Happias Madzima v Ms Mutsundi N.O. and Health Service Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/108/23
HARARE, 9th JUNE 2022
CASE NO. LC/H/95/22
AND 31st March 2023
In the matter between:-
HAPPIAS MADZIMA
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 9th JUNE 2022

AND 31st March 2023

In the matter between:-

HAPPIAS MADZIMA

And

MS MUTSUNDI N.O.

HEALTH SERVICE BOARD

APPLICANT

1st RESPONDENT

2nd RESPONDENT

Before Honourable B.T. Chivizhe, J:

For Applicant
For Respondents

Mr Z. Dumbura (Legal Practitioner)
Mr. P. Chibanda (Civil Division)

CHIVIZHE, J:

This matter was placed before me as an application for review. It was filed pursuant to Rule 14 of the Labour Court Rules, 2017. The application is opposed. The Respondent party was directed by the Court on the date of hearing, and duly filed its Notice of Response and Heads of Argument on the 15 June, 2022. The parties thereafter requested the court to hand down its judgment based on their written submissions. The following is the Court’s judgment.

Application for review grounds

The application was filed on the basis of the following grounds of review; i. The Disciplinary Authority/trial officer erred at law by proceeding in the absence of the applicant legal practitioner who was attending a family bereavement, a reason that was unreasonable(sic) in the circumstance.

ii. The Disciplinary Authority/trial officer erred by refusing a postponement when it was patently clear that it is not the Applicant’s problem that caused the postponement but the complainant’s problem who failed to hand over the papers in time.

iii. The Disciplinary Authority/trial officer erred at law by not giving reasons for the ruling when it dismissed the Applicant’s application for postponement.

iv. The Disciplinary Authority erred at law by not giving the Applicant a chance to cross examine the witness as required by procedure.

v. The Disciplinary Authority erred at law by not giving the Applicant the opportunity to lead evidence to defend himself and also call witnesses in his defence.

vi. The Disciplinary Authority/trial officer erred at law by not giving the Applicant’s to make submissions in mitigation after it found him guilty as provided for by law and procedure

The Respondent through its papers is opposed to the application. Through the Opposing Affidavit of Angelbert Mbengwa, the Acting Executive Director for the Health Service Board, the Respondent has responded to the specific grounds of review. In respect of grounds 1 – 3, Respondent submits that the Applicant did not request the reasons from the Disciplinary Authority for their refusal to grant the postponement as sought. The Applicant is also said to have failed to indicate any prejudice suffered as a result of such denial. The Respondent’s attitude is Applicant could have also utilised the services of other legal practitioners at the law firm on the date of hearing rather than seek for a postponement.

In regards ground of review 4 -5 Respondent contends that Applicant was never denied an opportunity to call witnesses or cross-examine Respondent’s witnesses. The Respondent contends that from Applicant defence and narration inside the record of proceedings it would not have been possible for him to call any witnesses. In regards the last ground Respondent contends that it was not obligated to hear mitigation and it is not such a serious procedural error which can vitiate the penalty.

**Evaluation**

After a perusal of the grounds for review and a consideration of the parties submissions there are in my view three issues for determination before the court;

(i) Whether or not it was reasonable for the Disciplinary Authority to reject the application for postponement.

(ii) Whether or not there were procedural irregularities as referred to by the Applicant

(iii) What is the remedy, if any?

I proceed to determine the issues as presented.

**Whether or not it was reasonable for Disciplinary Authority to reject the application for postponement**

The records shows that the Applicant is a former employee of the Respondent. He was scheduled to appear for a disciplinary hearing to answer charges that he contravened **Section 4** of the **Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006**. The applicant was being represented by his current legal practitioners. The first hearing was set down for 21st of December, 2021 but was postponed as Applicant had not been timeously served with the papers. The second date of hearing was on the 5th of January, 2022.

