally contained in legislation requiring or obliging individuals to comply with certain localised laws (local remedy) before accessing laws of wider or general applicability. Here too, international jurisprudence has developed guidelines with respect to exhaustion of local remedies that are applicable. Firstly, for a local remedy to be exhausted, it must be available, effective and sufficient and not unduly prolonged. The African Commission has defined “availability” as a remedy which can be pursued without impediment; “effectiveness” as a remedy which admits of prospects of success; and “sufficient” as a remedy capable of redressing a complaint.

In the case of Layla Sahin v Turkey ECHR 2005-XI (GC) 44774/98, a university in Turkey had banned the wearing of head scarfs by Moslem women. The European Court of Human Rights, in applying the test elucidated above, held that there was interference with the rights of Moslem women, which interference was prescribed by law and pursued the legitimate aim of promoting secularism in the university and was thus justified. Further, since the ban did not bar Moslem women from wearing head scarfs outside the confines of the university, it was proportionate to the aims pursued and was thus necessary in a democratic society.

The African Court on Human and Peoples' Rights has weighed in with the suggestion that the right to an available, effective and sufficient remedy which is not unduly prolonged goes hand in hand with the right to a reasoned judgment which is inherent in the right to a fair trial.

See Lohe Issa Konate v Burkina Faso Application 004/2013 (AfCHPR).

It goes without saying that, without a fair trial, even the right to any appeal becomes illusory and ineffectual.

Secondly, that a local remedy is inconvenient, unattractive or does not produce a favourable result is not enough to absolve one from pursuing such remedies, nor are doubts about the effectiveness of local remedies or prospects of financial costs involved.

See Human Rights Committee decision in A v Australia CCPR/C/59/D/560/1993 (A v Australia [1997] UNHRC 7, UN Doc CCPR/C76/D/900/1993). See also Article 19 v Eritrea (2007) AHRLR 73 (ACHPR2007).

It is incumbent upon a complainant to take or attempt to take necessary steps to exhaust local remedies. According to the European Court of Human Rights, even if an applicant has reason to believe that available local remedies and possible appeals will be ineffective, he should still seek them to allow local or domestic courts and/or tribunals and authorities the opportunity to develop existing procedures and rights by way of interpretation.

See Layla Sahin v Turkey ECHR 2005-XI (GC) 44774/98. See also DePalle v France 2010-111 ECHR.

This is particularly important for the maintenance of public order in a democratic society, and, in casu, there is no doubt that indiscipline in the police force would negatively impact on public order.

(b) Relevant Domestic Law

(i) The Constitution

Now, in our case, with the matter at hand, and similar matters, the principle of human rights law that it is not every interference with a person's rights that must receive a remedy, particularly where the right is not an absolute right, is captured in Chapter 4, Part 5 of our Constitution, which places limitations on the enjoyment of fundamental rights and freedoms enshrined therein.

See section 86(7) of the Constitution of Zimbabwe.

And, in further consonance with the international principles discussed above, especially, that any rights must be provided for by the law, the Constitution, in section 70, provides a broad brush stroke of the rights due to persons accused of any offence. In particular, section 70(1)(m) provides that an accused person has the right “not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits;”

Further, section 70(5) provides that;

“(5) Any person who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to —

(a) Have the case reviewed by a higher court; or

(b) Appeal to a higher court against the conviction and sentence.”

And, zeroing in on the principle that any limitations to rights must also be prescribed by law, section 171(1)(d) of the Constitution provides that the High Court has such appellate jurisdiction as may be conferred on it by an Act of Parliament. Consequently, deriving from this constitutional framework, section 33(2) of the Police Act gives the right to appeal to the High Court only to members convicted of a disciplinary offence by a Board of officers, not by a single trial officer. It is thus clear that an appeal from a single trial officer only lies to the Commissioner General of Police and not to the High Court. It seems to me, therefore, that section 70 provides the broad framework which protects an individual from double jeopardy and upon which the right to review or appeal is founded.

Section 171, on the other hand, provides for the extent and limits of the power of the High Court in dealing with the broad rights created in section 70. With particular reference to the matter in casu, section 171(1)(b) and (d) gives the High Court power “…, to supervise magistrates courts and other subordinate courts and to review their decisions;” and to sit as an Appellate Court as mandated by an Act of Parliament.

Thus, section 171(1)(b) gives unlimited power to the High Court to review decisions of subordinate courts, while section 171(1)(d) limits its appellate power to the extent that an Act of Parliament provides.

Further, in section 193(b), the Constitution allows disciplinary tribunals to deal with criminal matters, but only for purposes of enforcement or maintenance of discipline, as it provides that the following may exercise or be given criminal jurisdiction:

“…, a court or tribunal that deals with cases under a disciplinary law, to the extent that the jurisdiction is necessary for the enforcement of discipline in the disciplined force concerned.”

The question that requires to be resolved in interpreting section 193(b), therefore, is whether disciplinary processes, which aim to maintain and enforce discipline in the Police Force, are interchangeable with the ordinary criminal proceedings instituted by the State for the purpose of maintenance of law and order, or are the two parallel processes with different objectives and which are not meant to meet?

The test that has been developed in international law has been applied in our jurisdiction to one extent or other in the various matters that have been decided by the superior courts and is thus part of our case law.

See Bhatti & Anor v Chief Immigration Officer & Anor 2001 (2) ZLR 114 (H)…, and Kenderjian v Chief Immigration Officer 2000 (1) ZLR 697 (S)…, where issues of public safety and order, pursuance of legitimate aims authorised by the Constitution and reasonable justification in a democratic society where held to justify interference particularly with non-absolute rights.

Such application is predicated on the provisions of section 3(1)(c) of the Constitution which provides that fundamental human rights and freedoms are part of the founding principles and values of the State of Zimbabwe; and Chapter 4, Part 1-4 which codifies and domesticates, within the Zimbabwean context, fundamental human rights as enshrined in international instruments, including the duties and obligations relating to the enforcement of such rights.

(ii) The High Court Act

With regard to review, the High Court Act provides, in Part V, for review of decisions of subordinate courts and administrative authorities in line with the constitutional provisions. In that respect, section 26 echoes section 171(1)(b) of the Constitution, vesting the High Court, as it does, with extensive power to exercise its review function, while section 27 prescribes the grounds upon which the High Court may exercise such power. Sections 28 and 29 circumscribe the powers of the High Court on review. Sections 30 and 34 rhyme with section 171(d) of the Constitution in that the High Court will exercise appellate jurisdiction where an enactment has so provided.

(iii) The Police Act

Now, with respect to members of the police force, Part V of the Police Act provides, in section 29, that any member who “…, contravenes any provision of this Act or an order made thereunder, or who commits an offence specified in the Schedule, shall be guilty of an offence and liable to a fine not exceeding level ten or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.”

The Act goes on, in section 29A, to give jurisdiction to try any contraventions in terms of section 29 to the High Court, Magistrates Court, Board of Officers and a single trial officer. Further, it prescribes the limits of such jurisdiction, starting with the single trial officer dealing with minor infractions which punishment does not exceed 14 days imprisonment or a level two fine or both, with progressively more serious infractions being referred to the higher courts.

Section 31 provides for automatic review by the High Court of decisions of the Board of Officers where a sentence in excess of a level three fine or one month imprisonment is meted out, while section 33 grants appellate jurisdiction, to the High Court, against the decisions of the Board of Officers. A member arraigned before a Board of Officers has the option to elect to be tried by a magistrate (section 31), but no such right is granted to a member appearing before a single trial officer.

Section 34(3) provides for automatic review by the Commissioner General of all decisions of single trial officers, with power, in the interests of justice, to confirm, alter, quash, remit for fresh trial or with other instructions any such decision. Where the Commissioner General is of the view that the sentence was inadequate, the matter may be referred to a judge of the High Court to deal with as he deems fit.

Further, any member may appeal to the Commissioner General against the decision of the single trial officer - section 34(7). However, unless an appeal is noted, the decision of the single trial officer shall be executed forthwith - section 34(8).

Finally, the decision of a single trial officer shall not be regarded as a conviction for purposes of any other law - section 34(9). Section 34(9) of the Police Act provides as follows:

“(9) A member who is found guilty of a contravention of this Act by an officer shall not be regarded as having been convicted of an offence for the purpose of any other law.”

The import of this is to separate purely disciplinary proceedings emanating from single trial officers from criminal matters which consequences culminate in a criminal record.

Section 39 empowers recovery of any disciplinary penalties through stoppages of pay, while sections 40 and 41 allow the long arm of the law to reach a member who may have ceased to be a member not to escape the consequences of his infractions. Sections 48, 49 and 50 provides for purely administrative and managerial functions, to permit the Commissioner General to inquire into the suitability of a member to remain in the force, retain his rank, salary or seniority, etc; and these processes may be quite independent of any disciplinary processes. And, unlike disciplinary processes, appeals against these administrative and management decisions lie to the Police Service Commission (section 51).

In the instant case, the international principle of exhaustion of local remedies has been captured in such a localised law as the Police Act, Police regulations, and Standing Orders made thereunder requiring members of the police to undertake or refrain from undertaking, certain acts on pain of facing disciplinary or administrative processes peculiar to the police force.

(iv) The Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code)

In line with section 193 of the Constitution, section 278 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) provides for the relationship between criminal and disciplinary proceedings as follows:

“(1) In this section, 'disciplinary proceedings' means any proceedings for misconduct or breach of discipline against a public officer or member of a disciplined force or a statutory professional body, or against any other person for the discipline of whom provision is made by or under any enactment;

'disciplined force' means -

(a)…,.; or

(b) The Police Force; or

(c)….,.; or

(d)…,.

(2) A conviction or acquittal in respect of any crime shall not bar…, disciplinary proceedings in relation to any conduct constituting the crime at the instance of any person who has suffered loss or injury in consequence of the conduct or at the instance of the relevant disciplinary authority, as the case may be.

(3)…,. Disciplinary proceedings in relation to any conduct that constitutes a crime may, without prejudice to the prosecution of any criminal proceedings in respect of the same conduct, be instituted at any time before or after the commencement of such criminal proceedings.”

Legislation therefore has taken care to ensure the attainment of discipline in the “disciplined forces” outside the criminal processes.

(v) Interpretation of Statutes

With respect to the effect and interpretation of subsidiary legislation, the law is trite: anything contained in subsidiary legislation that is in conflict with or contradicts the enabling Act shall be void and of no effect. Consequently, any provision in the Police Standing Orders, including the current section 45.3 thereof, which is inconsistent with the Police Act is ultra vires and thus a null and void.

(vi) Consequence of noting an appeal or applying for review

Finally, the consequences of noting an appeal or applying for review are also trite. It is an established and general principle that once an appeal is noted; all proceedings are automatically stayed pending the determination of the appeal, unless leave is obtained to proceed with any consequence of the decision appealed against.

With regard to reviews, the converse is true: unless an order of stay is granted on good cause shown, the consequences of a decision are not automatically stayed pending review.

ANALYSIS

(i) Whether or not there is a review that lies to the High Court against the decision of the single officer after appeal to the Commissioner General of Police

The respondents have suggested that because the High Court has wide powers of review, even where a complainant appeals to the Commissioner General, such complainant is entitled to come back to the High Court to seek review of the decision of the single trial officer should he be unhappy with the decision of the Commissioner General on appeal.

Certainly, I agree that the wide powers of the High Court, as prescribed by law, seem to allow a complainant to seek a review of the decision of a single trial officer at the High Court. However, this right to approach the High Court directly remains, in my view, subject to the principle of exhaustion of local remedies. In this case, these local remedies include the Commissioner General's automatic review of all decisions of single trial officers and the right to appeal the decisions of single trial officers to the Commissioner General.

It defies logic, that in creating the right to approach the High Court, the legislature intended a party to willy nilly forego elaborately provided local remedies and approach the High Court in circumstances where there is no challenge as to the accessibility and availability of those local remedies. It could not have possibly been the intention of the legislature that a party should ignore the principle that a local remedy which is available, effective, sufficient and not unduly prolonged should be overlooked perhaps because it is unattractive, inconvenient or does not produce a favourable result, and, in the process, create an onerous burden on the High Court.

Further, despite the respondents' concession in that regard, I cannot agree that where a complainant has opted to appeal to the Commissioner General, against the decision of the single trial officer, he can bring the matter back again to seek a review of such a decision where his appeal is unsuccessful. The absurdity of such a course is best illustrated by the argument that a person who has appealed to the Magistrate Court against the decision of a Community Court Presiding Officer can, upon losing the appeal, subsequently approach the High Court to review the decision of the Community Court Presiding Officer. Such a procedure is not provided by law.

In casu, the logical procedure which is provided by law is to seek a review of the decision of the Commissioner General which he will have rendered after appeal from the single trial officer. Such a limitation to the right of review of decisions of single trial officers is sanctioned by a principle of law of general application: that there must be an end to litigation. This principle is in accordance with the Constitution in so far as it allows for smooth, quick and effective administration of justice, which is a legitimate aim necessary in a democratic society. It is certainly not in the interests of the administration of justice to allow for a back and forth process that has the effect of clogging the system and creating blockages to effective justice delivery.

In any event, a complainant will not be without a remedy should he not be able to seek a review of a single trial officer's proceedings after appealing to the Commissioner General as a review is still available as against the decision of the Commissioner General. And, in reviewing the decision of the Commissioner General, of necessity, the High Court judge will have access to the decision of the single trial officer to decide whether or not the Commissioner General arrived at a proper decision. Therefore, the right to review, in the circumstances, is legitimately interfered with in accordance with a principle of law. Such interference is necessary for the good administration of justice in a democratic society and is proportional as the applicant is not left without a remedy.

(ii) Whether or not a review lies against the decision of the Commissioner General of Police

A consequential issue arising from the applicant's right of review of the decision of a single trial officer is his right to a review of the appellate decision of the Commissioner General.

