Clever Nyanhete v National Oil Infrastructure Company of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/422/16
HELD AT HARARE ON 22ND MARCH, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/422/16

HELD AT HARARE ON 22ND MARCH, 2016 	    CASE NO. LC/H/713/15

AND 22ND JULY, 2016

In the matter between:-

CLEVER NYANHETE							    Appellant

And

NATIONAL OIL INFRASTRUCTURE

COMPANY OF ZIMBABWE						    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr E Mukwewa (Legal Practitioner)

Respondent	:	Mr G Jakuosi (Legal Practitioner)

MHURI J.

On the 4th August, 2015 Appellant filed a Notice of Appeal which had the following as grounds of appeal –

“It will be contended that the Appeals Committee erred in one or more of the following:

The disciplinary committee misdirected itself in hearing and conducting the case leading to the Appellant being dismissed from work.

The Appellant clearly did his best as a prudent person to advise the disciplinary committee that their failure to call witnesses who had testified against the Appellant to be cross examined by him was to his prejudice.

There was a procedural irregularity by the disciplinary committee when they did not consider that the local sector official must notify the employee concerned that investigations were being carried out against him.

The disciplinary committee and Appeals Committee erred by not seriously considering that Appellant had worked for 15 years and had never been brought before any disciplinary hearing.

The disciplinary committee erred by not appreciating that Chiyanike the acting charge hand did alleging whilst Appellant connected the hoses.

Mitigatory factors were never considered.”

Respondent took issue with these grounds arguing that they are not proper grounds of appeal and that on that basis the appeal must be dismissed with costs.

It is worth noting that these grounds of appeal were drafted by a legal practitioner.

A reading of the grounds of appeal clearly shows that the drafter did not put any attention to them.

As regards ground number 1, it is difficult to understand what this ground means.  Is it not the duty of a Disciplinary Committee to hear and determine a matter placed before it?  Can one honestly allege as a ground, a misdirection on the part of a Disciplinary Committee for conducting and hearing a case and issuing a penalty.

The ground is totally meaningless and is not concise and precise.  The lack of clarity and conciseness makes it difficult for the other party to respond to it and for the court to understand exactly what it is Appellant is challenging.

In that respect, the ground cannot be allowed to stand.

As regards the 2nd ground, this ground suffers the same fate as the 1st ground.  It is not clear.  A reading of the ground, shows that it raises a procedural issue which should have been raised as a ground for review in an application for review.  It is trite that issues of review cannot be brought on appeal.  Rule 15(3) of this Court’s Rules, Statutory Instrument 59 of 2006 provides the procedure to be followed when one wants to seek review in a matter brought on appeal.  This Rule was not followed by Appellant.

The ground also shows that Appellant is challenging the Disciplinary Committee’s proceedings instead of the Appeals Committee’s proceedings.  He does not state how the Appeals Committee erred in upholding the Disciplinary Committee’s process.  An appeal to this Court should be against the Appeals Committee’s decision.

Grounds 3 and 6 raise issues for review.  Procedural irregularities are not to be raised in an appeal but in an application for review.  The hearing or non-hearing of mitigation is a procedural issue.

Grounds 4 and 5 contest the decision of the Disciplinary Committee and not Appeals Committee.  Though in ground 4 mention is made of Appeals Committee Appellant challenges both the Disciplinary Committee and Appeals Committee.  As alluded to earlier, an appeal to this Court lies against the decision of the Appeals Committee and not Disciplinary Committee.

I am not persuaded by Appellant’s submission that it was a typographical error to state Disciplinary Committee as the catch phrase

“It will be contended that the Appeals Committee erred in one or more of the following:”

shows that all that followed is a contest of the Appeals Committee’s decision.

Grounds of appeal should be precise and concise.  As stated earlier these grounds were drafted not by a lay person but a legal practitioner.  Why should the Court and the Respondent be made to guess as to what exactly is being challenged.  Why should the grounds be explained first instead of just being substantiated through submissions?

I find that the points in limine raised by Respondent have merit and uphold them.

Consequently, it is ordered that the appeal be and is hereby struck off as it is improperly before the Court.

NYANDORO & MUKWEWA – Appellant’s legal practitioners

DUBE MANIKAI & HWACHA – Respondent’s legal practitioners