Dan Magwenzi Zvobgo v Chegutu Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/17/2021
HARARE, 2 OCTOBER, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/17/2021

HARARE, 2 OCTOBER, 2020		     	     CASE NO. LC/H/REV/34/20

AND 26 MARCH, 2021

In the matter between:-

DAN MAGWENZI ZVOBGO						Applicant

Versus

CHEGUTU RURAL DISTRICT COUNCIL				Respondent

Before The Honorable L. Hove, Judge:

For Applicant:				Warara & Associates (Legal Practitioner)

For Respondent:				Dube, Manikai & Hwacha (Legal Practitioners)

HOVE J:

This is an application for review.

Background

The applicant is employed by the respondent as its Chief Executive Officer from 2014.

Disciplinary proceedings were commenced against applicant on 25 February 2020 as a result of which the applicant was suspended pending disciplinary proceedings. He is, in these proceedings challenging the manner in which he was suspended and the

employer’s decision to institute disciplinary proceedings against him. The applicant prays for reinstatement without loss of salary and benefits.

Grounds for review

The applicant’s grounds for review are that;

The decision to suspend and discipline him is illegal in that;

There was no requisite request by 1/3 of the councilors before convening a special meeting as required in terms of section 46 of the Rural Districts Council Act [Chapter 29:13].

The meeting was only convened upon the giving of one day’s notice instead of the 6 days’ notice required in terms of section 46 (4) of the Act.

The Act requires that notice of the meeting be in writing but in this incidence it was given via a social media platform.

The decision to institute disciplinary proceedings against the applicant was not an issue on the agenda. Section 46 (4) of the Act bars the discussion of any other business of such a special meeting except issues on the agenda.

The Respondent’s legal practitioners are not part of legal services providers acquired by council in terms of the Procurement laws that are applicable.

The decision to discipline and suspend applicant was grossly irregular in that the resolution was not reached pursuant to a majority vote by the councilors. One councilor moved the vote and another seconded which is contrary to the governing provisions.

Basis of the application

The applicant argues that the decision to suspend and discipline him was grossly irregular and unlawfully arrived at and the irregularities that surrounded the commencement of the disciplinary proceedings are so grave as to render the suspension null and void.

The opposition

The respondent opposed the allegation that there were irregularities. They argued that the applicant himself called the meeting and it is illogical to now argue that the meeting was irregularly called as this can only be visited at his own door step. The applicant had also not himself given notice about the issues concerning the disciplinary issues. He can therefore not complain that notice was not given.

The failure to give 6 days’ notice did not prejudice him and the decision to suspend the applicant was endorsed at a special full council meeting. The discussion of an issue that was not on the agenda was also not irregular as it was an issue to deal with the attachment of council property. The Respondent also argued that the fact that there was no written notice for the meeting was caused by the applicant himself who called the meeting via whatsapp. He cannot complain. The fifth ground for review that Warara and Associates are not part of the legal service providers is not an issue properly before the court as this is not a proper ground for review.

The issue

The issue that arise for determination in whether or not there was any irregularity in the manner in which the meeting was called and in the manner and nature of the deliberations. Further, whether or not there was any irregularity in the resultant resolutions. If there were no irregularities, then that would be the end of the matter. If however it is found that there were irregularities, then another issue would arise, that is, what would be the effect of the irregularities on the validity of the action taken.

Ground for review No.1

The first ground for review alleges that there was no request by at least 1/3 of the councilors before the meeting was convened. It was submitted that section 46 (3) of the Rural District Councilors Act [Chapter 29:13] (the Rural District Councilors Act) prescribes as follows;

“The Chairman of the council may at any time and at the request of no fewer than 1/3 of the councilors, shall call a special meeting of the council”.

It was submitted that this statutory provision was not complied with. The meeting was a special meeting and it could only be convened when the requirement was met. In casu, it was argued that there was no record that at least 1/3 of the councilors had requested for the meeting. In the absence of such a request, the meeting could not be a lawfully called meeting. It was submitted that the meeting was unlawfully convened hence it was null and void.

The fact that there was no request by 1/3 of the councilors is admitted by the respondent when in paragraph 6 of their opposing affidavit they denied that there were any irregularities. The denial is on the basis that it was the applicant who through the administration officer called for the urgent meeting. Clearly, there is no averment that there were 1/3 of the councilors who called for the meeting. It was just one person who called for the meeting through the administration officer.