In casu, the applicant unsuccessfully appealed to the Commissioner General and then turned round and sought a review of the decision of the single trial officer. The respondents having conceded, improperly in my view, that a review of the single officer's decision was appropriate, it is necessary to deal with whether the review ought not to have lied against the decision of the Commissioner General.

Applying the law and the test distilled from rights jurisprudence, as discussed above, it seems to me clear that the right of review against the decision of the Commissioner General does exist and is prescribed by law. Section 171(1)(b) of the Constitution as read with section 26 of the High Court Act clothes the High Court with unlimited powers of review.

On the circumstances of this case, the complainant was not prevented from enjoying this right of review. The difficulty was that in HC5385/17, the applicant sought to review the decision of the single trial officer in circumstances where he had appealed such decision to the Commissioner General of Police and was awaiting the outcome of the appeal. Certainly, this conduct cannot be acceptable as it amounts to double dipping.

It is trite that a party is not entitled to reprobate and approbate. He must select the option which best protects his interests and pursue it. The applicant ought to have decided whether he wanted to seek a review, by the High Court, of the decision of the single trial officer or to appeal that decision to the Commissioner General and pursued the one option to its logical conclusion.

And since he had opted to appeal, the appellant ought to have abided with the principle of exhaustion of local remedies and awaited the decision on appeal before seeking a review of that decision. It cannot be proper for the High Court to review the proceedings of a single trial officer after the member has exercised his right to appeal to the Commissioner General and has not withdrawn or abandoned such appeal. In the circumstances, the applicant's right to administrative justice is adequately protected and it is not necessary, in this respect, to answer the rest of the questions in the test.

(iii) Whether or not when the applicant files either a review application against the decision of the Commissioner General of Police, the determination to detain a member by the Commissioner General of Police should be stayed pending the outcome of the review

No law exists creating a right to stay of proceedings pending review. The normal consequence of an application for review is not to stay any proceedings pending the determination on review but that a court will only stay proceedings on good cause shown. Therefore, in the absence of a specific provision in the Police Act to the contrary, the determination by the Commissioner General to detain a member shall not be automatically stayed pending the outcome of any review processes. Consequently, here too, the applicant fails at the first hurdle.

(iv) Whether or not a Board of Suitability should be stayed pending review against the decision of the Commissioner General of Police

The question whether or not any proceedings (disciplinary or administrative) ought to be automatically stayed pending review has already been dealt with under sub-heading (iii) above - no law provides for any right to stay of anything pending review. Any party requiring stay will have to apply, subject to the principle of exhaustion of local remedies, and show good cause why that should be granted. A judge is at liberty to decide, on the merits and the circumstances of each case, whether, having regard to the implications for good and effective management, to interfere with the normal administrative function of an authority.

After all, it is not the function of the court to make an institution ungovernable by excessive and intrusive incursion into matters under the purview of administrative authorities. A Board of Suitability is a management tool designed to assist the Commissioner General to manage the service in accordance with necessary discipline. It therefore facilitates the removal of medically unfit, lazy, incompetent or unqualified members from the force, including those found to be unsuitable under disciplinary processes. Any person aggrieved by the outcome of a Board of Suitability is entitled to appeal to the Police Service Commission in terms of section 51, and, in those circumstances, the outcome of the Board is stayed pending such appeal. However, to seek to stop the convening of a Board of Suitability is tantamount to interfering with the local remedies available to a member consequent upon the management and administrative function of the Commissioner General.

The courts have always been loathe to substitute themselves for administrative authorities or arrogate to themselves management functions of authorities mandated with the power to run institutions, preferring to maintain their role of judicially supervising the manner in which authorities conduct themselves.

Specifically, the courts have refrained from interfering with management processes and have established clear principles as to when to do so. See Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15…,. See also Arafas Mtausi Gwaradzimba N.O. v Gurta A.G. SC10-15…,.

This is a position which is not peculiar to this jurisdiction only. See Premier Mpumalanga v Association of Estate Agents School 1999 (2) (CC) 113…,. See also, Chief Constable of the North of Wales Police v Evans [1982] 3 ALL ER 141 (HL)…,.

In my view, the case law thus supports the proposition that the courts expect administrative authorities to carry out their normal function, legally, rationally, properly and justifiably and only interfere where such function has been carried out in a biased and/or prejudicial manner in circumstances where the court is in as good a position as the authority to substitute its decision. Prior to the authority carrying out its function, the courts will only interfere where there is likely to be undue delay or the authority will reach a foregone conclusion. This, in our view, is also in line with the doctrine of margin of appreciation. Hence, courts have generally restricted themselves to reviewing the manner in which administrative/management processes have been conducted, rather than stopping the processes altogether.

I see no reason to depart from this time honoured and reasonable stance, for if it is the function of the court to scrutinize the decisions of an administrator (BAXTER's Administrative Law…,.). It makes no sense for the court to stop such administrator from making those decisions.

I therefore find that the authorities quoted by the applicant to support the proposition that courts should stop Boards of Suitability from being conducted in order not to render orders of the court less effective are misplaced. A Board of Suitability will not render the subsequent order of the court less effective, as the proceedings of such a Board remains subject to scrutiny by the court for its legality, procedural propriety, justification, and rationale.

(v) Whether or not there is a right of appeal to the High Court against the decisions of the single officer in Police disciplinary matters

The law does not grant jurisdiction to the High Court to hear appeals from decisions of the single trial officers. Section 34(7) of the Police Act [Chapter 11:10] only provides for the appellate jurisdiction of the Commissioner General from decisions of single trial officers.

The applicant argues that, because the right of appeal to the High Court is not specifically prohibited, in circumstances where section 70(5) of the Constitution provides that any person who has been convicted of an offence has the right to appeal to a higher court, this means that police members convicted by single trial officers are entitled to appeal to the High Court in terms of section 70(5). For this proposition, he relied on some decisions of this court which found the Police Act to be inconsistent with section 70(5) of the Constitution. See Sadengu v Board President & Anor HH712-15.

It is my view that the applicant's position is a mis-interpretation and mis-application of the law.

(i) Firstly, reliance on Rateiwa v Kambuzuma Housing Co-op & Anor 2007 (1) ZLR (H)…, for his proposition is misplaced. That case is distinguishable because GOWORA J…, was speaking to the inherent jurisdiction of the High Court as a court of first instance, not to its appellate jurisdiction, which is not inherent.

(ii) Secondly, section 70(5) of the Constitution does not provide for the manner in which to bring an appeal to the High Court, nor does it provide for the power of the High Court to deal with any appeal. It only creates a general right of appeal and provides that the right to appeal provided therein is subject to any limitations prescribed by law.

Section 171(1)(d) of the Constitution goes on to explain and prescribe those limits to the right enshrined in section 70(5) by providing that the appellate jurisdiction of the High Court must be prescribed by an Act of Parliament. Thus, section 70 and section 171 of the Constitution are not mutually exclusive, but complement each other. Section 70 provides the broad framework upon which the right to appeal is founded, while section 171 distils the broad rights in section 70 to only those instances where an Act of Parliament then ascribes specific appellate jurisdiction.

Nor is Sadengu v Board President & Anor HH712-15 helpful to the applicant's cause as section 70(5) of the Constitution merely creates a right but does not prescribe how that right is to be accessed. Section 171 of the Constitution does so, by providing that an Act of Parliament will delineate the appellate jurisdiction of the High Court. As a consequence, the Legislature, in enacting the Police Act could have prescribed the appellate jurisdiction of the High Court for police disciplinary matters emanating from single trial officers, but deliberately refrained from doing so. While the High Court Act does prescribe for the appellate jurisdiction of the court, in section 30 and section 34, it goes on to limit such jurisdiction to the same extent as section 171(1)(d) of the Constitution: that such appellate jurisdiction will only be exercised as provided for by an enactment, or by the High Court Act itself.

Therefore, the provisions with regard to the appellate jurisdiction of the High Court vis-à-vis trials from single trial officers must be read in pyramidal fashion, starting from the wide base: section 70, as limited by section 171 of the Constitution, and, further limited by section 30 and section 34 of the High Court Act, and, finally, section 34(7) of the Police Act.

Applying the test elucidated at page 9-11 of this judgment therefore, while the right to appeal exists in general terms, as provided for in the Constitution, the complainant in this case is prevented from enjoying this right. Such interference is prescribed by law, viz: section 171 of the Constitution, section 30 and section 34 of the High Court Act and section 34(7) of the Police Act.

Such interference is compatible with constitutional and even international treaty obligations since the right is not absolute but is subject to any limitations prescribed by law.

In order to test whether the legal prescription for the interference is appropriate, it then becomes necessary to inquire whether such interference pursues a legitimate aim.

From the concession made by counsel for the applicant, single officer trials number in their thousands. He alone deals with at least 1,200 per year. He conceded that, were appeals to be allowed to the High Court from these single officer trials, the burden of the High Court would be untenable and interfere with swift and efficient dispensation of justice. He also conceded that the jurisdiction of single trial officers is limited to very minor and simple infractions which call for fast and streamlined procedures, the consequence of which are minor punishments not exceeding level 2 fines or 14 days imprisonment. Given that these disciplinary convictions and punishments do not count for purposes of any other law (section 34(9) of the Police Act [Chapter 11:10]) it is obvious therefore that limiting the right of appeal from single officer trials is both desirable and legitimate and is in the best interests of effective dispensation of justice.

The sheer numbers of the trials make it necessary in a democratic society to expeditiously deal with and finalise these minor matters, leaving the High Court to deal with weightier cases. In addition, the fact that there is a right of automatic review by, and appeal to, the Commissioner General, in circumstances where the member may also opt to seek direct review by the High Court, means that there is adequate proportionality between the interests of the member and the wider interests of justice. Further, in view of the fact that these single trial officer processes are aimed at promoting efficient and sound administration of a disciplined police force, it is not unreasonable to allow the authorities the margin of appreciation to enable the Commissioner General to manage his police force, moreso given that there is no individual excessive burden militating against the rights of the members.

Consequently, I find that the right to appeal is not violated as direct appeals from the single trial officer to the High Court would militate against an end to litigation. Further, the sheer volume of single officer trials would completely swamp the High Court were appeals therefrom to be referred to the Court as a matter of course. A filtering system, as is currently in place, is, therefore, necessarily desirable and legitimate in a democratic society.

(vi) Whether or not an appeal lies against the decision of the Commissioner General of Police

The Police Act does not provide for any right of appeal to the High Court against the decision of the Commissioner General, either sitting on review or appeal, of decisions of a single trial officer, or discharging his administrative function as the executive authority for the police force. Given the specific provisions of section 171 of the Constitution and section 30 and section 34 of the High Court Act, that any appellate jurisdiction must be specifically enacted, I cannot agree with counsel for the applicant that the absence of a specific bar against such appellate jurisdiction is tantamount to a right of appeal.

Rights are not endowed by default but must be specifically created. Therefore, any claim that there was an interference with the right to appeal fails at the first hurdle: the right does not exist as there is no law creating any appellate jurisdiction from decisions of the Commissioner General in disciplinary matters. Thus, following the logical reasoning on the preceding sub-heading, the decision of the Commissioner General is final, and can only be set aside by the High Court on review.

I will not delve into whether the administrative decisions of the Commissioner General are appealable in terms of Administrative Law as that is not a question under the purview of the court in casu. Suffice it to say that section 51 of the Police Act does provide that appeals from the administrative decisions of the Commissioner General lie to the Police Service Commission, not to the High Court….,.

Findings

In conclusion, and following on from the above discourse, I summarise my findings with regard to the law pertaining to these issues as follows:

(a) A general review lies directly to the High Court against the decision of a single trial officer, only where a complainant opts out of appealing to or seeking a review by the Commissioner General of Police, and subject to the principle of exhaustion of local remedies.

(b) A review to the High Court generally lies against the decision of the Commissioner General of Police.

(c) The determination to detain a member by the Commissioner General of Police shall not be automatically stayed pending the outcome of review proceedings in terms of paragraph (a) and (b) above.

(d) A Board of Suitability, being a management function of the Police authorities, shall not be automatically stayed pending review of the decision of the Commissioner General of Police.

(e) There is no right of appeal to the High Court against the decisions of the single officer in police disciplinary matters.

(f) There is no general right of appeal to the High Court against any decision of the Commissioner General of Police.

(g) The question whether a determination to detain a member by the Commissioner General of Police shall be automatically stayed pending the outcome of appeal against the decision of the Commissioner General of Police does not arise in accordance with the findings in paragraph (f) above.

(h) The determination to detain a member by the Commissioner General of Police, after the noting of an appeal, shall be automatically stayed pending the outcome of appeal made in terms of section 33 of the Police Act.

(i) A Board of Suitability, being a management function of the police authorities, shall not be automatically stayed pending appeal against the decision of the Commissioner General of Police.

(j) There is no double jeopardy, and dual prosecution is permissible in accordance with section 70(1)(m) of the Constitution, with respect to disciplinary proceedings in terms of the Police Act and prosecution in terms of the Criminal Law (Codification and Reform) Act.

(k) A member who has a pending criminal case is not entitled to full terminal benefits before the finalisation of the criminal case.

In casu, the applicant having elected to appeal to the Commissioner General of Police against the decision of the single trial officer, he cannot be allowed a second bite of the cherry, by now seeking a review at the High Court of the decision of the single trial officer. The proper course should have been to seek a review of the decision of the Commissioner General in dismissing his appeal.

Ergo, the legitimate consequence of the dismissal of his appeal is that the Commissioner General is now free to order his detention. The applicant cannot now see seek to stay such detention as he has not questioned the decision of the Commissioner General. In the circumstances, I find that his application cannot stand….,.

CONSEQUENTLY, IT IS ORDERED THAT;

1. The urgent chamber application is dismissed.

This is an appeal against the whole decision of the Labour Court confirming the dismissal of the appellant from the respondent's employ.

Factual Background

The appellant was employed by the respondent as a Blood Procurement Manager from October 2001 to April 2012 when he was dismissed. Sometime in 2011, anonymous emails containing divisive and damning allegations against certain staff members as well as his superior, the Chief Executive Officer of the respondent, were circulated and sent to various employees of the respondent. The respondent conducted some investigations and concluded that the appellant was the author of the anonymous e-mails.