Applicant submits that on the 4th of January, 2022 a close relative of his legal practitioner of the record, *Mr Dumbura*, passed on. The relative was scheduled to be buried on the 5th of January, 2022. Another legal practitioner appeared to seek the postponement on behalf of *Mr Dumbura*. Applicant contends that the Chairperson of the Disciplinary Committee dismissed the application without tendering any reasons for so rejecting the application. The matter then proceeded and he was found guilty of the charge. A recommendation for his discharge from duty was thereafter handed down.

In argument Applicant submits that it was improper for the Disciplinary Committee to have dismissed his application. Firstly, the postponement was not of his making, secondly there was a bereavement in his family lawyer’s (*evidence tendered in terms of the burial order*) it was unreasonable for the Committee to have no regard to that. The Applicant also contends that his rights were violated in the process, particularly his right to legal representation by a legal practitioner of his own choice. The Applicant has referred to Section 69(4) of the Constitution as granting him those rights.

Respondent through its opposing papers contends that the decision to refuse postponement did not violate Applicant’s rights at all. In **Carephone (Pty) Ltd** vs **Moreus N.O. and Others** 1999(3) SA 304 (LAC) it was stated that postponement is not granted as a matter of right. It is an indulgence granted by the court to a litigant in the exercise of judicial discretion. In this case postponement had been rejected on the basis that Applicant could well be represented by another lawyer from the same law firm. The lawyer who appeared for him *Mr Chakurira* could have well represented him, instead, he had excused himself immediately after he was told of the decision dismissing the application for postponement, thereby abandoning his duty towards his client.

The Disciplinary Committee also considered the aspect of prejudice to the Respondent. The Committee noted that this was not the first time that a hearing was being postponed at the instance of Applicant. The matter had been postponed initially on 21st of December, 2021 and the Committee was no longer in a position to grant Applicant another indulgence. The Respondent also stood to suffer prejudice due to costs incurred in organising the hearings as well as costs associated with payment of Applicant’s benefits and salary due to the prolonged hearing.

The Disciplinary Committee also felt that the application for postponement had not been made timeously. The Applicant had become aware of the bereavement on the 3rd of January, 2021. He could have written a letter on the 3rd or 4th of January, 2021 but instead chose to appear on the date of hearing with a Legal Practitioner in tour only to inform the Disciplinary Committee that his preferred Legal Practitioner was not available for the day,. The Respondent has referred to **Erasmus Superior Court Practice**, Vol 2 page D1 – 552 A on the principles applicable in applications of this nature. Respondent has also referred to a South African authority in **Carephone (Pty) Ltd** v **Marcus N.O. and Others** referred to supra as to why the approach in labour matters is not on par with the approach in ordinary courts of law. Labour matters being in a class of their own have to be determined fairly and quickly with minimum legal formalisation and there is also the fact that generally no costs orders are issued in the Labour Court. On this basis the Respondent submits that this court cannot interfere with the refusal by the Disciplinary Committee to grant Applicant the postponement as sought.

After considering the parties submissions and upon perusal of the record it is the court’s finding that the refusal to grant postponement was irregular in the circumstances of this case. The Respondent in its submissions has relied largely on South African authorities. The principles that are relevant to an application for postponement in Zimbabwe were however laid out by SMITH J in (case authority) as;

“(i) The court should be slow to refuse a postponement where the true reasons for a party, is non-representation has been fully explained and is not a delaying tactic and where justice demands that the party should have further time for the purpose of preparing his or her case.

(ii) An application for postponement must be made as soon as circumstances justifying same became known to the applicant then the court may in an appropriate case allow an application that has not been timeously made

(iv) An application for postponement must always be bona fide and not merely a tactful manoeuvre for the purpose of obtaining an advantage to which an applicant is not entitled.

(v) Prejudice is the main consideration. Courts must weigh the prejudice to the respondent if the applicant is granted the postponement against prejudice to the respondent. If a postponement is refusal and must consider whatever any prejudice to be caused to the respondent company, be compensation by an appropriate order of costs or in issue other way.

(vi) Where an application for a postponement is not made timeously or the applicant is otherwise to blame but a postponement is nonetheless justified on the circumstances of the case, the court may, in its discretion allow a postponement but direct the applicant pays the wasted costs on higher scale.