The respondent, in their response argue that council property had been attached and somehow the applicant was responsible. If this was the case, there was nothing that would have stopped the council from following statutory provisions in seeking to meet to discuss the applicant’s conduct, statutory provisions cannot and could not be dispensed with. The existence of a genuine case for discipline ought to have moved the council to follow the statutory provisions in disciplining its employee. This, as stated earlier, is an application for review the court in such an application must consider the procedural irregularities in the proceedings. It has not been disputed that section 46(3) provides that the chairman of the council may at the request of no fewer than 1/3 councilors call a special meeting of the council. It has been admitted that the meeting was called by just the applicant through the administration officer, a  procedural irregularity, has thus been established in the manner the meeting was called.

The respondent had sought to try and amend its position and to deny that the meeting was not a special meeting called in terms of section 46(3). The Respondent’s opposing affidavit had not disputed the fact that it was a special council meeting. The procedure was thus not followed for such a meeting and there was a procedural irregularity. The respondent could not blow hot and cold. They had not challenged that it was a special council meeting in their opposing papers. A litigant can only take one position in proceedings and cannot turn around and contradict themselves. See in this regard the case of Alliance Insurance v Imperial Plastics (Private) Limited SC 30/17.

Ground for review No.2

The second ground for review was that in terms of section 46 (4) of the Rural District councils Act, a special meeting can only be convened upon the giving of 6 days’ notice of same. The meeting in casu was called upon a day’s notice instead of the 6 in terms of law.

The respondent argues that the notice is to be given to the councilors and not the applicant, therefore he suffered no prejudice. It was further submitted that he is the

one who called for the meeting and cannot argue that is was irregular. The fact that the councilors attended meant that they waived their right to be given six days’ notice. I do not think it is right to argue that the councilors waived their rights. They are not a party to these proceedings. In any event it has not been shown that the councilors, with full knowledge of their rights decided to abandon the rights. The test for waiver as stated in Barclays Bank of Zimbabwe v Binga Products 1984 (2) ZLR 76 was not satisfied. In any event one can to waive statutory requirements.

Provisions governing the calling of special meetings ought to be followed if the meeting is a special meeting. That is what the law prescribes. Failing to follow the laid down statutory provisions renders the meeting unlawful for failure to comply with the statutory provisions. The High Court in the case of African First Renaissance Corporation Limited v ACM Investments and Others HH95-08 underscored the need to follow procedures.

The applicant has correctly, in my opinion submitted that the extant violation of the Rural District Act is a procedural irregularity that has nothing to do with the participating individuals. The procedural irregularities cannot be sanitized, or otherwise excused by the fact that the applicant was involved. The legal point made and which remained undisputed is that a statute was violated.

Section 46(4) of the Rural District Councilors Act provides in clear terms that;

“written notice of any special meeting called in terms of subsection (3) shall be sent to each councilor at least 6 days before the meeting and shall specify the object of meeting, and no subjects other than those specified in such notice shall be discussed at such meeting.”

The 6 days’ notice requirement (to the councilors) was not given. There was a therefore a procedural irregularity. The failure to give notice violated the Rural District Councils Act and it is clear that the meeting was irregularly convened and therefore anything flowing from it is also flawed. See Stalap Investments (Pvt) Ltd v Willoughby Investments (Pvt) Ltd HH 726/19.

Ground for review No.3

The third ground for review is that no written notice was given in terms of the Rural District Councils Act. The meeting was called via a social media platform (whatsapp).

The respondent again argues that it was the applicant who called the meeting via a social media platform and did not give the written notice as such he cannot complain.

In my view, the respondent misses the point of review proceedings. The process is to establish whether or not there were procedural irregularities. See Hwange Colliery Company Limited v Makute and another SC 46/16. The issue is, does the law require that notices be given?. Is the requirement to give notice a statutory provision and can statutory requirements be dispensed with.

The respondent’s response to this allegation is an explanation as to why written notices were not given. In a way it is an admission that the statutory provisions were not complied with. There was thus an irregularity. Section 46(4) of the Rural District Councils Act is prescriptive in that written notice of any special meeting must be given. The ratio decidendi in Madzivire and others v Zvarivadza and others SC 10/06 where the giving of notice was required by statute but was not given was that the failure to give notice of a meeting where such notice is a statutory requirement rendered the decision made an invalid one.

Was the issue of discipline on the agenda

The other ground for review raised is that the decision passed to institute disciplinary proceedings against applicant was not on the agenda for that special meeting.

The respondent in response submitted that the fact that this was not on the agenda does not render the meeting defective because it was the issue of attachment of council property that was being discussed and exposed applicant’s negligence hence the decision to suspend him.

Section 46(4) provides that the object of the meeting shall be specified and no subjects other than those specified in such notice shall be discussed at such a meeting.

