Peterhouse Group of Schools v Tapera Mahefu and Phillip Nyamusakura

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 23 JULY 2024
JUDGMENT NO. LC/H/338/24
CASE NO. LC/H/576/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 23 JULY 2024

AND 19 AUGUST 2024

IN THE MATTER BETWEEN: -

JUDGMENT NO. LC/H/338/24 CASE NO, LC/H/576/24

PETERHOUSE GROUP OF SCHOOLS	APPELLANT AND

TAPERA MAHEFU	FIRST RESPONDENT

PHILLIP NYAMUSAKURA	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant	Mr. F. Mahere

For Respondents	Mr. A.T. Nhidza

MURASI J.,

BACKGROUND

Respondents were employed by the Appellant as Game Scouts. It was alleged that during their duties, Respondents had connived with certain persons whom they are alleged to have granted access to Appellant’s premises for the purpose of poaching. The Respondents were found guilty of misconduct. An internal appeal failed, and Respondents approached the respective NEC for redress. The NEC overturned the decision of the internal appeals committee. Appellant is dissatisfied with the decision and has approached this Court for redress. The main contention is that the NEC admitted into evidence a letter allegedly written by a police officer which document was not produced in the proceedings a quo. Appellant’s grounds of appeal are as follows:

The NEC grossly misdirected itself by going beyond the mandate given by statute, that is, the industrial code of conduct in that it improperly and unlawfully allowed fresh evidence to be led for the first time on appeal.

Assuming that the NEC had the powers to allow new evidence on appeal, it committed a gross misdirection by allowing the Respondents to lead fresh and untested evidence on appeal without considering the criteria given by judicial precedent in such matters, to the prejudice of the Appellant who had objected to the production of the same.

The NEC committed a gross misdirection at law in holding that the new and untested evidence had the effect of discrediting the entire testimony given both by the individual to which that evidence related and the other witness who was not related to in the same evidence.

Appellant’s Submissions

Mr. Mahere informed the Court that he was abandoning the first ground of appeal and would proceed to motivate the remaining grounds of appeal. He stated that he would largely abide by the documents filed of record. He submitted that the NEC, in making its determination, had admitted in evidence for the first time a letter from the Zimbabwe Republic Police which was dated 20 February 2023. He added that the disciplinary hearing had been held on 29 November 2019. He further submitted that Respondents, in the hearings, had representation in the form of Mrs. Deda and such issues as to the status of Mr. Machona were not raised. Mr. Mahere argued that it was trite that an appeal is decided based on the record of proceedings from the tribunal a quo and it was therefore a misdirection for the NEC to admit evidence which had not been placed before the tribunal a quo. Mr. Mahere further stated that Appellant had objected to this, but the NEC had proceeded to deal with the untested evidence.

Mr. Mahere further argued that the letter in question related to the tatus of Mr. Machona and not Mr. Shava who was a person who had worked with the said Mr. Machona. He pointed out that it therefore became a misdirection for the NEC to proceed to discredit the evidence of Mr. Machona without any reference to the evidence Mr. Shava. Mr. Mahere stated that the fact that Respondents had requested this Court to summon witnesses to testify was an acknowledgement that the procedure adopted by the NEC was not correct. He also pointed to the fact that Respondents’ Opposing Affidavits did not address the grounds of appeal raised by the Appellant meaning that the appeal remained largely uncontested.

Respondents’ Submissions

In response, Mr. Nhidza stated that the fact that Appellant had withdrawn the first ground of appeal meant that they would not persist with the preliminary point which had been raised in the papers filed of record. He submitted that the letter produced before the NEC related to fraud which had been committed by Mr. Machona when he gave evidence before the disciplinary committee. Asked by the Court as to why the letter had not been produced in the two hearings, Mr. Nhidza stated that the information was not available at that time. He argued that the Labour Court was a court of first instance and should be able to receive evidence in the circumstances. Mr. Nhidza argued that the Appellant had not insisted on the calling of witnesses before the NEC and that body could not have mero motu called any witnesses.

Mr. Nhidza submitted that the Court was at liberty to remit the matter to the NEC for the purpose of hearing evidence which had not been placed before it. He stated that in the remittal the following witnesses, that is, Mr. Machona, Mr. Shava and Mr. Chris Muir should be made to attend the hearing as witnesses. He argued that justice would not be done if the matter was remitted for a hearing de novo before the Appellant as the whole management system would be subject to institutional bias.