Consequently, in October 2011, the appellant was charged in terms of the “National Blood Service Zimbabwe Code of Conduct” (sic), (“the Code”), with the following acts of misconduct:

1. Section 3(c)(vi): Writing and publishing anonymous letters which damaged the reputation of his superior or colleague.

2. Section 4(a)(ii): Deliberately giving untrue and misleading information about his superior concerning his professional behavior by alleging that he distributed diseased blood.

3. Section 4(a)(vii): Accusing his superior of nepotism in the anonymous letters he published.

A written invitation to the appellant to respond to the allegations met no response. On 16 November 2011 he was suspended from duty with no salary.

A disciplinary hearing was then conducted on 13 April 2012. Despite having been properly served with the notice of hearing, the appellant did not attend the hearing.

After making its deliberations on the evidence and papers that were before it, the disciplinary committee found the appellant guilty of all 3 charges. The appellant was invited to make submissions in mitigation before the imposition of a penalty. The invitation met no response. Eventually, on 26 April 2012, the appellant was advised of the penalty imposed on him. On the first charge a final written warning was found to be the appropriate penalty. On the second charge the penalty was dismissal. On the third charge the penalty was also dismissal.

On the 30^th of April 2012, the appellant lodged an internal appeal to the Finance and Administration Manager in terms of the Code. The Manager dismissed the appeal, in a reasoned ruling, for lack of merit.

Aggrieved thereby, and in terms of the same Code, the appellant appealed to the Board Chairman. The appellant then also requested the Board Chairman to recuse himself from the matter. The basis of the application for recusal was that the Board Chairman had previously been involved in the matter leading up to the appellant being charged and subsequently dismissed. The Board Chairman recused himself from the matter and indicated that “(T)he appeal would be referred to the Labour Court in accordance with the provisions of the Code of Conduct.” However, this did not happen.

In February 2013, the appellant eventually referred the matter to a Labour Officer in terms of the Labour Act. The parties did not settle at conciliation, and, subsequently, the matter was referred to arbitration.

On 30 July 2013, the Arbitrator ordered the respondent to constitute an Appeals Committee to hear and determine the appellant's appeal against the decision of the Finance and Administration Manager which had confirmed the appellant's dismissal from employment as decided by the disciplinary committee.

The Appeals Committee was set up, and, on 5 August 2013, it heard the appellant's appeal and came to the conclusion that the appellant's appeal lacked merit and it therefore dismissed it. It was against that decision of the Appeals Committee that the appellant noted an appeal to the court a quo.

The appellant raised seven grounds of appeal in the court a quo. Four of the grounds related to the composition and appointment of the disciplinary committee. Although there was no Appeals Officer involved at any stage in the matter, curiously, one of the appellant's grounds of appeal was couched in the following terms:

“The Appeals Committee erred at law and misdirected itself in upholding the decision of the Appeals Officer and Disciplinary Committee despite clear evidence of bias in both the Appeals Officer and the Disciplinary Committee.” (sic)

From a reading of the papers, it can safely be assumed that the reference to an “Appeals Officer” ought in fact to be a reference to the Appeals Committee. This is so because it is the Appeals Committee which heard the appellant's appeal against the decision of the Finance and Administration Manager to whom he had appealed against the decision of the disciplinary committee.

The appellant also challenged the determination made by the Appeals Committee which upheld the decision of the disciplinary committee to the effect that he was not entitled to legal representation in terms of the Code of Conduct.

In the rest of his grounds of appeal, the appellant challenged the finding that the information which was contained in the emails was untrue, erroneous or misleading and that it had the effect of damaging his superior's or anyone's reputation.

He also sought to challenge the interpretation given by the disciplinary committee to section 4(a)(vii) of the Code of Conduct which interpretation was confirmed by the Appeals Committee thereby leading to the upholding of his conviction.

In terms of the Code, the following is a dismissible misconduct:

“Any other act of prejudice towards the organisation, fellow members of staff, or members of the public, such as racism, tribalism, nepotism, sexism and regionalism.”

The appellant's contention in this regard is that on a proper interpretation of the provision he ought not to have been charged. Rather, it is the person that he accused of practicing nepotism that ought to have been charged with the misconduct….,.

The court a quo found that the appellant had admitted to publishing the anonymous emails, and, in so doing, meant to damage the name of a superior or colleague. The court further held that the interpretation that had been attributed to section 4(a)(vii) was correct as it was clear that the listed items in the provision were not exhaustive. The court thus concluded that the appellant's appeal lacked merit and dismissed it.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by these findings and conclusion of the court a quo, hence the present appeal.

The appellant's grounds of appeal are crafted as follows:

1. The court a quo seriously misdirected itself on the facts when it concluded that “the challenged grounds for review relate to the composition of the Appeals Committee.” This amounts to a misdirection in law in that it led the court to follow a wrong path and reach a decision which is bad at law. (sic)

2. The court a quo misdirected itself at law when it focused on the improper appointment of the disciplinary committee, per se, rather than determining the substantive correctness of the decision of the Appeals Committee whose decision was being appealed against.

3. The court a quo misdirected itself in dismissing grounds of appeal one, two and three as grounds for review despite the clear and unambiguous language to the effect that it was the decision of the Appeals Committee which was being challenged.

4. The court a quo grossly misdirected itself when it ruled that “it is not in issue that the appellant was the author of the emails. This was admitted...,.” Nothing in the submissions placed before her supported this conclusion. This error of fact is so fundamental that it amounts to a misdirection at law. (sic)

5. The court a quo grossly erred and misdirected itself when it concluded that the appellant ought to have established the truthfulness of what he allegedly published. This would be tantamount to turning the established principle that “he who alleges must prove” on its head. It is a misdirection at law. (sic)

6. The court a quo grossly erred and misdirected itself in its interpretation of section 4(a)(vii) of the Code of Conduct and failing to appreciate that the charge would only stick if the alleged offender is the one committing the act of prejudice.

The appellant's prayer is for his appeal to be allowed and for his reinstatement without loss of salary and benefits with an alternative of payment of damages.

In dealing with the appeal before it, the court a quo struck out some of the appellant's grounds of appeal on the basis that they were grounds for review and not grounds of appeal. The grounds challenged the composition and appointment of the committee and they also alleged bias.

It is the striking out of those grounds which the appellant is now challenging in his grounds of appeal numbers 1, 2 and 3.

It is common cause that the appellant did not attend the disciplinary hearing. For that reason, his decision to challenge the composition and appointment of the committee at the appeal stage was no longer available to him. Such objections could only have been raised at the disciplinary hearing which he opted not to attend.

The principle was explained in clear terms in the case of Moyo v Rural Electrification Agency SC04-14:

“In our view, the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings. He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing. In these circumstances, we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”

The effect therefore is that the issues raised by grounds 1, 2 and 3 fell away the moment the appellant absented himself from the disciplinary proceedings. At the hearing of this appeal, the appellant conceded this point and abandoned the said grounds 1, 2 and 3. The concession was properly made.

ISSUES RAISED FOR DETERMINATION

The remaining grounds of appeal raise two issues, that is;

(i) Whether or not the court a quo made findings supported by the evidence on record; and

(ii) Whether or not the court a quo wrongly interpreted section 4(a)(vii) of the respondent's Code of Conduct.

I deal with each of these in turn.

1. Whether or not the court a quo made findings supported by evidence on record

The court a quo found that it was not in issue that the appellant authored the e-mails because he had admitted doing so.

The appellant contends that nowhere in the record did he admit to having published the anonymous emails. He contends that all that is on record are allegations by the respondent that the anonymous e-mails were authored by him. Furthermore, that he had denied the allegations throughout. It was also argued that nothing proving the allegations was placed before the court a quo except for a bare averment by the respondent in its papers that, on 22 November 2011, the appellant deposed to an affidavit, which affidavit was never placed before the court, admitting to authoring the emails.

However, a perusal of the record will show why the finding of the court a quo is supported by the evidence.

At page 150 of the record is a document marked as “Appendix 22” and headed “Charges proffered against Mr. Emmanuel Masvikeni as per the Code of Conduct of the National Blood Service Zimbabwe”. It lists as evidence of the misconduct in terms of section 3(c)(vi) emails dated 3 and 7 December 2010 which were sent at 11:52 and 15:27, respectively, to undisclosed recipients. It also lists e-mails dated 31 July 2011 sent at 22:46 to undisclosed recipients and it also states that: “(I)n his affidavit dated 22 November 2011, Mr Masvikeni admits to sending the anonymous emails.” The affidavit is not part of the record before this Court thereby limiting the extent to which the reference to it could assist in the determination of this matter.

More importantly though, on 5 August 2013, the following questions were asked by the Board Chairman (TC) and answers thereto were given by the appellant's legal practitioner (MN) at the Appeals Committee hearing:

“TC: Can I continue to ask? We were talking about the anonymous emails and letters. You said you were to agree with you on the issues. (sic) He is agreeing that he circulated the emails?

MN: Yes.

TC: Ok, and with all its contents. It was not tampered.

MN: We don't know the information that was contained. Those emails were never availed to us.”…,.

Further, the following exchanges also took place between the appellant's legal practitioner, MN and Board members, JN and NM:

“TC: I want to work with the numbers there. Can I have the email he sent talking about the release of blood. The circulation of the anonymous mail which talks of the release of blood. (sic)

NM: NBSZ Bulawayo branch sold an estimated 200 units of blood…,.

NM: Well, I can tell you that from the other matter that I have for him he has clearly distanced himself from that particular email.

JN: Mr Chairman, I am really confused. At one time you saying he did say that there was…, now you are saying he is distancing himself from this email.

MN: He never mentioned quantities in his correspondence so whoever put the quantities is something different. (sic)

JN: You are querying the quantity and not the contents?”

Subsequently, the following exchange ensued:

“TC: Any other questions? I was putting down my questions. I just want to find out so that when we make a decision we have enough complete information. Does he agree he is the author of emails? (sic)

MN: There are some contents that we are disputing honestly.

NM: Did he circulate some emails?

MN: He did circulate some emails but there are others that he did not circulate he is alleged. You know what Mr Chairman the difficulty we have is if we give the blanket an unqualified response (sic) you may interpret it otherwise we need to qualify our response. Specifically he never mentioned the quantities…,.

NM: Does he have the emails he circulated? So that we can at least have the basis of saying these are the ones I circulated and these I did not.

MN: Unfortunately we do not have the emails. The other computer crashed. Some of the emails were wanted by these guys when they instituted some mysterious criminal prosecution so his two laptops are actually captured as exhibits as we speak right now. There is a possibility that maybe or maybe not they may be on the hard drive of those captured computers. …,.

MN:…,. What we are saying is that there are some infractions into his emails some people were employed to hack into his emails so he had to clean up his email accounts and discontinue some of them.

TC: Who were employed?

MN: By people whose names we are going to reserve.”

Without quoting the whole text of the ensuing exchanges, suffice to quote the following answer given by the appellant's legal representative to a question from a Board member:

“…, all these acts of misconduct he was being victimised because he raised a red flag and the audit report confirmed the issues.” (sic)

In light of this exchange, on a balance of probabilities, the appellant admitted, through his legal practitioner, that he is the one who published the emails in issue. He seems to prevaricate and avoid giving simple or straight forward answers. He also purports to take issue with some of the content of the emails and seeks to create an impression that his email accounts were hacked and the hackers added some content relating to quantities, into emails that he authored, which content was not authored by him thereby producing the objectionable overall content. At the same time the appellant also seems to justify his authoring of the emails on the basis that the content thereof or the issues raised therein are after all true.

In these circumstances, the finding of the court a quo that the appellant admitted to authoring the emails is a reasonable finding in the circumstances. This is particularly so when consideration is given to the fact that the applicable standard of proof is “a balance of probabilities.”

The court a quo thus made findings that are supported by the evidence on record.

2. Whether or not the court a quo wrongly interpreted section 4(a)(vii) of the respondent's Code of Conduct

Section 4(a)(vii) of the National Blood Service Zimbabwe Code of Conduct reads as follows;

“4 DISHONESTY, THEFT, FRAUD AND RELATED OFFENCES

(a) Dishonesty

(vii) Any other act of prejudice towards the organisation, fellow members of staff, or members of the public, such as racism, tribalism, nepotism, sexism, regionalism.”

It also states that the penalty for a first offence is dismissal.

The court a quo held at page 3 of its judgment:

“It is not in issue whether or not the appellant was the author of the emails. This was admitted. What is in issue is whether or not the appellant, in publishing the emails, meant or intended to damage the reputation of his superior or colleague, whether or not the information was untrue, erroneous or misleading, and, finally, what the correct meaning of section 4(a)(vii) was and whether or not the Appeals Committee misdirected itself by failing to appreciate the true meaning of the section.”

The court a quo continued, at page 5 of its judgement, as follows:

“The section refers to any other act or conduct such as nepotism, sexism, etc. The examples given such as nepotism and sexism cannot be taken to have been exhaustive. A literal reading of the section only shows that the items listed were only examples and not meant to be exhaustive. The Appeals Committee did not err.”

And further:

“On the merits of this case..., the Appeals Committee did not err in finding that the appellant had published information that he failed to show was correct and truthful. He must have meant to damage the name of either a superior or a colleague. He was therefore guilty on the merits of the case.”

The appellant's contention is that this interpretation of the provision by the court a quo was wrong in that the court failed to appreciate that if the literal rule of interpretation was applied, the charge would only be valid if the appellant was the one accused of prejudicial conduct. In casu, the appellant contends that he was rather being charged with the misconduct of accusing his superior of practising nepotism. He contends that that was a result of an improper interpretation of the section. His conduct, in his view, is above board and did not justify the laying of the charge against him as he was not the one practising nepotism.

The respondent however argues that the manner in which section 4(a)(vii) is crafted cannot be deemed to be exhaustive because prejudicial acts are not limited to those that are specifically mentioned. Any other acts which can be shown to be prejudicial also fall under the provision.

