Oscar Hamadziripi Hapanyengwi v Dr Nyambo N.O. & Zimbabwe Open University

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/20/2022
HARARE, 19 OCTOBER 2021
28 JANUARY 2021
CASE NO LC/H/52/21
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/20/2022

HARARE, 19 OCTOBER  2021&			   CASE NO LC/H/52/21

28  JANUARY 2021

In the matter between: -

OSCAR HAMADZIRIPI HAPANYENGWI		APPLICANT

AND

DR NYAMBO N.O.						1st RESPONDENT

ZIMBABWE OPEN UNIVERSITY			2nd RESPONDENT

Before the Honourable Kudya J

For the Applicant			E. Homera (Legal Practitioner)

For the 1st Respondent		No Appearance

For the 2nd  Respondent		P. Dube  (Legal Practitioner)

KUDYA, J:

Applicant employee approached this court on 3 review grounds namely

Improper constitution of disciplinary Committee

2.1	Grossly irregular disciplinary proceedings based on fact that done after matter

referred to a labour officer per Sec 101(6) of the labour Act.

2.2	Denial of legal representation

3)	Grossly unreasonable findings without evidence.

The Chairperson of the disciplinary Committee was sued in his official capacity so on the date of the review hearing only the employee and the employer appeared to argue the matter.  The employer took points in limine vis grounds 2.1, 2.2, and 3 saying that these were not review grounds.

The employee conceded that indeed grounds 2.1 and 3 were improperly before the court so he abandoned these 2 grounds.  The employer persisted that ground 2.2 vis legal representation was a valid review ground and prayed that the court determines it on the merits.  After hearing parties on that point the court ruled that the issue of legal representation was indeed a review ground.  To that extent it dismissed the point in limine vis the legal representation ground. It indicated that the reasons for the dismissal of the point will appear in the main judgement.  The reason why the court dismissed the objections is that legal representation is simply an issue of process of determining a manner.  The denial or grant of such in the courts view is indeed a procedural component of the matter.  It was thus concluded by the court that the ground on legal representation being a good ground for review had to be determined on the merits.  Having concluded the point in limine what was left to be determined were the merits vis ground 1 and ground 2.2 that is on disciplinary composition and legal representation only.

COMPOSITION

The court observed that the debate in the instant matter arose in the case of Mutungambanje and ZOU LC/REV/24/13 where the applicant in that matter reasoned that the proceedings chaired by a Retired judge were in breach of the ZOU Act which stipulated who could chair the Committee. In that judgment I reasoned that the committee had been improperly constituted and was in breach of the labour Act.  However, when the matter came up on appeal the Supreme Court parties by consent agreed that my judgment be set aside and that the argument which had been raised by the employee be concluded to be meritless.

Counsel for the employer has implored me to repeat my reasoning in Mutungambanje (Supra) arguing that since the order was by consent it did not touch on the merits so my order was regular.  I am however of a different opinion. My view is that since both parties presented before the Supreme and concluded that the disciplinary committee did not have disciplinary powers their concession means that indeed this court was wrong to conclude otherwise.  To that extent this court can not pretend that it is not aware of the presence of the consent order and setting aside the Mutungambanje (Supra) judgment. In the result the court cannot do more than defer to the decision of the Supreme Court which is a superior court to the labour court.  The fact that it was ruled that the argument about of composition had no merit means in instant matter same has no merit. Consequently, grounds is to fail for above reasons

Legal representation

In this regard the employee says he should have been allowed to wait for his legal representative to attend. The record however speaks to continued postponements at his behest thus making a mockery of the legal representation request.  The conclusion therefore becomes that the committee was within its powers to proceed without such legal representation. In sum total thus the review application being without merit should fail.  There is no need to penalise either party with an order of costs so each party would be made to bear their own costs.

IT IS ORDERED THAT

Review application being without merit it be and is hereby dismissed with each party bearing own costs.

Dube – Tachiona and Tsvangirai, Applicant’s Legal Practitioners

DHM Commercial Lawyers, Respondent’s Legal Practitioners