Guardian Security Services (Pvt) Ltd v Stephen Madora & 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/14/2016
MUTARE, 27 MAY 2016 &
CASE NO LC/MC/66/2015
8 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/MC/14/2016

MUTARE, 27 MAY 2016 &					    CASE NO LC/MC/66/2015

8 JULY 2016

In the matter between

GUARDIAN SECURITY SERVICES					APPELLANT

(PVT) LTD

Versus

STEPHEN MADORA & 3 OTHERS					RESPONDENTS

Before the Honourable L M Murasi J

For the Appellant	B Dhlakama  (Legal Practitioner)

For the Respondents	 J Muwonda (Trade Unionist)

MURASI J:

The respondents were employed by the appellant as security guards. Following the respondents’ visit to the appellant’s offices in Harare to claim arrear salaries, the respondents were charged with absenteeism and were dismissed. The matter ended up in arbitration and the arbitrator found in favour of the respondents. The appellant is dissatisfied with the award and has appealed to this court.

The appellant’s grounds of appeal were in elegantly formulated as follows:

The learned arbitrator in finding that the appellants noted in contravention of the National Code of Conduct, Statutory Instrument of 2016. There was no specific provision that the appellant is alleged to have contravened.

The learned arbitrator erred in finding that the branch manager participated in the disciplinary proceedings. The branch manager only communicated the decision of the employer as he is in charge at Mutare. The hearing was conducted by Mr Bhegedhe.

The Notice of Appeal was filed by the appellant’s legal practitioners of record. The first ground of appeal, apart from the inelegant language used does not show what point of law the court is being requested to determine. Secondly, the appellant quotes a statutory instrument which does not exist. This clearly shows that the ground of appeal is defective. The respondents brought to the appellant’s attention that the first ground of appeal was defective, but the appellant did not do anything to rectify the matter. In the second ground of appeal, the appellant takes issue with a finding of fact by the arbitrator. As is apparent from this ground of appeal, there is no averment of a gross misdirection on the part of the arbitrator so as to amount to a point of law. Mr Dhlakama conceded this fact during the course of the oral hearing.

Mr Dhlakama firstly sought condonation for the late filing of the Assumption of Agency. This was granted by the court. He stated that he abided by the heads of argument filed of record after he had withdrawn the “Supplementary Heads” which had been unprocedurally filed with the court. He further submitted that the arbitrator had erred in making a finding that the Branch Manager had participated in the hearing when in fact it was Mr Bhegedhe who had conducted the hearing. It was further submitted that the letters of dismissal were communicated by the appellant’s representative. It was further argued that proper procedures were followed when the hearings were conducted.

Mr Muwonda for the respondents stated that the appellant had not complied with the Rules of the Court when it filed its Notice of Appeal in that no Assumption of Agency was filed. It was further submitted that the appeal does not comply with section 98 (10) of the Labour Act [Chapter 28:01] in that no points of law are raised.

Mr Muwonda further stated that the first ground of appeal, apart from citing a wrong statutory instrument, was ambiguous. It was further argued that the reason for the decision was given by the arbitrator on the last page of the award. It was further averred that one Jangano, who compiled the documents forwarded to the respondents, was the complainant during the hearing.

The court is of the view that the Notice of Appeal does not raise any points of law. In the first ground of appeal, apart from being defective, it is not shown what the court is being called upon to determine. Grounds of Appeal must be clear and concise. The first ground of appeal lacks the particularity required of the ground of appeal requiring the attention of an appellate court. The second ground of appeal alleges that the arbitrator erred in making the finding that he did. It is trite that there should be an averment of a gross misdirection for it to amount to a point of law. In Sable Chemical Industries Limited v David Peter Easterbrook S I 8/10, GARWE JA made the following observations:

“The last ground of appeal is that the court a quo erred in not finding the respondent guilty of the serious offence of gross negligence or inefficiency in the performance of his duties. Again, in the absence of a suggestion that there was a misdirection on the facts, that ground is clearly on fact. For example in a criminal case whether the facts as proved establish mere theft or robbery is a question of fact and not law.”

Further at page 11 of the cyclostyled judgment, the Learned Judge states thus:

“In order to get around this provision, some legal practitioners couch their grounds of appeal so that, on the fact of it, they appear to raise issues of law when in fact they do not.”

In casu, I am of the considered view that the grounds of appeal do not raise any question of law. The appeal should be dismissed on that score.

However, the court would want to determine the matter as to whether the respondents were properly convicted. The record shows that one Bhegedhe presided over the hearings in respect of all the respondents. The record further shows that no witnesses were called to testify. The record shows that the respondents raised the issue that they were off duty when they undertook the journey to Harare. No evidence was adduced to show that they were supposed to be on duty on the day in question. The record does not show that Mr Bhegedhe made a finding that the respondents were guilty of the charges preferred against them. The record does not show whether or not the respondents were invited to address the hearing officer in mitigation. In short, the record shows that the hearing leaves a lot to be desired in how it was conducted.

I will dwell on the issue of conviction.

The respondents alleged that they were off duty. It was then the appellant’s duty to lead evidence to prove on a balance of probability that the respondents were supposed to be on duty. Such evidence is missing and was not adduced by the appellant. Can it be said that the appellant proved its case against the respondents. I think not. In West Rand Estates Ltd v New Zealand Insurances Company Limited 1925 AD 245, KOTZE JA had this to say at 263:

“It is not a mere conjecture or slight probability that will suffice. The probability must be of sufficient force to raise a reasonable presumption in favour of the party who relies on it. It must be of sufficient weight to throw the onus on the other side to rebut it.”

It is my view that the appellant had a pre-conception as to what result should come from the hearing. This is not the way to proceed during hearings. In a hearing one must examine the evidence first and see what it proves rather than arriving at a pre-conception first and see whether it can be supported.

The disciplinary committee hearing left a lot to be desired and its findings cannot be supported.

In the result, for the afore-stated reasons, the court finds that the appeal lacks merit and ought to be dismissed.

The court makes the following order:

The appeal, being devoid of merit, is accordingly dismissed.

The arbitral award of Honourable Nani be and is hereby upheld.

Each party to meet its own costs.

Dhlakama B Attorneys, appellant’s legal practitioners