Netsai Mukava v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/314/14
HELD AT HARARE 13TH MAY 2014
CASE NO
JUDGMENT NO LC/H/314/14
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/314/14

HELD AT HARARE 13TH MAY 2014			CASE NO LC/ORD/H/13/14

& 6TH JUNE 2014

In the matter between:-

NETSAI MUKAVA				Applicant

And

CITY OF HARARE				Respondent

Before The Honourable P Muzofa, Judge

For Applicant		S Chatsama (Legal Practitioner)

For Respondent		R.P. Chimhenga (Legal Practitioner)

MUZOFA, J:

According to the applicant’s founding affidavit this is an application to bar the respondent from conducting an internal disciplinary hearing against her.  In addition the applicant seeks an order to have the disciplinary hearing conducted before an independent body.

The facts giving rise to the application are common cause.  The applicant is employed by the respondent as an Environmental Health Inspector.  In 2008 she was charged for being absent from duty where she was subsequently dismissed from employment in 2009.  The applicant appealed against the decision to dismiss her.  An arbitral award was issued in 2010 in her favour.  In March 2012 applicant was invited to a second hearing arising from the same circumstances of absenteeism.  She was duly convicted and dismissed.  For the second time she appealed against the decision and on 30 May 2013 an arbitral award was granted in her favour.  Applicant appealed to this Court against part of the said award.  On 17 September 2013 this Court granted a default judgment in the following terms

“The matter is hereby remitted to the Disciplinary Committee for the respondent to comply with the Code of Conduct.”

Applicant concedes that respondent was ordered to conduct another hearing complying with its Code of Conduct.   Applicant’s fear is that respondent will again flout its Code of Conduct and dismiss her since it is bent on dismissing her.  The basis of the apprehension being that on two occasions respondent had failed to follow its Code of Conduct.     As a result applicant seeks this Court’s intervention to bar respondent from conducting the hearing and order that an impartial body hear the matter.  Respondent opposed the application on the basis that the order sought for is an interdict, secondly that the matter is res judicata and that the allegations of bias and pre-determination are unfounded.

This court is a creature of statute.  Among its functions set out in section 89 of the Labour Act [Chapter 28:01] section (1) (a) thereof provides

“hearing and determining applications and appeals in terms of this Act or any other enactment.”

This Court has no jurisdiction to grant an interdict see NRZ v Zimbabwe Railways Artisans’ Union and Others 2005 (1) ZLR 341 (S) and PTC v Chizema SC 108/04.  The applicant in this case is in essence requesting for an interdict so that the respondent does not conduct the disciplinary hearing.  This is clear from the draft order paragraph (1) thereof states:

“That the respondent be and is here by barred from conducting an internal disciplinary hearing against the applicant.”

In any event as stated before this Court can only hear matters as outlined in section 89 of the Act.  The practice is that whenever an application is made to this court the applicant also indicates in terms of which section the application is made.  Failure to show which section covers the application is also failure to bring the application within the ambit of section 89 of the Act.  In casu the applicant did not show in terms of which section the application was been made.   This application was made outside the ambits of section 89 of the Act.  This Court therefore has no jurisdiction to hear the matter.

Having made the finding on jurisdiction the matter is disposed there is no need to address the other issues raised.

Respondent has requested for an order with costs.  I believe costs are warranted the position of the law is clear on this aspect.  Approaching the Court to stifle a disciplinary hearing amounts to an abuse of court process.

I therefore make the following order;

The application be and is hereby dismissed with costs.

Hogwe, Dzimirai & Partners, applicant’s legal practitioners