A close reading of the provision shows that it incorporates the misconduct that the appellant was charged with. The use of the words 'any other act of prejudice' and the words 'such as', is an indication that the prejudicial acts which any person may be charged with under the provision are not limited to the ones that are specifically mentioned. Once this is accepted, the conduct of the appellant, in publishing untrue and misleading material meant to damage the name of the Chief Executive Officer, qualifies as “any other act” which is prejudicial to a fellow member of staff. The section proscribes any other act of prejudice. The appellant's conduct does fall into this category.

It is for the above reasons that I find that the interpretation given to the provision by the court a quo was correct.

Accordingly, I hold that this appeal lacks merit and must be dismissed….,.

Accordingly, it is ordered that:

The appeal be and is hereby dismissed with costs.

This is an appeal against the entire judgment of the Labour Court dismissing the appellant's appeal against a decision of the Grievance and Disciplinary Committee of the National Employment Council for the Tobacco Industry (“the NEC Grievance and Disciplinary Committee”) which found that the appellant had failed to prove a prima facie case against the respondent.

FACTUAL BACKGROUND

The appellant, British American Tobacco Zimbabwe, is a company registered in terms of the laws of Zimbabwe. The respondent was employed by the appellant as a Trade Marketing representative.

The respondent was charged with an act of misconduct which was couched in the following terms:

“Alleged Act of Misconduct: Dishonesty, theft, fraud and related matters Violation of Clause (d) defined as;

Theft, or abetting theft, fraud or embezzlement or extortion or corruption and bribery:

Charges against you are emanating from that on 31^st May 2012 you allegedly withdrew US$2,605= from British American Tobacco Zimbabwe's (BAT Zimbabwe) account and converted this amount to your own use.”

The charge arose after it was discovered that there were two withdrawals of an amount of USD2,605= from the appellant's Standard Chartered Bank account on two occasions, namely, 18 May 2012 and on 31 May 2012 using one withdrawal instruction. The withdrawal of 18 May 2012 was authorised and was made by the respondent. The withdrawal of 31 May 2012 was un-authorised and was deemed fraudulent as the instruction used on 18 May 2012 was the same one which was used again to withdraw money on 31 May 2012. On the face of it, the latter withdrawal was also made by the respondent.

The charges were laid almost a year later, on 29 July 2013 and the respondent was suspended from work with full pay and benefits in terms of the applicable Code of Conduct, being the Collective Bargaining Agreement: Tobacco Industry (Tobacco Industry Code of Conduct, SI 322/96).

A disciplinary hearing was held and the Disciplinary Committee found the respondent guilty as charged on the basis of a forensic report by a forensic scientist, who, after analysing several samples of the respondent's signature, concluded that the signature on 31 May withdrawal slip was consistent with the respondent's standard signature. Consequently, the respondent was dismissed from employment with effect from 30 August 2013, the date on which the disciplinary committee made the decision.

The respondent appealed to the Works Council against the dismissal. The appeal was heard on 24 September 2013 and the proceedings were adjourned to allow the panel to:

(a) Obtain the original withdrawal documents;

(b) Get an explanation from the Bank on the processing of a withdrawal slip;

(c) Get confirmation from the Bank whether video evidence was still available; and

(d) Seek clarification on issues raised by the Mutare branch manager during the initial hearing.

However, without obtaining and considering the documents and evidence it had hoped to get from the Bank, on 25 November 2013, the Works Council made and availed its decision upholding the dismissal penalty by the Disciplinary Committee.

Aggrieved by the decision of the Works Council, the respondent further appealed to the NEC Grievance and Disciplinary Committee which upheld his appeal and set aside the order by the Works Council. The NEC Grievance and Disciplinary Committee's reasoning in arriving at this decision was that the only evidence which the appellant had relied on, namely, the handwriting expert's report, was unreliable as it was based on photocopies which do not clearly show some of the features and that therefore the appellant had failed to prove its case against the respondent.

Further, the NEC Grievance and Disciplinary Committee found that the Bank was not co-operative as it failed to provide information which would have assisted the committee in its determination of the guilt of the respondent or otherwise. This information included the original withdrawal slip, the relevant video footage and an explanation of how withdrawal slips are processed. In light of the inconclusive handwriting report and the missing information which the Bank was reluctant to supply, the NEC Committee concluded that, whilst the respondent's connivance with the Bank could not be ruled out, on the proven facts and available evidence, the appellant had failed to prove the respondent's guilt on a balance of probabilities.

Aggrieved by the decision of the NEC Grievance and Disciplinary Committee, the appellant noted an appeal to the Labour Court.

The appellant's grounds before that court were essentially that the NEC Committee had erred at law and misdirected itself in a number of respects;

(i) It had erred and misdirected itself in holding that the appellant had failed to substantiate its claim when it found that connivance with the Bank could not be ruled out;

(ii) In disregarding the forensic report by the handwriting expert;

(iii) In ignoring the respondent's identification details which were affixed on the withdrawal slip; and

(iv) In holding that the fraudulent transaction had been committed by a member of the Bank.

The court a quo upheld the decision of the NEC Grievance and Disciplinary Committee. It reasoned that the withdrawal slip of 31 May 2012 was effected at 0800 hours, a time when the doors of the Bank get opened to the public and that there was no evidence that was led to show that the respondent was already in the Bank at that time. Further, it found that the forensic report relied upon was based on the examination of photocopies and not the original documents which were kept at the Bank. Consequently, the court a quo concluded that the evidence on record pointed rather to the involvement of the Bank's personnel and not that of the respondent. The appeal was thus dismissed.

BASIS OF PRESENT APPEAL

Aggrieved by the court a quo's decision, the appellant has appealed to this Court on the following grounds:

1. The court a quo erred and misdirected itself in failing to find that sufficient evidence, including expert forensic evidence and facts had been established linking the respondent to commission of the offences charged under clause (d) of S.I.322 of 1996.

2. The court a quo further erred and misdirected itself in failing to find that, in any event, sufficient evidence had been led to establish the respondent's connivance in the commission of the offences charged under clause (d) of S.I.322 of 1996.

3. The court a quo further erred and misdirected itself in rejecting expert evidence pointing to the respondent's guilt and connivance in the commission of the offence charged under clause (d) of S.I.322 of 1996.

4. The court a quo consequently erred and misdirected itself in failing to find that the respondent's guilt had been established, and, consequently, his dismissal was lawful.

THE ISSUE

From these grounds of appeal, and the facts above, the only issue for determination is whether or not there was sufficient evidence in the record to link the respondent to the commission of the offence.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

The submission by counsel for the appellant, in both his written and oral submissions, is that the appellant managed to prove, on a balance of probabilities, that the fraudulent withdrawal of its funds, on 31 May 2012, was made in the respondent's name and on his signature; that the withdrawal instruction bore the respondent's identity details, all of which aspects were confirmed by the handwriting expert's report which concluded that the signature on the withdrawal slips matched that of the respondent.

Consequently, the appellant argued, the respondent was guilty of the offence charged and the NEC Grievance and Disciplinary Committee had therefore wrongly found him not guilty.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the respondent argued that the appellant failed to prove, on a balance of probabilities, that the respondent had committed the offence. He argued that the respondent could not have signed the withdrawal slip of 31 May 2012 because he could not have been in the Bank before the bank's opening time for him to have been served at 8.00am and that therefore the withdrawal could only have been done by a staff member of the Bank.

He further argued that the handwriting expert's report was unreliable and inconclusive because the expert relied on photocopies of the withdrawal slips in assessing the signature. To show the unreliability of the photocopies, the respondent pointed out the fact that the expert missed the variation between the forged signature on the photocopy of 31 May 2012 withdrawal slip which ended with two dots and the appellant's standard signature which had none.

ANALYSIS

The charges that were laid against the respondent arose after the withdrawal of 31 May 2012 because the withdrawal slip was in his name and was purportedly signed by him. In addition, his identification particulars were also recorded thereon. A perusal of the record shows that there was no direct evidence linking the respondent to the offence. The appellant relied on circumstantial evidence. The respondent, on his part, argued that the circumstantial evidence relied on did not prove that he was guilty.

In S v Tambo 2007 (2) ZLR 33 (H)…, (a criminal matter), the court held that;

“Circumstantial evidence can only be used to draw an inference if the inference sought to be drawn is the only reasonable one which can be drawn from those facts. It must be supported by rational reasoning and an analysis of the proved facts. The correct judicial assessment of evidence must be based on establishing proved facts, the proof of which must be a result of careful analysis of all the evidence led. The final result must be the product of an impartial and dispassionate assessment of all the evidence placed before the court.”…,.

However, in cases where not only one inference can be drawn, the court, in Ebrahim v Pittman NO 1995 (1) ZLR 176 (H)…, held that;

“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probabilities, select a conclusion which seems to be the more natural or plausible (in the sense of credible) conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.”…,.

In Miller v Minister of Pensions [1947] 2 All ER 372, 374, the concept of balancing probabilities was explained as follows;

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not.”…,.

In the book, The South African Law of Evidence, 4^th Edition, HOFFMAN and ZEFFERTT state as follows:

“In a civil case…, if the facts permit more than one inference, the court must select the most plausible. If this favours the plaintiff, he is entitled to judgment. If inferences in favour of both parties are equally possible, the plaintiff has not discharged the burden of proof…,.

Selke J held, in Govan v Skidmore, that the selected inference must 'by the balancing of probabilities be the more natural, or plausible, conclusion from among several conceivable ones.'”

The learned authors expound further and explain that the court may, however, find that the contentions of the party who has produced no evidence are the more probable. They state that what is weighed in the balance is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case.

In the text, Principles of Evidence, 4^th edition, the authors SCHWIKKARD and Van der MERWE similarly state:

“In civil proceedings, the inference sought to be drawn must also be consistent with all the proved facts, but it need not be the only reasonable inference: it is sufficient if it is the most probable inference. For example, in AA Onderlinge Assuransie-Assosiasie Bpk v De Beer (1982 (2) SA 603 (A)) it was held that a plaintiff who relies on circumstantial evidence does not have to prove that the inference which he asks the court to draw is the only reasonable inference: he will discharge his burden of proof if he can convince the court that the inference he advocates is the most readily apparent and acceptable inference from a number of possible inferences.”

In casu, the appellant having alleged that the respondent had committed an offence, had the burden to prove the allegation. It is trite in our law that he who alleges must prove.

It was the evidence of the appellant that the fraudulent withdrawal slip was processed at 0800 hours on 31 May 2012. The fraudulent withdrawal was made in the name of the respondent and an almost similar signature to his was affixed to the withdrawal slip. The withdrawal slip also bore the respondent's personal details.

It was on the strength of this that the charge was laid against the respondent leading to a disciplinary hearing, where a handwriting expert was called to examine the withdrawal slip to determine whether it was forged or it was indeed signed by the respondent.

The expert found that the signature on the withdrawal slip was the same as the appellant's standard signature. The expert's conclusion was based on an examination of photocopies and it was on this score that the respondent challenged the expert's finding as well as the fact that his true signature had no dots as reflected on the signature appearing on the photocopies.

The Bank was asked to assist in this matter but was not co-operative. At one point, it was asked to provide the original copies of the withdrawal slip; it was also asked to assist with an explanation of the processing of a withdrawal slip and to also produce a video footage placing the respondent at the Bank. The Bank did not come through on all these requests. The Bank's unco-operative attitude must be viewed against the backdrop of the allegation that the Bank knew or already had the respondent's details; that the withdrawal slip was, at all material times, in the possession of the Bank and was never accessed by the respondent; and that the same Bank Teller who had served the respondent and processed the withdrawal of 18 May 2012 was the same Teller who processed the same withdrawal on 31 May 2012.

The Bank's uncooperative attitude is not irrelevant in the determination of this appeal. The specific requests that were made of it were in relation to critically material aspects that would need to be adverted to in determining whether, on a balance of probabilities, the respondent could be said to be guilty. In the absence of such, the guilt of the respondent cannot be said to have been proved, even on a balance of probabilities. The finding of the NEC Grievance and Disciplinary Committee, which was confirmed by the court a quo, cannot, in the circumstances, be faulted.

The finding was that the probabilities pointed to the direct involvement of a Bank official in the dishonest activities, particularly because the transaction took place at 8.00am - the exact time that the Bank would have been opening its doors to the public. No evidence placed the respondent at or inside the Bank at the relevant time. The Bank already had the respondent's personal details. There was no evidence that the respondent had ever accessed the withdrawal slip in question as it remained in the Bank's possession at all material times. This is particularly significant when note is taken of the fact that the withdrawal slip was in the Bank's possession for some thirteen days before the second withdrawal was made. The Bank's failure to co-operate unfortunately meant that a number of possibilities cannot be discounted in this matter.

The court a quo found that, because the Bank was in possession of the withdrawal slip, any of its officials could have used the documents that had previously been presented in order to capture the signature and the identity particulars of the respondent. The court a quo found that it was not clear whether the respondent was involved or not in the withdrawal of 31 May 2012. The appellant's involvement was thus not proved. The appellant's involvement or guilt in the withdrawal that occurred on 31 May 2012 was not the most readily apparent and acceptable inference. Rather, the balance of probabilities tended, in the view of the court a quo, to point to direct involvement by the Bank or its employees.

Regarding the evidence of the handwriting expert, it is trite that expert opinion evidence is admitted in evidence to assist the court to reach a just decision by guiding the court and clarifying issues not within the court's general knowledge.

In Menday v Protea Assurance Co. Ltd 1976 (1) SA 565…, it was stated that;

“It is not the mere opinion of the expert witness which is decisive but his (or her) ability to satisfy the Court that, because of his (or her) special skill, training and experience, the reasons for the opinion which he (or she) expresses are acceptable.”

In R v Chidota 1966 (3) SA 428 (another criminal matter) the learned judge QUENET (JP) held that:

“Where the sole evidence concerning an accused with the commission of an offence is that of a handwriting expert, precaution should be taken to remove the possibility of error.”

