Langton Mukomberanwa v Disciplinary Committee of the City of Harare and City of Harare

IN THE LABOUR COURT OF ZIMBABWE                     JUDGMENT      NO.
LC/H/51/2013
HELD AT HARARE ON20 FEBRUARY, 2013                     CASE       NO.
LC/REV/H/58/2012
In the matter between



LANGTON MUKOMBERANWA                            - Applicant
And
DISCIPLINARY COMMIITTEE                                          - 1st
Respondent
OF THE CITY OF HARARE
And
CITY OF HARARE                                   - 2 nd Respondent



Before The Honourable L. Kudya, President
For Appellant          - Mr. A. Mugandiwa (Legal Practitioner)
For Respondent              - Mr. C. Kwaramba (Legal Practitioner)
KUDYA, L.


      This is an application for a review of the decision of the first
respondent which refused to uphold the exception to the
misconduct charges which had been leveled against the applicant.


      The brief facts of the matter are that on 18 June 2012      the
applicant was brought before the first respondent facing charges of
contravening    SI   171/ 10 which is the 2nd respondent’s code of
conduct . In particular it was alleged that he had committed the
offence of “fighting or riotous behavior “at his workplace contrary to the spirit
of the code of conduct.


When the matter commenced before the first respondent, applicant
raised an exception that the charge he was facing was bad at law in
that the charge preferred did not tally with the facts of what was
alleged to have happened in


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                                             LC/H/51/2013


the matter. He therefore moved the first respondent to uphold the
exception and acquit him accordingly.


   After hearing submissions from both parties, the first respondent
dismissed the exception. Applicant was dissatisfied by the dismissal
of the exception hence he decided to bring the instant review
application.


    The basis of this review is that the first respondent erred grossly
by dismissing the exception so its decision must be set aside. He also
argues that, if the matter is concluded with the interlocutory ruling
on the exception as it stands, he is bound to be prejudiced. He
therefore contends that notwithstanding the undesirability of
bringing up review proceedings on pending matters it is his
considered view that the harm he complains of cannot be left till the
conclusion of the hearing before the first respondent as that would
prejudice him.



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      On the other hand the respondents argue that the review is
without merit. Firstly they argue that the grounds for review which
have been placed before the court do not suffice to have the court
upset the decision reached by the first respondent to dismiss the
exception. In particular they argue that the applicant has not
pleaded any of the general grounds for review that is malice, bias or
gross unreasonableness in the handling of a case.


      They also argue that even if it is held that the first respondent
was wrong in dismissing the exception that would still not entitle the
applicant to the relief that he is seeking. This is so because the
decision to dismiss the exception cannot be held to have been so
unreasonable that no person acting properly and applying his mind
to the facts before him would have come to a similar decision.



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                                  LC/H/51/2013


They contend finally that even if the decision arrived at was wrong
all would not be lost to the applicant as the remedy of appeal would
still be available to
him in the event that the matter is ruled against          him at the
conclusion of the hearing.


      Applicant cited extensively, authority to show that this court is
seized with the powers to determine the review application .In
particular he cited section 89 of the Labour Act Chapter 28:01 which
clothes the Labour Court with the same review powers as the High

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Court in labour matters .He also went on to cite sections 26 to 28 of
the High Court Act Chapter 7:06 which sets out the basis upon
which the review powers can be exercised , the extension of the
application of those powers to the review of the work of the inferior
courts and what the review court should do if satisfied that the issue
before it is indeed a reviewable issue.


     All the authorities cited by the applicant as clothing this court
with jurisdiction to entertain the review are well placed and deserve
no elaboration. What is however critical in this matter is whether or
not the applicant has made out a good case for this court to exercise
its review powers and upset the decision arrived at by the first
respondent or to rule that the decision was so irregular that it
entitles the applicant to be freed from the misconduct allegations
that had been leveled against him.


     The applicant argues that the ruling which was given by the
first respondent on the exception showed that it had preferred
charges which were unsupported by the allegations. His argument is
that since the charge talks about fighting and riotous behaviour and
the allegations do not allege that he fought, it was irregular for him
to be tried on such a charge. He argues that since the charge is
contained in a code of conduct which is a Statutory Instrument the
assumption is that it was crafted by legally competent people. They
would not have put the charge of fighting together with that of
riotous
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                                  LC/H/51/2013



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conduct if they intended the two to be separate. He argues that
since the fighting component is missing in his allegations the charge
that was preferred
against him is therefore excipiable hence the first respondent should
have upheld the exception in that regard. He argues further that the
argument about the codes of conduct being crafted by lay people
does not apply in this case as the respondent has a legal department
staffed by legal minds which should have noticed and corrected the
anomaly of having a charge of fighting and riotous behavior in the
same charge.


     The respondents on the other hand maintain that codes of
conduct whether in the form of simple codes or enactments in the
strict sense of the word need to be narrowly interpreted.       I am
persuaded by the case of Murawo vs Grain Marketing Board SC
60/07 cited by the respondents. In this case Sandura JA concluded
that if a strict interpretation of the code would lead to an absurdity
then code should be construed in a manner which gives effect to
the intention of its drafter.


     Applying that reasoning to the facts of the instant case it is
clear that the drafter did not intend that every allegation of riotous
conduct be preceded by fighting. It is my considered view that the
approach which was taken by the first respondent was the correct
one that the ultimate decision on the matter would be premised on
the cumulative evidence to be led on the matter.


     The court did not lose sight of the argument of legal expertise
advanced by the appellant but as correctly noted by the

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respondents’ counsel issues of the use of the words “and” and “or” to
connote disjunctivenesss or conjunctiveness pale into insignificance
once the true intention of the drafter has been canvassed .I am
therefore satisfied that interpreting the charge in the manner
proposed by applicant would lead to an absurd result hence the
dismissal of the exception was well founded in that respect .


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                                      LC/H/51/2013


     A reading of section 101 of the Labour Act     which deals with
employment codes in general and section 79 of the same Act which
deals with


collective bargaining agreements does not point to a material
difference in the personnel drafting such documents. No specific
reference to a lawyer is made in section 79 even though it is agreed
that before the document is gazetted as a Statutory Instrument it
must pass through some legal hands .That however does not do
away with drafting errors hence the statutory interpretation
provisions which are coined to deal with issues of interpretation of
statutes.


     The court noted also that appellant cited extensively authority
on the aspect that where the decision under review is grossly
unreasonable then it should be set aside. In the light of the views
expressed above that the court is satisfied that there was no
irregularity in the decision by the first respondent in dismissing the
exception, the argument of irrationality therefore naturally falls

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away. In like manner from the submissions by the applicant the
court is not satisfied that any prejudice would be occasioned to him
if the matter is concluded with the ruling of the exception as it
stands.


      In view of the foregoing the court is satisfied that the appellant
has not made a good case for review of the dismissal of the
exception by the first respondent. The application for review must
therefore fail.


It is therefore ordered as follows:


1. The application for review being without merit be and is hereby
dismissed with costs.
2. The first respondent is accordingly allowed to conclude the
hearing relating to the applicant which it had commenced.



Signed
L.Kudya
President Labour Court



Wintertons Legal Practitioners – Appellant’s Legal Practitioners

Mbidzo, Muchadehama and Makoni– Respondent’s Legal Practitioners




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