ANALYSIS

It is a truism that an appeal court’s powers to set aside factual findings by a trial court or tribunal are limited. The general rule of the law, as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion. (See Hama v NRZ 1996 (1) ZLR 664 (S)).

In casu, the issue to be resolved in the determination is whether the NEC was correct to set aside the decision of Appellant’s appeals committee based on ‘new evidence’ adduced in the hearing. A reading of the record shows that the NEC admitted into evidence a letter written by one Sergeant Sharauka of Marondera Rural Police Station. The letter is in handwritten form. It was written in February 2023 almost two years after the proceedings of the disciplinary committee. It was not produced before the appeals committee. The reason given by Mr. Nhidza was that it was not available at the time. The letter itself does not state that the information that Mr. Machona was not a police officer was a result of a check of the police records. The NEC thereafter proceeded to discredit the evidence of Mr. Machona based on the strength of that letter. It is also correct that Appellant objected to the reliance of that evidence before the NEC. Crucially, as pointed out by the Appellant, the NEC does not comment on the evidence of one Mr. Shava who is not mentioned in the letter from the Zimbabwe Republic Police. This Mr. Shava gave evidence as to his ‘workings’ with the said Mr. Machona.

It is common cause that this was ‘new evidence’ brought before the NEC. Could the NEC have legitimately relied on this ‘new evidence’? Clearly not. It was stated by the NEC in its determination that:

“In addressing the issue of whether it was proper for the Tribunal to permit new evidence at the appeal level, it was noted that in terms of section 90 A of the Labour Act, (chapter 28:01) the Labour Court is not bound by strict rules of evidence. It is therefore the view of this Committee that as a lower Tribunal it may allow evidence at the appeal stage if that evidence is critical in the dispute at hand. It is also in the interest of both parties and the Tribunal that the dispute should be brought to its logical conclusion within reasonable time.”

What is clear from the reasoning of the NEC is that it was arrogating to itself jurisdiction endowed on the Labour Court. The provisions of that Act relate to the jurisdiction of the Labour Court and not the Tribunal. Section 90A relates to the powers given to the Labour Court and cannot, by extension, be subsumed by any other tribunal. In Medicines Control Authority of Zimbabwe v Nathan Toronga and Others SC10/17, GWAUNZA JA (as she then was) had this to say at page 7 of the cyclostyled judgment:

“Jurisdiction in simple terms can be defined as the power or competence of a particular court or tribunal to hear and determine an issue brought before it. A plea of jurisdiction therefore attacks the competence of a court or tribunal to hear and determine the matter. It

follows that a court or tribunal that has no jurisdiction, for whatever reason, to entertain a matter is not in a position to go beyond the question of its jurisdiction to determine any other issue to do with the dispute in question.”

It was argued before the NEC that it could not proceed to entertain new evidence in the circumstances as it was handicapped in doing so on appeal. The NEC sought to rely on section 90 A which is inapplicable to it. Clearly it lacked jurisdiction to entertain the ‘new evidence’. In Schierhout v Minister of Justice 1926 AD 99, INNES CJ had this to say:

“It is a fundamental principle to our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done- and that whether the law giver has expressly so decreed or not, the mere prohibition operates to nullify the act.”

The NEC sought to rely on a section in the Labour Act which did not apply to it. It could not admit any new evidence on appeal. Section 10.6 of the relevant code of conduct shows that the NEC Appeals Committee “shall consider the appeal on the papers”.

Mr. Nhidza made an impassioned plea to the Court to remit the matter for a hearing before the NEC with specific directions. I am of the view that this is not in order in the circumstances. It is not clear why the letter was sought at that belated stage. It is also not clear whether it was a ‘genuine’ letter having regard to the fact that it does not refer to any records referred to. It also does not deal with the other crucial witness, one Mr. Shava. The Appellant sought a nullification of the proceedings and that the parties be ‘ordered to convene a hearing on the sole issue of the handwritten letter dated 20 February 2023’. The Appellant did not state the status of the tribunal to deal with the matter. In my view, it would be incompetent for this Court to make such an order. The appeal, however, ought to be allowed.

In the result, the following order is appropriate:

The appeal is hereby allowed.

The determination of the NEC Welfare and Educational Institutions is hereby set aside.

Each party to meet its own costs.

Gill, Godlonton and Gerrans-	Appellant’s legal practitioners. Zimbabwe Federation of Trade Unions-	Respondents’ legal practitioners.