Musa Mkumbuzi v Develop-It Zimbabwe t/a Maranatha Junior School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/768/2016
HARARE, 17 OCTOBER 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/768/2016

HARARE, 17 OCTOBER 2016		        CASE NO. LC/H/REV/45/16(APPEAL)

AND 2 DECEMBER 2016

In the matter between:-

MUSA MKUMBUZI						Applicant

And

DEVELOP-IT ZIMBABWE t/a	 			Respondent

MARANATHA JUNIOR SCHOOL

Before The Honourable F.C. Maxwell, Judge

For Applicant		Mr T. Deme (Legal Practitioner)

For Respondent		Mr I. Mataka (Legal Practitioner)

MAXWELL, J:

Applicant was employed by Respondent as a teacher. On 23 March 2016 she was arraigned before a disciplinary authority on allegations of misconduct she was found guilty and was dismissed from employment.  On 9 May 2016 she noted an appeal to this Court on the following grounds.

The employer erred at law by using a wrong code of conduct in the disciplinary process.

The employer erred in concluding that Appellant had committed a dismissible offence.

The employer erred in relying on hearsay evidence to find Appellant guilty of the charges.

The employer erred by accepting the evidence of a sole witness and failing to call the eye witnesses when it was well within its means to call eyewitnesses and provide material evidences (sic).

Appellant prayed for the reversal of the dismissal and order for reinstatement without loss of salary and benefits.

On the same day Appellant applied for the review of the proceedings on the basis that the employer did not use the prescribed Code of Conduct in the proceedings.  She asserted that in terms of the contract of employment the employer is bound to us the Code and procedures for the educational institutions.  Applicant also alleged bias on the part of the panelists.

Applicant prayed for the setting aside of the decision and an order for reinstatement.

On 31 May 2016 notices of responses were filed.  In relation to the grounds of appeal, Respondent raised a point in limine that Appellant ought to have approached a Labour Officer in terms of Section 8 (6) of SI 15/06 within seven days. Respondents, on the merits pointed out that the first ground of appeal is a ground for review as it contains a procedural complaint.  It further pointed out that the rest of the grounds of appeal are improper as they are factual and there are no allegations of a gross misdirection to amount to an error in law.  On the application for review, Respondent asserted that it was correct in using the NEC Code of Conduct.  Respondent also asserted that there are bald and unsubstantiated claims of bias and predetermination.

Appellant filed her papers as a self-actor.  On 26 September 2016 Messrs Chibune and Associates assumed agency on her behalf.  The matter had to be postponed that day to enable Counsel for Appellant to file heads of argument.  From the time Respondent filed notices of response, it was represented by Messrs Chambati, Mataka and Makonese.  In terms of Rule 19 (2) (a) (ii) Respondent was required to file heads of argument at the time when the notice of response was filed as Appellant was not represented by then.  Respondent did not comply with this requirement.

On 14 October 2016 Counsel for Appellant filed heads of argument raising a point in limine that Respondent is barred for non-compliance with Rule 19 (2) (a) (ii).  At the hearing of the matter Counsel for Appellant persisted with the point in limine.  Counsel for respondent was of the view that he should be given time to file heads of argument in response to the Appellant’s heads of argument.  In his view Rule 19 (2) (a) (ii) was immaterial and he ought to have been allowed to file heads of argument in response. I find Counsel for Respondent’s attitude appalling.  Despite it being pointed out that he had not complied with the rules, he did not seek to be condoned.  All he did was to insist on being given an opportunity to respond to heads or argument.  Such wanton disregard of the rules of this Court will not be tolerated. Consequently the Respondent was barred and could not be given audience.

Counsel for Appellant made submissions on the merits of both the appeal and the application for review.  In the absence of submission from Respondent or heads of argument controverting the submission the Court was left with no option but to grant both appeal and application for review unopposed.

Consequently the following order is appropriate.

The appeal be and is hereby upheld.

The application for review be and is hereby granted.

The decision of the disciplinary authority be and is hereby set aside.

Respondent be and is hereby ordered to reinstate Appellant without loss of salary and benefit.  If reinstatement is not an option, Respondent is to pay damages in lieu of reinstatement the quantum of which is to be agreed between the parties. If the parties fail to agree on the quantum either party can approach the Court for quantification.

Respondent be and is hereby to pay costs of suit.

Chibune & Associates, applicant’s legal practitioners

Chambati, Mataka & Makomnese, respondent’s legal practitioners