It is also correct as submitted by the Respondent that Labour Court, being a specialised court set up to deal with labour matters is driven by different principles. See the recent judgment Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings SC 81/2022 on the approach to be taken by this court not only to applications for postponements but to labour matters generally.


The position remains clear that postponement is an indulgence granted as an exercise of discretion by the Disciplinary Committee.

What is in issue before the court therefore is whether the exercise of discretion by the Disciplinary Committee was reasonable in the circumstances of this case? This court cannot lightly interfere with the exercise of discretion unless it can be shown that there was some error made in the exercise of discretion or that they acted on a wrong principle or allowed extraneous or irrelevant material to guide or affect its discretion.

It is very clear upon a perusal of the record that no explanation was tendered by the Disciplinary Committee for the refusal of the application for postponement. The arguments being presented before this court justifying the refusal to postpone are being presented for the first time. The record shows nowhere where the very reasons were proffered to the Applicant. The Applicant is therefore clearly justified to state that his rights were clearly violated. There was clearly no fundamental fairness in the process.

Although it is conceded the application for postponement was not made timeously it is however clear the reason for so seeking postponement was a valid reason. A litigant is entitled to his right to representation by a legal practitioner of his choice not one who is imposed by the Committee. Section 69(4) of the Constitution guarantees those rights. The explanation for seeking postponement was also one backed by evidence of a burial order. It is granted that this was a second postponement being sought by the Applicant.

There would however be no harm in the Disciplinary Committee allowing for even a short postponement even two days at most i.e. until after burial, if the fact that the Committee was grappling with was the prejudice to the Respondent. The matter would still be resolved expeditiously through a short postponement granted. The court’s finding therefore is that the refusal to grant postponement was grossly irregular in the circumstances. The Disciplinary Authority also clearly failed to give reasons for refusal of postponement. It is a trite position at law that the failure to give reasons for a ruling or judgement is a gross irregularity. See Afaras Mtausi Gwaradzimba vs C.J. Remon 7 Company (Pvt) Ltd SC 12/2016.

Whether or not there were procedural irregularities in the disciplinary proceedings
 The present matter is capable of resolution on the basis of the finding of the irregular decision taken to refuse postponement. The Applicant has however raised several other grounds of review which are based on what transpired at the hearing. This was really unnecessary. For completeness however the court has considered the other grounds. It is worth noting that the Disciplinary Committee did commit procedural irregularities in the conduct of the disciplinary proceedings. Amongst the procedural irregularities so committed by the Disciplinary Committee is the one raised in Applicant’s last ground for review. It is very apparent that the Disciplinary Committee after having found Applicant guilty on the charge proceeded to do mitigation on his behalf. This clearly they could not do. In **Happison Muchechetere** vs **Zimbabwe Broadcasting Compensation (Private) Limited (2) Retired Justice James Devittee N.O. (3) Gibson Munyoro** SC 143/21 GWAUNZA J. stated at paragraph [45] as follows;

“ It would follow from what is set out above that, after it pronounces a verdict of guilty, only the disciplinary authority is mandated to move on to the part of the proceedings the relates to mitigation, aggravation and sanction. Accordingly, the assumption of this mandate by someone who, as happened in casu, did not preside over the proceedings nor participate as a member of the disciplinary panel, would be highlight irregular. That the person happened to have been the employer of the appellant and therefore an interested party in the proceedings, could only have served to compound the irregularity.”

It is apparent that the Disciplinary Authority decision to refuse postponement was irregular in view of the circumstances. The procedural irregularities such as the decision to deny the Applicant an opportunity to self-mitigate after finding him guilty also serve to render the whole proceeding as a nullity.

In the result the following order is made;

1. The application for review succeeds.
2. The determination of the Disciplinary Authority be and is hereby set aside.
3. The applicant is to be reinstated without any loss of salary benefits.
4. The respondent in its own discretion conduct fresh disciplinary proceedings against the applicant.


Zimudzi and Associates, Applicant’ Legal Practitioners
Civil Division of the Attorney General’s Office, respondent’s Legal Practitioners
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