It is trite that, in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion and simply adopt it without questioning or testing it against known parameters.

In S v Zuma 2006 (2) SACR 257, 263 the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court's own capabilities and responsibilities in drawing inferences from the evidence.

In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent's signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.

DISPOSITION

In light of the above findings, I am of the view that the appeal lacks merit and therefore ought to be dismissed with costs following the cause.

In the result, it is ordered that the appeal be and is hereby dismissed with costs.

This is an appeal against the whole judgment of the Labour Court sitting at Bulawayo, handed down on 4 March 2015.

The facts of the matter are that the appellant was employed by the respondent as a teacher at Majiji High School. He appeared before a disciplinary committee facing allegations of improper association with a minor student in contravention of paragraph 7 of the First Schedule to the Public Service Regulations (2000) as read with section 45 of the same Regulations.

The minor concerned was a student at the said school. He was convicted and discharged from employment. Aggrieved, he appealed to the Labour Court, which dismissed the appeal. He has now appealed to this Court.

The Labour Court found it necessary to hear evidence from the appellant, the minor student, and a number of witnesses who had given evidence at the disciplinary committee hearing. The Labour Court found that the evidence of most of the witnesses, concerning the love affair between the appellant and the minor student, was hearsay. This was because all that the witnesses could attest to was the fact that the minor student had fallen pregnant which fact the Labour Court correctly found to be irrelevant to the charge that he faced.

The Labour Court found that the minor child gave a detailed account of her love relationship with the appellant - including details which only participants in the relationship would know. Against such detailed evidence from the student, the court found that the appellant gave a bare denial to the allegations and failed to cross examine her on material aspects of the charge.

The appellant was pre-occupied with the issue of paternity, which, in itself, was not relevant to the charge. His failure to cross-examine the minor student on material aspects meant that her evidence stood unchallenged. The Labour Court found the student to be a credible witness and stated that it had no reason to disbelieve her. It then found that the appellant did improperly associate with the minor student.

It is trite that an Appellate Court will not lightly interfere with the lower court's findings on the credibility of witnesses. An Appellate Court will only interfere where it finds that such findings are plainly wrong. It has not been shown, in this case, that the findings of the Labour Court were plainly wrong. Accordingly, no basis has been established upon which this Court can interfere with the Labour Court's findings on the credibility of the minor child.

In the final result, we find that this appeal lacks merit and ought to be dismissed. Accordingly, it is ordered as follows:

The appeal be and is hereby dismissed with costs.

This is an appeal against the whole judgment of the Labour Court dismissing the appellant's appeal against the decision of the Appeals Committee and confirming her conviction on misconduct charges and the subsequent penalty of dismissal from employment.

The appellant was employed by the respondent, a health care insurance provider, as a Claims Assessor. Sometime in February 2016, the appellant, after visiting a dentist with her husband, returned to work and fast-tracked both their claims for a refund contrary to standing procedures established by the respondent. The appellant's husband's claim was however intercepted before it was fully processed. The appellant used a computer allocated to a fellow member of staff to process the claims, and, in her case, she did so fully aware that a refund was not yet due as her treatment was still in progress. She retained the hard copies of the claim in her drawer.

She was charged with breaching sections 24(c) and 25(h) of the First Mutual Holdings Limited Group Code of Conduct. The charges were framed as:

“1. Section 24 'Offences relating to disobedience or indiscipline'

(c) None compliance (sic) with established procedures or standing instructions.

2. Section 25 'Offences relating to dishonesty, theft, fraud and other related offences'

(h) Any other dishonesty towards company, fellow members of staff or members of the public.”

At the disciplinary hearing, evidence was led on behalf of the respondent to the effect that the appellant processed and authorised a high cost procedure without a quotation or an invoice from the laboratory which was supposed to undertake the work. The appellant confirmed to the disciplinary committee that she knew that she was wrong in confirming the claims in the absence of invoices.

The appellant was found guilty on both charges and penalties of a final written warning on the first Count and dismissal on the second were imposed on her. The net result was thus a dismissal.

An appeal by the appellant to the Appeals Committee was unsuccessful. The committee was of the view that, taking into account the position occupied by the appellant, the role and the tasks that she performed required an honest person who honours, respects, and abides by the processes laid down by the business in order to avoid financial leakages. The Appeals Committee further found that the appellant's actions compromised the relationship of trust that was supposed to prevail between her, the company, and other employees.

The appellant then appealed to the Labour Court. Her appeal was dismissed. The Labour Court was satisfied that, on the evidence that was placed before the disciplinary and appeals committees, the appellant was properly found guilty. On the penalty imposed, the Labour Court endorsed the confirmation of the same by the Appeals Committee. It found that the dishonesty exhibited by the appellant was evidently pre-planned. It is against that decision that the appellant then filed this appeal to this Court on the following grounds:

1. The court a quo erred and grossly misdirected itself on questions of law by making the following findings of fact which are outrageous in their defiance of logic that no reasonable court properly applying its mind to the issues could have arrived at the conclusion reached:-

1.1. By confirming a finding of guilty in the circumstances where it is clear that the appellant did not commit the offences she was convicted of. The respondent failed to prove its case on a balance of probabilities. With respect to Count Two, the respondent had the obligation to prove, beyond reasonable doubt, that the appellant committed the alleged offence, this is particularly so, considering that the allegations being raised are criminal in nature. The appellant was found guilty of the offences without any evidence substantiating the same.

1.2. By making a finding to the effect that the appellant admitted to having violated the procedures in the circumstances where it is clear from the record that no such admission was ever made, but, rather, the appellant maintained her plea of not guilty which was not successfully rebutted by the respondent.

2. The court a quo erred at law by ordering dismissal which is excessive considering the appellant's circumstances including, but not limited to, previous disciplinary record, length of service and personal circumstances. It is trite that disciplinary hearings must be largely educational or corrective and dismissal must be resorted to as a measure of last resort.

3. The court a quo erred at law by failing to consider that the appeals authority proceeded to issue a verdict basing only on written grounds of appeal where it was very clear that the grounds of appeal were arguable and there was need for an oral hearing to clarify the issues. The appellant's constitutional right to be heard was therefore infringed upon.

At the hearing of the appeal before this Court, counsel for the appellant abandoned grounds of appeal 1.2 and 3 thereby restricting argument to grounds of appeal 1.1 and 2.

The two grounds of appeal raise three issues for determination.

(a) The first is whether the appellant was properly found guilty on the first Count.

(b) The second is whether a charge of a criminal nature before a disciplinary tribunal in an employment set up must be proved on a balance of probabilities or beyond reasonable doubt.

(c) The third is whether dismissal was the appropriate penalty in the circumstances.

During submissions before the court, counsel for the appellant conceded that the appellant had been properly convicted on the first Count. The first issue for determination thus ended there.

This is an appeal against part of the judgment of the Labour Court in which the court allowed an appeal against the dismissal verdict returned by the Disciplinary Hearing Committee of the appellant.

The background relevant to this matter is as follows.

The respondent was employed by the appellant as a Dispatch Clerk whose duties included dispatching various company products to customers. In May 2005, the respondent was tasked to load various products onto a delivery truck. He was given invoices that reflected the quantities of the products to be loaded. In executing his duties, the respondent loaded 4 x 20 litres of lacquer thinners without an invoice authorising such loading. This act was detected by the security guard who was at the main gate conducting spot checks. It was established that there was an over supply of 4 x 20 litres of lacquer thinners. The respondent's immediate supervisor was informed.

The respondent was charged with four counts of misconduct emanating from the same act. He was charged with neglect of duty, negligence, theft and/or aiding theft.

The respondent admitted that he was negligent in the performance of his duties. Although there was a clear splitting of charges, he was found guilty of all the charges and dismissed from employment. No proper record of proceedings was kept by the Disciplinary Hearing Committee.

The respondent appealed to the General Manager who dismissed the appeal. He then appealed to the Labour Court and his application was successful on the charge of theft. The President of the Labour Court held that the sketchy facts set out in the minutes made little attempt to disprove the respondent's case. He concluded that there was no intention to steal on the part of the respondent and that this aspect had not been canvassed on the scant facts set out in the minutes. The Labour Court then ordered the employer to reinstate the respondent without loss of salary and benefits.

Aggrieved by this ruling, the employer has appealed to this Court.

It is apparent from the record that the Disciplinary Hearing Committee did not keep a proper record of proceedings. The imprecise facts set out in the minutes of the Disciplinary Hearing Committee only indicate that the appellant was found guilty of all four charges and was consequently dismissed. No reasons were given for such verdict. The court a quo, too, fell into error in failing to determine which of the four charges of misconduct preferred against the respondent had been proved….,.

The respondent, in this case, violated a company rule that no product was supposed to be loaded into a delivery truck without necessary supporting documents. The rule that the respondent had violated was meant to prevent pilferage and protect the business interests of the appellant and was therefore a reasonable standard which had to be respected.

The court a quo held that the appellant failed to prove that the respondent intended to deprive the appellant of his paint. In its findings, the President of the Labour Court stated that:

“The sketchy facts set out in the minutes made little attempt to disprove the appellant's case. He admitted that he negligently loaded consignments of paint which had no invoice. The charge of theft requires proof of a guilty mind. In other words, the loading must have been deliberately done with intent to deprive the owner of his paint. This aspect was not canvassed on the facts set out on the minutes.”

The evidence on record shows that the respondent used a 4 x 5 litres invoice to load 4 x 20 litres. When asked to explain his conduct, he said it was a mistake on his part as he was holding two separate invoices at the time for the same commodity one for 4 x 5 litres and the other for 4 x 20 litres. No evidence was led as to how he procured the 4 x 20 litres of lacquer thinners from the stores, or who may have procured it.

It is this Court's view that the appellant company failed to discharge the onus upon it. The fact that the respondent admitted that he mistakenly loaded 4 x 20 litres of paint and gave the security guard a wrong invoice does not mean that he intended to deprive the appellant of his paint. The appellant was required to prove that the respondent's intention was to permanently deprive the appellant of his paint. There is nothing to disprove the respondent's assertion that he made a mistake when he loaded 4 x 20 litres of lacquer thinners into the truck instead of 4 x 5 litres.

In our view, the conclusion of the court a quo, that the intention to deprive the owner of his goods on the charge of theft had not been established, is a correct finding. There is therefore no basis upon which this Court can interfere with the above finding of the court a quo because there is no evidence on record that shows that the respondent intended to permanently deprive the appellant of his paint.

The papers filed of record reveal that the respondent was facing four counts of misconduct; two of which were of negligence and he pleaded guilty to those counts. However, the court a quo, in finding that the respondent was not guilty of theft or aiding theft did not make a finding as to whether or not he was guilty of negligence.

The respondent had admitted having been negligent. At the very least, the admitted facts proved that he was negligent in executing his duties. The court a quo should therefore have substituted a verdict of guilty of negligent performance of duty. As all the facts are before us, this Court can correct this anomaly without the need to remit the matter.

Accordingly, the order of the Labour Court must be set aside and substituted with one finding the respondent guilty of negligence.

On the issue of the appropriate penalty, it is common cause that the prescribed penalty for negligent performance of duty, in terms of the appellant's Code of Conduct, is a final written warning. As there is no need to remit the matter, that is the penalty that should be substituted…,.

Accordingly it is ordered:

1. The appeal is allowed with costs.

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

“(i) The appellant's dismissal is set aside.

(ii) The appellant is found guilty of negligent performance of duty.

(iii) The appellant is given a final written warning.”

Following charges of misconduct preferred against the respondent, the Hearing Officer appointed by the appellant found him guilty of five counts of conduct inconsistent with the fulfilment of the express or implied conditions of his employment contract. Consequent upon that finding, the disciplinary authority imposed the ultimate penalty of dismissal.

Dissatisfied with the manner in which the proceedings had been conducted, the respondent, as applicant, filed a review application seeking an order setting aside his suspension and the proceedings that had taken place before the Hearing Officer. After hearing argument from both parties, the Labour Court found in favour of the respondent. Pursuant thereto, the court made an order setting aside the dismissal of the respondent and remitting the matter for a fresh hearing within a period of three months.

It is against that order that the appellant has appealed to this Court seeking an order setting aside that decision and replacing it with one dismissing the review application.

BACKGROUND FACTS

In view of the issues that arise for determination before this Court, it is necessary to set out the factual background in some detail. The facts of this case are these.

The respondent was employed by the appellant as its General Manager, Operations, a position that was also commonly referred to as Chief Operations Manager. The appellant, a duly registered company in terms of the laws of this country, is a subsidiary of Meikles Ltd.

On 24 April 2014, the respondent was placed on suspension with benefits pending investigations into allegations that he had improperly handled the purchase of a hundred cases of Famous Grouse Whiskey from an entity called Fly Crew Investments. The suspension was at the instance of Meikles Ltd. It was alleged that Fly Crew Investments did not have a valid agreement with Meikles Ltd for the supply of whiskey; that it was not the holder of a valid wholesale liquor licence; and that it had not provided proof of the origin of the whiskey.

On 9 May 2014, Meikles Limited preferred two charges of misconduct against the respondent. It was alleged that he had, firstly, improperly authorised the purchase of the whiskey from Fly Crew Investments, and, secondly, that he had engaged in conduct that gave a company known as Zimsource an unfair advantage over other suppliers of mealie meal.

The letter containing the charges also set down the disciplinary hearing for 14 May 2014 at the Meikles Boardroom.

Apparently, because of the senior position occupied by the respondent and the fact that the Executive Chairman of Meikles Ltd, one John Moxon (“Moxon”), was to be called as a witness, a decision was taken, by Meikles Ltd, to appoint a senior legal practitioner as the Hearing Officer. For her services, she was to be paid by Meikles Ltd.

On 14 May 2014, the respondent, accompanied by a legal practitioner from the firm of legal practitioners representing him, attended the hearing but requested for the postponement of the matter. This was on the basis, firstly, that the legal practitioner representing him, a Mr Muza, was out of the country in Hong Kong and, secondly, that he had only been served with the notice of hearing on Friday 9 May 2014, giving him very little time to prepare for the hearing. The parties agreed that the hearing be postponed and be heard during the period 27-30 May 2014. As further agreed, the respondent, later that day, confirmed, in writing, that he was waiving any rights he may have had in respect of the fourteen (14) day period during which the matter was required be determined in terms of the relevant Code.

