Fungai Jena v NEC For Food And Allied Industries

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/841/2014
HARARE, 26 NOVEMBER 2014 &
CASE NO
JUDGMENT NO LC/H/841/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/841/2014

HARARE, 26 NOVEMBER 2014 &		          CASE NO LC/H/597/2014

19 DECEMBER 2014

In the matter between

FUNGAI JENA							APPELLANT

Versus

NEC FOR FOOD AND ALLIED INDUSTRIES			RESPONDENT

Before The Honourable P Muzofa   :  Judge

For the Appellant	      T Marume   (Legal Practitioner)

For the Respondent   F Mahere (Advocate)

MUZOFA J:

On the date of hearing this appeal, a preliminary point was raised by the respondent that the appellant had failed or neglected to comply with the order of the disciplinary authority.

The appellant was employed as the General Secretary of the Respondent. The appellant was charged and appeared before a disciplinary authority. The appellant was dismissed and ordered to hand over all of the respondent’s assets in his possession no later than 4.00 p.m. on 5 June 2014. The appellant noted an appeal to the Appeals Committee. He however had not handed over the assets. The respondent raised a preliminary point before the Appeals Committee that the appellant had failed to comply with the disciplinary authority’s order and therefore should not be heard. The appeals committee did not decide on the issue citing it was unnecessary to address the issue having addressed the merits of the appeal.

The respondent submitted that the order of the disciplinary authority was still valid, it had not been set aside. Further to that it was submitted that in terms of section 92 E (2) of the Labour Act [Cap 28:01] “the Act” an appeal does not suspend the determination appealed against.

The appellant in response argued that the preliminary point raised should be dismissed on the basis that the respondent had instituted proceedings before the High Court to recover the said property. Secondly that the Appeals Committee had dismissed the preliminary point and the respondent had not appealed against that decision. I must point out that the second argument is based on an misinterpretation, the Appeals Committee did not dismiss the preliminary point, but it found it unnecessary to deal with the preliminary point. This argument therefore falls away. It must be pointed out that the Appeals Committee was enjoined to make a determination on the preliminary issue. Instead it proceeded as if there was no such application before it. The Appeals Committee erred in that regard see Grain Marketing Board v Martin Muchero SC-59-07 and Heywood Investments (Pvt) Limited t/a GDC Haulers v Pharaoh Zakeyo SC-32-13.

It was not disputed that the appellant was ordered to surrender the respondent’s assets by a certain date and he failed to do so. This was an order by   an authority. The appellant raised issue that the respondent has made an application to the High Court to recover the assets and therefore this application should fail.

The application before the High Court although dealing with the issue of the said assets does not invalidate the order of the disciplinary authority. The order of the disciplinary authority remained in force despite the fact that the Appeals Committee did not make a ruling on it.

The appellant has dirty hands, he cannot seek to use the law that he is not willing to abide with by defying the order of an authority. The appellant has recourse to purge his contempt if he so wishes and then approach this court with clean hands.

From the foregoing the inescapable conclusion is that the preliminary point succeeds. Accordingly the following order is made:

The appeal be and is hereby struck off the roll.

No order as to costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Chinawa Law Chambers, respondent’s legal practitioners