The subject specified was the attachment of council property. Resolutions in connection with the attachment of council property would have been in order assuming all other regulations were met. Had the council found it expedient to charge the applicant, there was nothing that could have barred the chairman from calling a special meeting to discuss misconduct issues against the applicant. In failing to procedurally raise the issues of discipline against the applicant, the council acted contrary to the statutory provisions that govern its proceedings and hence its actions were unprocedural.

Was there a majority vote to discipline the applicant

The resolution to discipline and suspend the applicant was also irregular in that there was no majority vote by the councilors but the minutes show that one councilor moved the motion and another seconded. Nothing on record showed that there was a majority vote by the councilors. Section 46(2) of the Rural Districts Councils Act provides that;

“Save as otherwise provided in this Act, any question before a meeting of a council shall be decided by resolution passed by a majority of the councilors present at the meeting and, …………”

The record does not show that the resolution was passed by a majority of the councilors present and in that regard violates or fails to comply with the statutory provisions that govern it.

Was the appointment of Warara & Associates proper?.

The final issue raised is that the respondent unprocedurally appointed Warara and Associates to act in its behalf. Warara and Associates is not part of the legal services providers that were required by council through tender. It was submitted that the acquisition of Warara and Associates as a legal service provider is itself unlawful and amounts to a violation of the Public Procurement and Disposal of Public Assets Act [Chapter 22:23]. In response, the respondent submitted that this is an invalid ground for review and it does not prejudice the applicant. There is no averment that Warara and Associates is part of the legal service providers acquired in terms of law.

The argument that this is not a procedural issue has not been expounded on. It certainly is an issue of procedure to use an unlawful service provider and I accept the argument that the acquisition of Warara and Associates as legal service providers is unlawful. Warara and Associates are encumbered by a legal disability and all its actions on behalf of the respondent are null and void as they stem from an illegality.

The effect of the procedural irregularities

It is true that it is a part of our law that not all procedural irregularities can vitiate proceedings. One has to show that they have been prejudiced by such irregularities. See Nyahuma v Barclays Bank of Zimbabwe SC 67/05 Rajah & Rajah (Pty) Ltd and others v Ventersdorp Municipality and others 1961 (4) SA 402 ad.

There must however be made a distinction between a mere failure to follow procedure and a failure to comply with statutory provisions where statutory provisions are couched in a manner that is merely directory, one may choose not to act in the manner prescribed as this is permissible. Where however, mandatory provisions of the law are indicated, compliance with the prescribed course of action is obligatory imperative and strict, failure to comply with a mandatory provision of law invalidates the thing done and is fatal.

See in the regard the case of Aid Duct Fabricators (Pvt) Ltd v Machado and sons (Pvt) Ltd HH 54/16.

The provisions that the respondent failed to comply with are couched in peremptory terms making compliance obligatory, imperative and strict.

In terms of section 46(4), written notice shall be sent to the councilors at least 6 days before the meeting and shall specify the object of the meeting and no subjects other than those specified shall be discussed.

Section 46 (2) also uses the word shall in outlining manner of deciding by resolution,

It provides,

“any question before a meeting of a council shall be decided by resolution passed by a majority of the councilors present at the meeting………..”

The use of the word shall as opposed to the use of the word may in statutory provisions denotes mandatory action and compliance with the prescribed course of action is obligatory imperative and strict. Failure to comply with the mandatory statutory provisions invalidates the thing done. See also Moyo v Zvoma SC 28/10 and also the case of Macfoy v United Africa Company Limited (West Africa) PC 27 Nov 1961 is also authority to the effect that when an act has been invalidated it becomes null and void for all intents and purposes. Nothing can stand on it.

This court is also not imbued with the general latitude to condone violation of statutes. The court must be guided with the words of the statute in question and that is whether the words employed are merely directory in which case one may chose to comply and none compliance would not be fatal. Where the legislature employs the word shall as is the case in the provisions under consideration, failure to comply is fatal and the court cannot condone.

In the final analysis there was failure to comply with the provisions of law and the failure renders the acts by the respondent in the meeting a nullity and its resultant resolution is also a nullity. The use of the unlawful legal services also renders the actions done by Warara and Associates a nullity.

The court will, in the result, make the following order;

The application for review succeeds in the following terms;

The decision of the respondent to suspend the applicant from employment and institute disciplinary proceedings against him be and is hereby set aside.

The applicant be and is hereby reinstated to his employment without loss of salary and benefits.

Respondent shall pay the applicant’s costs of suit.

Dube, Manikai & Hwacha	-	Applicant’s legal practitioners

Warara & Associates	-	Respondent’s legal practitioners