On 20 May 2014, the respondent's legal practitioners wrote to the Hearing Officer raising a number of concerns;

(i) The first was that the letter containing the charges did not indicate in terms of which Code, or sections of the Code, the respondent had been charged.

(ii) Secondly, that since the respondent was not employed by Meikles Limited but by TM Supermarkets (Pvt) Ltd, the decision by Meikles Ltd to suspend and prefer charges of misconduct was null and void.

(iii) The respondent also took issue with the appointment of a legal practitioner, an outsider, as the Hearing Officer.

The respondent's legal practitioners demanded the reversal of the disciplinary process and reinstatement of the respondent and gave the appellant up to 22 May 2014 to comply.

By letter dated 22 May 2014, Meikles Ltd lifted the suspension and directed the respondent to report for duty the following day at 7:45a.m. The respondent's legal practitioners responded immediately, advising that they had not been able to contact the respondent but had ascertained from his wife that he would only be back late on 25 May 2014, and that, consequently, he would only be able to report for duty on 27 May 2014, as 26 May 2014 was a public holiday.

On 23 May 2014, i.e. the following day, TM Supermarkets (Pvt) Ltd, the appellant in this case, then suspended the respondent without pay and benefits in terms of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15 of 2006) (“the National Code”). The appellant simultaneously preferred a total of five charges alleging conduct inconsistent with the fulfilment of the express or implied conditions of his employment contract. The charges were based on the same set of facts that had given rise to the two charges previously preferred against him and which had subsequently been withdrawn. Attached to the charges were various documents which the appellant indicated were to be used during the hearing. The letter set the matter down for hearing on Friday 30 May 2014.

On 28 May 2014, the respondent's legal practitioner wrote to the appellant, advising that he would be engaged in the Labour Court on 30 May 2014 and that he would therefore be unable to attend the hearing on that date. He further indicated that he would be available to appear before the Hearing Officer on either 4 June 2014 or 10 June 2014.

Following receipt of that letter, a Colonel Dyke and a Mr T. Mpofu, representing the appellant, communicated with the respondent's legal practitioner during which tentative dates, in particular 11 June 2014, were discussed. The respondent's legal practitioner reiterated that he was not able to attend the hearing set for 30 May 2014. No confirmation of the new hearing date was made by the two gentlemen.

In a letter dated 30 May 2014, the appellant confirmed the discussion between the respondent's legal practitioner and its representatives, namely, Colonel Dyke and Thabani Mpofu, on the need for a postponement of the hearing that had been scheduled for 30 May 2014 to a future date. In the letter, the appellant advised that the matter would now be heard on 3 June 2014. As 30 May 2014 was a Friday, this effectively gave the respondent only one business day i.e Monday, 2 June, to prepare for the hearing.

On 2 June 2014, the respondent's legal practitioners once again wrote to the appellant re-iterating that he would be in the Labour Court on 3 June 2014 and expressing surprise that, despite previous discussions, the matter had been set down for 3 June 2014. In the letter, he again sought a postponement.

It is what happened on 3 June 2014, the date of hearing, that gave genesis to the proceedings before the Labour Court.

On that day, the respondent, and a legal practitioner from the firm representing him, appeared before the Hearing Officer. A request for the matter to be postponed was refused. Instead, the Hearing Officer stood the matter down for an hour, indicating that witnesses, some from as far afield as Victoria Falls, were in attendance. The respondent's legal practitioner, Mr Muza, eventually appeared before the court at 12 noon. At that stage he raised a number of objections. Firstly, that the respondent required a copy of the order for 300 bags of mealie meal that formed part of the charges against him. He also required the procedure manual, a summary of the employer's evidence and access to the respondent's laptop, which was in the appellant's custody, in order to prepare his defence. Expressing the view that the respondent was merely trying to facilitate a postponement of the matter which had been denied, the Hearing Officer ordered that the hearing proceed. She was of the view that since the employer was to call a total of six (6) witnesses, it was unlikely that the matter would get to the defence case by the close of business that day, and, accordingly, directed that the documents be furnished by the close of business so that the respondent would have the opportunity to prepare his defence “especially after hearing the evidence of the witnesses called by the employer.”

There were three other objections raised after the ruling by the Hearing Officer that the matter proceeds.

The first was that the Hearing Officer should recuse herself because she was not an employee of the appellant; that there were other suitable persons within the company who could conduct the hearing; and that, in any event, as she stood to be paid for her services by the appellant, she was likely to be biased against the respondent.

It was also submitted that the involvement of Thabani Mpofu, who was an outsider, vitiated the proceedings.

Whilst accepting that Thabani Mpofu's status within the appellant did not appear to be clearly articulated, the Hearing Officer concluded that Thbani Mpofu was working for the appellant on what appeared to be a consultancy. She accordingly dismissed all the objections raised, including the objection that the suspension was unlawful because, at the stage when the respondent was again suspended, on 23 May 2014, he had not yet been reinstated.

After the several rulings by the Hearing Officer, the respondent's legal practitioner complained that he and his client were very unhappy about those rulings, in particular, that the hearing proceeds in the absence of the documents requested. He complained that they were not in a position to cross-examine witnesses without those documents. He also questioned the set down of the matter when it had been made clear in several correspondence that he would not be available on 3 June 2014. He further complained that the hearing was an ambush.

That notwithstanding, the Hearing Officer gave the green light for the appellant's first witness to be called. At that stage, the respondent and his legal practitioner then walked out of the hearing.

After the respondent and his legal practitioner had walked out, various witnesses were called at the instance of the appellant. In a determination dated 6 June 2014, the Hearing Officer found the respondent guilty of all the charges preferred against him. An invitation to the respondent to address in mitigation of the punishment to be meted out was ignored. In a ruling dated 11 June 2014, the Hearing Officer imposed the ultimate penalty of dismissal.

APPLICATION FOR REVIEW BEFORE THE LABOUR COURT

Dissatisfied, the respondent, as applicant, filed an application for review before the Labour Court seeking the setting aside of the suspension and disciplinary proceedings. The basis of the application was that:

(a) The decision by the hearing authority to allow access to certain documents and the laptop only at the end of the first day of hearing was irrational in that it compelled the respondent to conduct his case without the documents which the hearing authority had agreed should be furnished.

(b) The disciplinary process was conducted in circumstances which exhibited a real possibility of bias.

(c) John Moxon could not properly depose to an affidavit on behalf of the appellant, a separate legal entity from Meikles Ltd, which he was Executive Chairman of.

(d) Inadequate notice of the hearing set for 3 June 2014 had been given.

(e) The suspension was irregular as it was effected by one Colonel Dyke whose position within the appellant was unknown.

(f) The re-suspension effected on 23 May 2014 was null and void because, as of that day, he had not been fully reinstated; and

(g) In the absence of an agreement on the date and time of reinstatement, the finding that he should have made himself available for work first thing on 23 May 2014 was irrational.

The application for review was opposed by the appellant on a number of grounds.

(i) First, that John Moxon could properly depose to an affidavit on behalf of the appellant.

(ii) Second, that the failure to cite the authority that made the decision was a fatal omission.

(iii) Third, that the respondent had failed to exhaust domestic remedies provided for in section 8(6) of the Code of Conduct which allows a party aggrieved by a decision or manner in which his matter is handled to refer the case to a labour officer.

(iv) Fourth, that the failure to file a supporting affidavit to the application exhibited mala fides on the part of the respondent.

(v) The appellant further averred that, had the respondent genuinely wanted to use the various documents in his defence, he should have requested for them prior to the hearing, and that, “in any event they were going to be furnished to him before presenting his defence.”

(vi) The appellant further averred that the appointment of a legal practitioner as Hearing Officer was permissible in terms of the law. Further, that the respondent wanted the Hearing Officer to set the matter down on a date that suited his convenience.

(vii) It also disputed that the respondent was not given adequate notice of the hearing, having known of the charges since 23 May 2014.

(viii) Lastly, it stated that, once the respondent had been re-instated, he should have reported for work immediately.

After hearing argument on the issues raised in the review proceedings, the Labour Court made a number of findings.

(i) First, that the opposing affidavit filed by John Moxon, Chief Executive Officer of Meikles Ltd, complied with the Rules, notwithstanding that the employer was TM Supermarket (Pvt) Ltd, a subsidiary of Meikles Ltd.

(ii) Second, that the failure to cite the Chairperson of the disciplinary committee was not a fatal irregularity since it was clear that the Hearing Officer was appointed by, and acted at the behest of the appellant.

(iii) Third, that Colonel Dyke had the authority to act on behalf of the appellant, and, consequently, his involvement in the process was not irregular.

(iv) Fourth, that although the respondent walked out of the disciplinary proceedings, he had the right to seek the review of that part of the proceedings that took place in his presence.

(v) Fifth, that it was an irregularity for the Hearing Officer to proceed with the hearing after directing that the documents and laptop that the respondent required be made available at a later stage in the proceedings.

(vi) Lastly, that the involvement of persons not employed by the appellant was not necessarily irregular.

The court found that the appellant had satisfactorily explained the involvement of Colonel Dyke. There was also nothing irregular in the appointment of a legal practitioner as Hearing Officer even though she was to be remunerated by the appellant at the end of the day. The court ultimately found that the failure to provide the documents and laptop were a reviewable irregularity and that a perception of bias had been created. On that basis, the court set aside the order dismissing the respondent and directed the remittal of the matter to the appellant.

The present appeal is against that order.

GROUNDS OF APPEAL

The appellant has attacked the findings of the court a quo on four grounds. I cite these verbatim:

“1. The court a quo erred holding (sic) that the respondent's failure to cite the Presiding Officer of the Disciplinary Hearing was not fatal to its petition for Review. At law. when one attempts to impugn proceedings on account of the conduct and bias of a presiding officer, it is peremptory that such adjudicator be cited and joined as a party in the Review proceedings.

2. The court a quo grossly misdirected itself in determining that the presiding officer in the respondent's hearing was biased. Bias can only be determined in the face of cogent facts evidencing such bias and cannot be inferred from a refusal to postpone a matter that was time-sensitive and had been, on an earlier occasion(s), been delayed (sic).

3. The court a quo erred in failing to hold that, by the respondent abandoning and absenting himself from the disciplinary proceedings, he thereby abdicated any right and entitlement to impugn such proceedings or the proceedings eventual outcome. It is an established rule of law that if an employee walks out of the proceedings, he does so at his own peril and at the palpable risk of having the proceedings conducted in his absence.

4. The court a quo grossly misdirected itself in finding that there was a procedural irregularity as regards the respondent's request for documents. The finding was grossly irregular as evidence had led (sic) showing that the documents requested by the respondent were for the preparation of his defence and not documents that were to be used by the applicant in the prosecution of its case against the respondent. In any case, the respondent was never denied the documents, but, instead, denied a spurious request for postponement.”

APPELLANTS SUBMISSIONS ON APPEAL

In motivating its grounds of appeal, the appellant made the following submissions.

(i) First, the allegations of bias on the part of the Hearing Officer were not a trifling matter. The party accused of partiality should therefore have been given the opportunity to explain or defend herself. This is particularly so given that the Labour Court exercises the same powers of review as does the High Court.

In terms of the High Court Rules, Rule 256 in particular, an application for review must be directed at, inter alia, the presiding officer of the tribunal.

(ii) Secondly, in view of the fact that the hearing authority was presiding over proceedings that were time sensitive, the request for a postponement was considered against this requirement.

(iii) Thirdly, no bias was exhibited.

(iv) Lastly, by walking out of the proceedings, the respondent had waived all rights to impugn the entire proceedings, including that part of the proceedings that had taken place in his presence. He could not, therefore, appeal or seek the review of a process he had abandoned.

RESPONDENT'S SUBMISSIONS ON APPEAL

The respondent, on the other hand, submitted as follows;

(i) First, the appellant had sought a remittal of the matter to the court a quo. That relief having been granted, the appellant could not have appealed against the order.

(ii) Second, that the Hearing Officer does not exist independently of the employer. The substance of the dispute concerned the irregularities in the disciplinary processes of the appellant. That issue could be determined without the need to involve the authority. In any event, the law is now settled that it is improper for an adjudicator to seek to justify its conduct or pitch camp with one of the litigants. There were no other facts which the authority was required to set out as the record of the proceedings was before the court.

(iii) Third, that there is no law that bars a litigant from challenging conduct that takes place in his presence.

(iv) Fourth, once the Hearing Officer accepted the request that the documents and laptop should be made available, she could not proceed before these were made available. In fact, by nevertheless proceeding with the hearing, the Hearing Officer gave the impression of bias.

(v) Lastly, the involvement of Colonel Dyke and Thabani Mpofu, who were outsiders, vitiated the proceedings.

ISSUES FOR DETERMINATION

I consider the issues that arise for determination before this Court to be the following;

(i) First, whether it was mandatory, on the part of the respondent, as applicant a quo, to cite as a party, the Hearing Officer who chaired the disciplinary proceedings. If so, whether the non-citation renders the entire review proceedings a nullity.

(ii) Second, and only in the event that the answer to the first issue is in the negative, whether the proceedings before the legal practitioner were afflicted by procedural irregularity as would justify an order setting them aside.

(iii) Third, whether, in any event, the legal practitioner conducted herself in such a way as to induce a sense of bias.

(iv) Fourth, the implication, in law, of the respondent walking out in the midst of disciplinary proceedings and attacking the conduct of the portion of the proceedings that took place in his presence. In particular, whether he has the locus standi to launch a review application in respect of that part of the proceedings that took place during his presence.

(v) Fifth, the effect on the proceedings following the involvement of Colonel Dyke and Thabani Mpofu, who prosecuted the disciplinary proceedings on behalf of the appellant.

I deal with each of these in turn.

