Faji Kazembe v Shamva Gold Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/104/15
HARARE ON 16 FEBRUARY, 2016
th
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/104/15

HARARE ON 16th FEBRUARY, 2016		             		 CASE NO. LC/H/710/15

AND 4TH MARCH, 2016

In the matter between

FAJI KAZEMBE						–	APPELLANT

And

SHAMVA GOLD MINE 					-	RESPONDENT

Before The Honourable F.C. Maxwell, J.

For Appellant   :	In person

For Respondent: 	Mr T. Tandi (Legal Practitioner)

MAXWELL, J.

At the hearing of this matter I dismissed the appeal and indicated that reasons would follow. These are they;

This is an appeal against a decision of the Disciplinary Committee dismissing appellant. Appellant was employed by Metallon Gold Zimbabwe (Pvt) Limited which operates Shamva Mine. He was charged of theft, gross incompetency and gross negligence in terms of the Code of Conduct. Appellant, who was employed as a Senior Gang Leader was working in a shift in the Smelting Room in May 2015. He left his subordinates to work without supervision and gold slime was stolen.

A hearing was conducted. Appellant was convicted of all the charges except theft. He was dismissed from employment. An internal appeal was not successful and dismissal was confirmed. Aggrieved, appellant noted an appeal to this Court on the following grounds;

Respondent charged appellant with multiple charges.

He was instructed by his senior supervisor to do the job he was doing therefore the charge of gross negligence falls away.

In the present matter the element of habitual and substantial neglect of duty does not exist as he was not charged for the same offence.

In an affidavit filed together with the Notice of Appeal, it is stated that there is no evidence that appellant was directly involved and that he was made a sacrificial lamp (sic) by his superior incompetent supervisors.

The response indicates that appellant cited a non-existent party and that the appeal does not raise any substantive grounds of appeal. Further it is stated that appellant is challenging findings of fact without demonstrating that such findings are irrational as to amount to a misdirection and therefore the Court cannot lightly interfere with such factual findings. It is further submitted that the appeal has no merit and should be dismissed with costs.

Appellant was represented by the Associated Mine Workers Union from the filing of the appeal. However on the date of the hearing he appeared as a self-actor as his representative was not available ad he was confident enough to prosecute his appeal.

The appeal has no merit at all. Appellant accepts that the respondent is wrongly cited. He is aware that the proper name of the respondent is Metallon Gold Zimbabwe. When it was pointed out to him that the grounds of appeal do not raise substantive issues, he blames the trade union. He also blames the trade union for citing the wrong respondent. Appellant displayed an attitude of a litigant who leaves the prosecution of his matter totally in the hands of his representative. Clearly he was not involved in the preparation of the papers filed before this Court.  The words of ZIYAMBI JA in Innocent Kadungure v Cheryl Chandi Kadungure SC 19/07 are apposite. On page 6 of the cyclostyled judgment. She states;

“There is a certain degree of watchfulness which is expected of a client who has given instructions to his legal practitioner to act on his behalf. He is obliged to take an active part in ensuring that his case is being prosecuted with due diligence. There is a degree to which he cannot sit back and leave the matter in the hands of his legal practitioner. He must ensure that he is being kept informed of the progress of his case and change his legal practitioner if necessary in order to ensure that his case receives the attention it deserves. He must exercise vigilance if he is not to suffer the consequences of his legal practitioner’s incompetence and negligence”

Even though reference is made to a legal practitioner in the quotation above, it is equally applicable to a representative as in this case, from a trade union. Appellant did not act as expected of a diligent litigant. See Elizabeth Mutizhe v Loveness Axcillia Ganda and Others SC 17/09. He cannot escape the consequences of his representative’s actions.

In any event, the appeal seeks no challenge factual findings. Appellant has not demonstrated that the findings complained of are outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at that decision. See Nyahondo v Hokonya and Others 1997 (2) ZLR 475. For that reason the appeal cannot succeed.

WHEREFORE I ordered as follows;

The appeal be and is hereby dismissed.

Kantor and Immerman – respondent’s legal practitioner