City of Harare v Tonderai Muchanyarei

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/629/2016
HARARE, 9 JUNE 2016 &
21 OCTOBER 2016
CASE NO LC/H/APP/103/2016
X-REF: LC/H/187/2013
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/629/2016

HARARE, 9 JUNE 2016 &					CASE NO LC/H/APP/103/2016

21 OCTOBER 2016						            X-REF:  LC/H/187/2013

In the matter between

CITY OF HARARE								APPLICANT

Versus

TONDERAI MUCHANYAREI						RESPONDENT

Before the Honourable B S Chidziva J

For the Applicant	C Kwaramba  (Legal Practitioner)

For the Respondent      T Shadreck  (Trade Unionist)

CHIDZIVA J:

This is an application for leave to appeal against the decision of this court that was handed down on 18 December 2015. This court upheld the award by Honourable Arbitrator S Mugumisi dated 12 February 2012.

The background of this matter is that in 2006 the respondent together with other employees working under the Water Management were transferred to Zimbabwe National Water Authority (ZINWA) through a Government directive. In a subsequent directive in February 2009 Government returned the Water Management employees to the Local Authorities and City of Harare was one of the Local Authorities. When the subsequent directive was made the respondent’s name did not appear on the list. ZINWA charged the respondent and he appeared for hearing in June 2009 in terms of S I 15/2006. He was found guilty of being absent from work without good cause and he was discharged.

The applicant has submitted in this court that:

There exist high prospects of success warranting the granting of leave to appeal.

The balance of convenience and the justice of the case favours the granting of leave to appeal.

The respondent in response submitted that:

The balance of convenience and justice of the case does not favour the granting of leave to appeal.

Water Management functions were transferred back to Local Authorities with effect from 1 February 2009. These transfers were done in terms of section 16 of the Labour Act [Chapter 28:01].

It was after the re-transfers that the respondent was called by the applicant for a disciplinary hearing by the applicant and he was charged and dismissed for absenteeism in terms of S I 15 of 2006 National Code of Conduct. The applicant has its own registered Code of Conduct.

Whether Applicant has high prospects of success warranting the grant of leave to appeal

This court will first determine whether there are high prospects of success on appeal.

D ROBERTS AJA in the case of Pichanick N O v Paterson 1993 (2) ZLR 163 explained the principles that apply in these applications as follows:

“Applying the general tests in connection with the applications for leave to appeal (Herbstein Van Winsen pp 556 – 7) it is common cause, that the amount of the dispute is not triffling, and the matter is of substantial importance to both parties. As to the third test, that is the reasonable prospect of success, after making full allowance for the natural reluctance (of a judge) to say that his own judgment is so inevitably correct that the judges of appeal will concur therein.”

This court has already found that the respondent’s contract was never terminated by ZINWA. Therefore upon transfer of all water management functions, the respondent was also transferred. Therefore ZINWA had no jurisdiction to discipline the respondent after it had transferred him to the applicant. The respondent was wrongly charged and dismissed by the applicant.

In view of this therefore this court finds that the balance of convenience and justice of the case does not favour the granting of leave to appeal. Furthermore there are no prospects of success warranting the granting of the application for leave to appeal.

In the circumstances there his court finds that the application lacks merit and orders as follows:

The application for leave to appeal to the Supreme Court be and is hereby dismissed.

Mbidzo, Muchadehama & Makoni, applicant’s legal practitioners