WHETHER THE DISCIPLINARY CHAIRPERSON SHOULD HAVE BEEN CITED

The appellant is correct in its submission that Rule 256 of the High Court Rules, 1971 provides that, in an application for review, the person who presided over a tribunal or board must be cited as a respondent in those proceedings. Indeed, in Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S), McNALLY JA made the following pertinent remarks…,:

“In review proceedings, where allegations of procedural impropriety or bias are commonly made (those being the common grounds which justify review) the presiding officer whose conduct is in question may, if he wishes, file an affidavit to clarify such matters as he may wish to clarify. And, in a proper, though I would think exceptional, case he may be represented by counsel. But only on that issue. It is not for him to enter into the merits of the case or to defend his decision. That is the function of counsel for the respondent employer or the respondent employee, as the case may be.”

Whilst the High Court Rules require that the person whose conduct is impugned should be cited, the position now appears settled that such person must not be seen to be pitching camp with or taking sides in the dispute. In such a case:-

“…, an arbitrator, umpire, judge or other adjudicating body has one of two choices. The first is that he could file an affidavit setting out facts which he considers may be of assistance to the court. So long as such facts are stated colourlessly, no-one could object, but if the affidavit should err plainly in support of one of the parties it might expose the adjudication to the odium of the court….,. The second choice of the arbitrator or umpire when served with the notice of motion for his removal, or to set aside his award, is to take no action and abide by the court's decision.”

Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S)…,.

Although in terms of section 89(1)(d) of the Labour Act [Chapter 28:01] the Labour Court shall exercise the same powers of review as does the High Court, there is no provision, either in the Labour Act itself or the Rules of Court made thereunder, requiring the citation of the presiding officer in these circumstances.

The position in neighbouring South Africa is different.

The Labour Court Rules there provide that where the Rules are silent on a particular aspect, the Uniform Rules of the High Court may be applied – Public Servants Association of South Africa & Minister: Department of Home Affairs & Others Case No. JA 90/11; Mads Pub & Sizzle Cc t/a The Grant v Raymond Ngwenya Case No. JS 448/12.

The strict rules of procedure and evidence that apply in the High Court do not apply to proceedings before the Labour Court. Indeed, the Labour Court Rules provide that matters coming before that court must not be determined on technicalities but rather on the substance.

In this regard, attention is drawn to Rule 12 of both the 2006 and 2017 Labour Court Rules.

On a related aspect, the High Court Rules, 1971 also provide that the non-joinder or misjoinder of a party shall not defeat a cause or matter on that score alone.

The disciplinary proceedings in this case were conducted in terms of the National Code, 2006. In terms of that Code, disciplinary authority means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a work place.

Clearly, “a person dealing with disciplinary matters at the workplace” is one appointed by the employer. In other words, such person or authority does not exist independently and outside of the employer. Such a person, in fact, becomes part of the employer's processes.

In my considered view, the failure to specifically cite the presiding officer in review proceedings before the Labour Court cannot constitute a fatal irregularity.

In this case, there is a complete record of the proceedings that took place before the Hearing Officer. As counsel for the respondent correctly points out, there are no other facts that she would have been required to set out to assist the Labour Court in its determination of the matter.

It is common practice in this country for the employer, in these circumstances, to be cited as a party as opposed to the disciplinary committee or authority set up at the work place to adjudicate over labour disputes. Naturally, an employer may, where necessary, attach an affidavit by the presiding officer to clarify any issues arising before the court.

WALKING OUT OF PROCEEDINGS - WHETHER CONSTITUTES WAIVER

The submission by the appellant that when a party absents himself from or walks out of disciplinary proceedings, he waives his right to challenge the conduct of the proceedings is, in general terms, correct. A number of cases decided by this Court have stressed this principle.

See, for example: Moyo v Rural Electrification Agency SC04-14; Emmanuel Masvikeni v National Blood Service Zimbabwe SC28-19.

In the matter that gave rise to the review proceedings before the court a quo, the respondent made it clear that he was not challenging the process that took place after he walked out. Rather, he was challenging the proceedings that took place in his presence.

The court a quo reached the decision that in these circumstances the employee cannot be said to have waived his rights to challenge what had happened in his presence.

I am constrained to agree with the court a quo in this respect.

The principle that comes out of cases such as Moyo v Rural Electrification Agency SC04-14 and Emmanuel Masvikeni v National Blood Service Zimbabwe SC28-19 is that a person cannot walk out of a hearing and thereafter allege that things done in his absence are subject to review by the court. In a review, one is concerned with the procedural propriety of proceedings and not the merits of the matter. If, for example, a disciplinary committee is not properly constituted, an employee who walks out of the proceedings taking place before that committee can properly seek the setting aside of those proceedings on account of that irregularity.

In the present matter, the respondent's complaints touched on processes that occurred in his presence before he and his lawyer walked out of the proceedings. The principle that comes out of cases such as Moyo v Rural Electrification Agency SC04-14 and Emmanuel Masvikeni v National Blood Service Zimbabwe SC28-19 has no application in these circumstances.

WHETHER THE REFUSAL TO AVAIL CERTAIN DOCUMENTS AND ITEMS WAS IRREGULAR

After the request for a postponement had been turned down, the respondent's legal practitioner requested the Hearing Officer to avail to the respondent a number of documents which he intended to peruse in order to prepare his defence. He also requested to be given access to his laptop. Asked whether a request had previously been made for these documents and laptop, the respondent's legal practitioner responded that the request had not been made because the parties were still trying to agree on a date of hearing. Asked by the Hearing Officer whether the documents were available, the appellant's representative, Thabani Mpofu, indicated that the documents were available and could be furnished. It was at that stage that the Hearing Officer made the remark;

“OK. I suggest we start with the hearing. I doubt we will finish today. Please make those documents available to A. Muza, if possible, by the close of business today; if necessary, by e-mail.”

She further made the remark;

“So we can proceed and the documents will be furnished by close of business today. That is an order…,.”

In her ruling, the Hearing Officer stated as follows:-

“…,. I formed the impression that these documents were being requested purely to force the postponement which had already been denied. Nevertheless, I ordered that the hearing proceed and the documents be furnished by the close of business. As the employer had six witnesses, it was unlikely that the matter would get to the defence case by then. The employee would still have the opportunity to prepare his evidence; even better so, after hearing the employer's evidence.”…,.

The court a quo concluded that the Hearing Officer had erred in her approach. It found that “the guilt or otherwise of the applicant was premised on the laptop and other documents which he requested to be availed first before witnesses could be led.” The court found that it was critical that the respondent should have been given access before the employer was permitted to call any witnesses.

The court a quo was, in my view, correct in finding, as it did, that the conduct of the Hearing Officer constituted a reviewable irregularity. Once the Hearing Officer had decided that the documents and laptop should be accessed by the respondent, she could then not allow the hearing to proceed and the documents to be made available at a later stage. If, as she later suggested, her view was that the request for the documents was not genuine, she should have turned the request down. She appeared to have failed to appreciate that the documents and laptop were not simply required for purposes of the defence case. They were required right from the beginning of the oral testimony of the witnesses. Without the documents, the respondent would have been constrained to properly cross-examine the witnesses called by the appellant.

It was not for the Hearing Officer to decide how important the documents were to the respondent as at that stage the defence to the charge had not yet been given.

I am satisfied that, on this basis alone, the proceedings stood to be set aside and that the court a quo was correct in doing so.

THE QUESTION OF BIAS

As noted, the court a quo found that the decision by the Hearing Officer to continue with the hearing notwithstanding the respondent's desire to have access to certain documents and to his laptop taken together with some of her utterances during the proceedings created a perception of bias.

Perusal of the record of the proceedings, and the subsequent ruling, does, indeed, convey a perception of bias against the respondent.

Firstly, the Hearing Officer says the set down date of 30 May 2014 had been agreed but the respondent and his legal practitioner had not turned up. Factually, that was incorrect. Initially, the hearing had been scheduled to take place during the period 27-30 May 2014. But that hearing related to charges preferred by Meikles Ltd which were withdrawn on 22 May 2014.On 23 May 2014, the appellant, not Meikles Ltd, then suspended the respondent and set the hearing again for 30 May 2014. That date was imposed by the appellant. Correspondence on file shows that the parties never agreed on the hearing date of 30 May 2014. To the contrary, the respondent's legal practitioner made it very clear he had prior commitments in the Labour Court - which was a more senior tribunal.

The respondent's suspension was withdrawn on 22 May 2014 and a letter written to him the same day requiring him to report for work the next day at 7:45am. His legal practitioners immediately wrote to the appellant to advise that the appellant was out of town and that he would only be able to report for work on 27 May 2014 since 26 May 2014 was a public holiday. It was common cause that, up until the time the appellant wrote to him withdrawing the suspension, the respondent would not have known that the suspension and charges were to be withdrawn. He could not have known, in advance, that the appellant was going to withdraw the letter of suspension and require him to immediately report for duty. The remark by the Hearing Officer, that the respondent was “absent without leave”, that he “should have been able to go to work within an hour of the employer's summons if required…,” were unfortunate statements that clearly failed to take into account the realities on the ground.

Further, the record of proceedings shows very clearly that the date of 3 June 2014 was not agreed between the parties. Whilst the proceedings were time sensitive, the respondent had previously, in writing, waived any rights to insist on the proceedings being determined within fourteen (14) days. The respondent's legal practitioner had made it very clear that he would be engaged in the Labour Court on that date. He suggested 4 or 10 June. Thereafter, there were further discussions between him and the appellant's representatives, Colonel Dyke and Thabani Mpofu, on possible dates for the hearing and 11 June 2014 was suggested as a convenient date. Despite all this, the Hearing Officer was adamant that the matter should proceed on 3 June 2014. Her comment, in reference to Phathisiwe Ncube who had come to request for a postponement in place of Mr Muza, that, “I know that young lawyers always have that problem, especially in the High Court, where your bosses send you but unfortunately you have to answer for the firm…,” was also an unfortunate statement.

Viewed against the decision to proceed with the hearing and the directive that the respondent be given certain documents in the middle of the hearing, the conduct of the Hearing Officer, in my view, tended to create the impression of bias.

The position is settled that not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding over judicial proceedings. Actual bias, or partiality, need not be shown as long as the court is satisfied, from the conduct of the presiding officer, either by his words, his action or inaction or his handling of the proceedings that he displayed a real likelihood that he might not be able to act judicially – see MacMillan & Ors v Provincial Magistrate, Harare & Ors 2004 (1) ZLR 17 (H).

The test for bias is an objective one. It is not necessary to show personal animosity towards the employee. If a reasonable person, in their position, would have thought that he would not have a fair trial in the circumstances, that would be enough – Foya & Matimba v R. & Jackson N.O. 1963 R&N 318 (FS), 322.

In Metropolitan Properties Co. (F.G.C.), Ltd v Lannon & Others (1968) (3) All ER 304, 310A-D, LORD DENNING, with typical lucidity, stated as follows:-

“It brings home this point; in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself…,. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand…,. There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did…,.”

In the light of the above authorities and findings already made, I find no basis upon which the finding that there was an appearance of bias can be said to be wrong.

THE INVOLVEMENT OF COLONEL DYKE AND THABANI MPOFU

The court a quo found that the involvement of Colonel Dyke was “sufficiently” explained by the appellant. As regards Thabani Mpofu, the court was non-committal, expressing the view that “if his participation was calculated to lead the applicant to believe that he was what he claimed to be then that would put him within the ambit of what is frowned upon by law.”

The record shows that Thabani Mpofu had apparently been engaged by the appellant to do certain work for John Moxon and considered himself a “consultant of sorts.”

I am unable to find, in these circumstances, that he was a complete outsider or that the decision by the appellant to use him to present the employer's case is proscribed by the National Code of Conduct. In any event, the judgment of the court a quo, having been in his favour, the respondent cannot seek to impugn the finding by the court a quo that the involvement of Colonel Dyke was sufficiently explained.

DISPOSITION

I am satisfied that no case has been made out to justify interference with the decision of the court a quo. It follows from this that the appeal cannot succeed. Costs follow the event.

In the result, it is ordered as follows:-

“The appeal be and is hereby dismissed with costs.”

The requirement for a litigant who is represented to file heads of argument is captured in Rule 26(1) of the Labour Court Rules, 2006 which states as follows:

“(1) Where an applicant or appellant is to be represented by a legal practitioner or representative at the hearing of the application, appeal or review, the legal practitioner or representative shall -

(a) Within ten days of receiving a notice of response to the application, appeal or review, lodge with the Registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities, if any, which he or she intends to cite; and

(b) Immediately afterwards deliver a copy of the heads of argument to the respondent and lodge with the Registrar proof of such delivery as required by Rule 11.”

Where a party fails to file heads of argument in support of an application, he, she or it shall be automatically barred. This bar is operational in terms of sub-rule 2, which is to the following effect:

“(2) No legal practitioner or representative shall be allowed to make submissions in a matter without having filed heads of argument: Provided that a party who has been barred may -

(a) Make a chamber application to remove the bar, and the Judge or Court may allow the application on such terms as to costs and otherwise as he or she thinks fit; or

(b) Make an oral application to remove the bar at the hearing of the application or appeal.”…,.

A reading of the above provisions will show that a party who is represented must file his, her or its heads of argument within ten days of receiving the notice of response to the application. Failure to file heads of argument means that the legal practitioner is not allowed to address the court in the matter. Both provisions make use of the word “shall”. This evinces the Legislature's intention to make the provisions peremptory.

The provisions of section 90A of the Labour Act [Chapter 28:01] stipulate that the Labour Court shall not be bound by the strict rules of evidence and may ascertain relevant facts by any means which the presiding officer thinks fit and which is not unfair or unjust to any party.

Should our courts be courts of law or courts of justice?

One would presuppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; one is nothing without the other. Yet, those who practice the law will know that, often times than not, the rigid application of the law may lead to a palpable injustice. That is why the law is fluid, meaning that its application depends on the circumstances before the court.

The law must be applied to avoid perpetrating an injustice, especially where the extent of the injustice would be the non-suiting of a litigant, leaving the litigant with nowhere else to turn as it were. That is not to say that non-deserving litigants should be shielded from the inevitable consequences that flow from a correct application of the law. On the contrary, it is my view that our courts should be courts of law that derive their authority and legitimacy from a fair and impartial application of the law in the pursuit of justice and fairness….,.

This court has no jurisdiction to exercise the same principles of social justice and equity as the Labour Court, and any attempt to rely on labour matters, as the basis for inviting this court to exercise powers that are specific to and pertinent to the Labour Court, will find no truck with this court.

This is an appeal against a judgment of the Labour Court which dismissed an appeal by the appellant (“Murawo”) against the termination of his contract of employment by the respondent, the Grain Marketing Board (“the GMB”).

The background facts are as follows:

Murawo was employed by the GMB as a Safety, Health and Environment Officer. Between 4 March and 7 March 2004 the GMB held a strategic planning workshop (“the workshop”) at Troutbeck Inn, Nyanga. Those eligible to attend the workshop were divisional heads and departmental heads. Officers below departmental heads could also attend the workshop if invited.

Murawo was neither a divisional head nor a departmental head.

On 5 March 2004, Murawo attended the workshop and presented his paper. However, it later turned out that Murawo's attendance at the workshop had not been authorised by the GMB directorate. He was, therefore, asked to leave the workshop.

On 6 March 2004, Murawo left the workshop and checked out of the hotel, but remained within the hotel premises because he had a cheque to give to Mrs Zemura (“Zemura”), the GMB's Public Relations Manager, who was participating in the workshop.

However, Murawo's continued presence at the hotel offended the GMB directorate.

Consequently, the directorate called upon Mhonde, Murawo's head of department, to ensure that Murawo left the hotel premises. Subsequently, Murawo left Troutbeck Inn after giving Zemura the cheque that he was supposed to give her.

Thereafter, on 8 March 2004, Murawo was suspended without pay and benefits on the ground that he had committed two acts of misconduct in terms of the GMB Code of Conduct (“the Code”). In relevant part, the letter of suspension, written by Mhonde, reads as follows:

“On Wednesday the 3rd of March 2004, you communicated to me that the Marketing Director had invited you to the Strategic Planning Workshop. This, however, turned out to be untrue.

On Saturday morning, at about 08.30am, on the 6th March 2004, I told you to leave the Troutbeck Inn immediately as you were not invited to the meeting. However, up to lunchtime you were still at the premises and now purporting to have been tasked by the A/CEO to discuss issues related to workers with the Union representatives, Mr Munodawafa and Mr Mhunza, and present them in the seminar. This also turned out to be untrue.

Given the scenario explained above, Management has decided that you be suspended without pay and benefits with immediate effect, and you are being charged in line with the GMB Code of Conduct as follows:

1. Category I section 1: 'Insubordination – wilful and unreasonable disobedience of a lawful order from a superior'.

2. Category I section 5: '…, activities inconsistent with the express or implied condition of his contract of employment.'…,.

In keeping with the provisions of our Code of Conduct you are required to reply in writing answering to the above charges…,. Your reply must, of necessity, cover the following aspects:

(a) Admit or deny the charges.

(b) Facts to be taken into account if you admit the charges.

(c) If you deny the charges, offer an explanation of the basis of your defence…,.”

On 9 March 2004, Murawo replied to the letter of suspension. His letter, in relevant part, reads as follows:

“I confirm that I did not receive a written invitation to present a paper at the Troutbeck Retreat. I, however, thought, in good faith, that, since this was an important strategic planning session of the organisation our department could take advantage of the gathering of eminent people in the organisation to market the Health and Safety portfolio which was launched some eight months ago.

I prepared a document for presentation. Initially, the presentation was short and just a small section of the presentation of the Engineering Department. I, however, developed a longer presentation which I thought could be incorporated in the Engineering Report. I thought I was contributing to the organisation's cause. I did not know that in doing so I was contravening any section of the GMB Code of Conduct.

Therefore, if at all I contravened category I section 1 and 5 of the Code, the contravention was not wilful.

When I was excused from the activities of the 6th of March 2004, I checked out of the hotel. I, however, realised that I had forgotten to give a cheque I had been asked to bring to Mrs Zemura. As the morning session had already started, I thought it was not wise to disturb the session. I waited for an opportune moment to give the cheque to Mrs Zemura. That moment presented itself at lunchtime and I duly handed over the cheque to Mrs Zemura. At the same time, some apples and potatoes I had ordered away from the hotel, after checking out, were only delivered to me around the same time. I then left for Harare…,.”

On 18 March 2004, Murawo appeared before a disciplinary hearing committee which found him guilty on both counts, and recommended his dismissal. He was subsequently dismissed with effect from the date of his suspension, i.e. 8 March 2004.

Thereafter, on 3 May 2004, Murawo appealed to the Acting Chief Executive Officer (“Muvuti”) against the dismissal. In that appeal he alleged that he had attended the workshop because Mhonde had indicated to him that he (Mhonde) would be comfortable if he (i.e. Murawo) attended the workshop and presented his own paper as an addendum to his (i.e. Mhonde's) report. He also denied being ordered by Mhonde to leave Troutbeck Inn.

Nevertheless, on 30 May 2004, Muvuti dismissed the appeal.

Aggrieved by that decision, Murawo appealed to the Labour Court. After hearing evidence and considering written submissions filed on behalf of the parties, the Labour Court allowed the appeal in respect of the first count, i.e. the count alleging “wilful and unreasonable disobedience of a lawful order from a superior”, but, dismissed the appeal in respect of the second count, i.e. the count alleging that Murawo committed “activities inconsistent with the express or implied condition of his contract of employment.”

Dissatisfied with that result, Murawo appealed to this Court....,.

The main issue in this appeal is whether Murawo was properly found guilty of “activities inconsistent with the express or implied condition of his contract of employment.”

However, before dealing with that issue, I would like to consider a submission by Murawo's counsel in his heads of argument.

The submission was that the Labour Court erred in its interpretation of the act of misconduct specified in section 5 of category I offences, and that, in terms of the eiusdem generis rule of statutory interpretation the conduct complained of by the GMB does not constitute the act of misconduct specified in section 5.

The act of misconduct specified in section 5 reads as follows:

“Incitement, intimidation, indulging in disorderly behaviour or activities inconsistent with the express or implied condition of his contract of employment.”

As already indicated, Murawo was charged with “activities inconsistent with the express or implied condition of his contract of employment.”

The submission by Murawo's counsel was that the activities inconsistent with the express or implied condition of an employee's contract of employment, envisaged in section 5, must be activities in the same genus or class as incitement, intimidation and indulging in disorderly behaviour.

The learned author, GAIL-MARYSE COCKRAM, states the eiusdem generis rule as follows, at p153 of her work, The Interpretation of Statutes 3ed:

“Where a list of items which form a genus or class is followed by a general expression, the general expression is, in the absence of a contrary intention in the statute, construed eiusdem generis to include only other things of the same class as the particular words.”

I should now determine whether the eiusdem generis rule applies to the interpretation of Employment Codes of Conduct.

I do not think it does.

I say so because, in general, Employment Codes of Conduct are not drafted with the same expertise and precision required for the drafting of statutes. Almost invariably, Employment Codes of Conduct are drafted by laymen with little or no knowledge of law.

However, even if the eiusdem generis rule applied to Employment Codes of Conduct, I am of the view that the rule should have no application in the present case because it would lead to an absurdity. It would mean that “activities inconsistent with the express or implied condition of his contract of employment” which are in the same genus or class as “incitement, intimidation (and) indulging in disorderly behaviour” would constitute acts of misconduct, whilst other “activities inconsistent with the express or implied condition of his contract of employment”, which are not in the same genus or class as “incitement, intimidation (and) indulging in disorderly behaviour”, which could be more serious activities, would not constitute acts of misconduct.

In any event, the eiusdem generis rule is not a rule of general application, and has to be applied with caution.

This point was made by SOLOMON CJ, in Rex v Nolte 1928 AD 377…, where the learned CHIEF JUSTICE said:

“Moreover, the rule itself is one that has to be applied with caution, and is not of general application. Thus, LORD ESHER, in Anderson v Anderson (1895 1 QB 752) in commenting upon the rule, said:

'I am not surprised to find that the modern tendency of the Courts has been to construe general words in their ordinary sense'…,.”

Similar views were expressed by BARON JA in S v Makandigona 1981 (4) SA 439 (Z AD)…, as follows:

“It must be remembered that the eiusdem generis rule is only one of many rules of construction; it is not to be invoked automatically whenever general words follow particular words. Thus, Craies on Statute Law 7ed says at 181:

'The eiusdem generis rule is one to be applied with caution and not pushed too far, as in the case of many decisions, which treat it as automatically applicable, and not as being what it is, a mere presumption, in the absence of other indications of the intention of the legislature.'”

In the circumstances, I am satisfied that the Labour Court did not err in its interpretation of the act of misconduct specified in section 5 of Category I offences. I am also satisfied that the conduct complained of by the GMB constitutes the act of misconduct specified in section 5.

I now wish to determine whether Murawo was properly found guilty of the act of misconduct specified in section 5.

I have no doubt in my mind that he was.

In the Labour Court, four people gave evidence and were cross-examined. These were Murawo, the GMB Marketing Director (“Makwenda”), Mhonde, and Zemura.

Murawo alleged that he attended the workshop at Troutbeck Inn because he had been invited to do so by Mhonde. That allegation was denied by Mhonde, who said that Murawo had told him that he had been invited to the workshop to present his report by Makwenda. On the understanding that Makwenda had invited Murawo to attend the workshop, Mhonde authorised Murawo's travel arrangements. Makwenda denied that he had invited Murawo to the workshop.

Zemura said that although initially Murawo was not part of the group of people going to attend the workshop he subsequently told her that he had been asked to attend the workshop by Mhonde, and present his report. Acting on that information, she booked him into the hotel.

In his judgment, the Senior President of the Labour Court said the following at pp 24-25 of the cyclostyled judgment (judgment no. LC/H/51/2006):

“On the issue of inconsistent conduct, I am persuaded to agree with the respondent's submissions that the appellant lied and conducted himself in a manner not befitting an officer of his status.

The first lie relates to the issue of who actually invited the appellant to the workshop.

I do not believe that Mr Mhonde ever invited the appellant. The appellant would have said so in his response to the allegations contained in the letter of suspension. Instead, the appellant told the truth by stating the following:

'I confirm that I did not receive a written invitation to present a paper at the Troutbeck Retreat. I, however, thought, in good faith, that since this was an important strategic planning session of the organisation our department could take advantage of the gathering of eminent people in the organisation to market the Health and Safety portfolio which was launched some eight months ago. I prepared a document for presentation….,.'

The above constitutes the truth on the issue of invitation. Any departure from the above cannot be true.

If that were not the case, I would have expected the appellant to go further and say: 'You verbally invited me to present my ten page report as an addendum to yours'.

The appellant does not say so because he knows that he had told his boss that Mr Makwenda had invited him. That was a lie.”

And at p26, the Senior President continued as follows:

“All arrangements for the appellant's attendance at the workshop were based on lies from himself.

The lie to Mrs Zemura was that the Technical Manager (Mhonde) had authorised him to attend, and the lie to Mr Mhonde was that Mr Makwenda had invited him to present a detailed paper on the Safety, Health and Environment Programme. Both officers had then, in good faith, proceeded to facilitate the appellant's attendance at the workshop…,.

My finding, therefore, is that the appellant attended the workshop without authority and that he lied about his invitation. Such conduct was therefore inconsistent with the express and implied conditions of his contract of employment i.e. a violation of the expected degree of honesty and integrity.”

It is clear, therefore, that the learned Senior President made specific findings of fact on the credibility of the four people who testified before him. He found that Murawo had lied, and that the witnesses who testified on behalf of the GMB had told the truth.

As stated by HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa 4ed…,:

“It has repeatedly been laid down that, in view of the advantages enjoyed by the trial court, in seeing and hearing the witnesses, and in being steeped in the atmosphere of the trial, an Appeal Court is, in general, reluctant to disturb the findings of a trial court on questions of fact.”

In the present case, I can find no reason for disturbing the findings of fact made by the Labour Court. In my view, the conclusions reached by the Senior President cannot be described as being so outrageous in their defiance of logic that no sensible person applying his mind to the questions to be decided could have arrived at such conclusions.

Finally, I wish to deal with the submission made by Murawo's counsel that a penalty less than dismissal ought to have been imposed.

The issue of the appropriate penalty for misconduct inconsistent with the fulfilment of the express or implied conditions of a contract of employment was considered by this Court in Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (SC). At 218D-219A McNALLY JA said:

“In Halsbury's Laws of England, 4ed Vol 16, para 642, it is said:

'Misconduct inconsistent with an employee's proper discharge of the duties for which he was engaged is good cause for his dismissal, but, there is no fixed rule of law defining the degree of misconduct which will justify dismissal.'

That passage is based on a dictum by LORD JAMES OF HEREFORD in Clouston & Co Ltd v Corry [1906] AC 122 at 129 (PC), cited with approval in Laws v London Chronicle (Indicator Newspapers Ltd) [1959] 2 All ER 285 (CA) at 287H as follows:

'Now, the sufficiency of the justification depended upon the extent of misconduct. There is no fixed rule of law defining the degree of misconduct which will justify dismissal. Of course, there may be conduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other. On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.'

I consider that the seriousness of the misconduct is to be measured by whether it is 'inconsistent with the fulfilment of the express or implied conditions of his contract'. If it is, then it is serious enough prima facie to warrant summary dismissal…,. Then, it is up to the employee to show that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant, or otherwise so excusable, that the remedy of summary dismissal was not warranted.”

In the present case, Murawo's misconduct can hardly be described as “so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted.” On the contrary, the misconduct was serious and premeditated, and called for the penalty of dismissal.

In the circumstances, the appeal is devoid of merit and is, therefore, dismissed with costs.