Phillemon Munyaradzi Chamburuka v The Chairperson of the Staff Disciplinary Committee Professor A Mamvuto N.O. and The Minister of Higher & Tertiary Education, Innovation, Science & Technology Development

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO
LC/H/344/25
HELD AT HARARE
CASE NO. LC/H/678/25
---------


IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/344/25

HELD AT HARARE	CASE NO. LC/H/678/25

22 SEPTEMBER 2025 & 26 SPTEMBER 2025

PHILLEMON MUNYARADZI CHAMBURUKA	1ST APPLICANT

THE CHAIRPERSON OF THE STAFF DISCIPLINARY

COMMIITTEE PROFESSOR A MAMVUTO N.O	2ND RESPONDENT

THE MINISTER OF HIGHER & TERTIARY

EDUCATION, INNOVATION, SCIENCE &TECHNOLOGY

DEVELOPMENT	3RD RESPONDENT

OPPOSED APPLICATION

E E Matika, for the applicants

T Chagonda, for the 1st respondent

F Gastin, for 3rd respondent

TSIKWA J: This is an application for review in terms of Section 20(1) of the Labour Court Rules, 2017 as read with Section 89 (1)(d) and Section 92EE of the Labour Act Chapter 28:01.

BACKGROUND FACTS

The applicants were employed by the first respondent as lectures and were members of the Association of University Teachers (AUT). This is a trade union that represents academic staff. On 2 April 2025 they embarked on a ballot system in a venue that was supposed to be used by students for their Chinese lecture without prior authorization. As result the applicants were charged of misconduct in terms of the University of Zimbabwe Employment Code of Conduct

and subsequently suspended. These suspensions were revoked for want of procedural compliance. They were resuspended without salary or benefits on 5 May 2025.

However, be that as it may hearing commenced and was concluded and the applicants were convicted and dismissed from work. Aggrieved by this decision they noted an appeal with the Appeals Committee. Instead of appealing against this decision or seeking a review they filed this application seeking a review of the proceedings before the SDC.

RELIEF SOUGHT

The application for review be and is hereby granted.

The investigations, suspensions dated 5th of May 2025 and disciplinary proceedings undertaken by the 1st respondent against the applicants be and is hereby declared unlawful and are set aside.

The disciplinary hearing proceedings conducted by the 2nd respondent and subsequent determination handed down on the 25th of June 2025 against the applicants be and are hereby set aside.

The parties be restored to the position they were prior to the 5th of May 2025.

Should the 1st respondent so desire to institute fresh disciplinary proceedings against the applicants in a procedural manner, the proceedings be commenced

before a different disciplinary committee / authority and be concluded within 14 days from the date of this order.

The first respondent be and is hereby ordered to pay the costs of this application on a legal practitioner and client scale.

GROUNDS FOR REVIEW

The application for review is premised on the following bases:

There were gross irregularities in the proceedings which were prejudicial to the applicants in that;

The staff Disciplinary Committee (SDC) failed to keep and produce proper and accurate minutes of hearing.

The investigations leading to the suspension and the misconduct charges against the

applicants were conducted by the Registrar who was also the complainant and witness in the matter.

Part of the investigations were conducted by the Deputy Registrar – Human and Capital

Management who is not clothed with such investigative powers in terms of clause 4.2.2 of the University of Zimbabwe Code of Conduct.

There was no valid investigation report that was produced and submitted to the Vice Chancellor as contemplated by clause 4.3.1 of the University Employment Code of Conduct.

Applicants’ statements which were attached to the Investigations Dossier submitted to the Vice Chancellor and admitted into record were gathered under revoked suspensions and answering different allegations.

It was legally impracticable to apply the University Employment Code of Conduct in the

proceedings as the persons who should investigate the matter i.e. The Registrar Chief Security Officer in terms of that Code were compromised by being complainant witness respectively.

It was legally impracticable to apply the University Employment Code of Conduct in the proceedings as the Vice Chancellor and members of the SDC were all compromised and interested parties in the matter in that allegations against the applicants had arisen out of

collective job action balloting process in which the entire 1st respondent’s administration was being challenged and attacked.

There was interest in the cause, bias and malice on the part of the Vice Chancellor and the staff disciplinary committee in that;

The SDC Chairperson being the Pro-Vice Chancellor of the 1st respondent was

interested in the cause and biased as he was at the time of the proceedings seized with hiring adjunct staff at the time the applicants were on collective job action arising from the secret

ballot which gave rise to the allegations.

The Vice Chancellor could not impartially and objectively assess the Investigation Report, prefer misconduct charges and appoint a staff disciplinary committee as he was an interested party in that the misconduct charges arose out of collective job action balloting process in which him and the first respondent’s entire administration were attacked and challenged by the applicants.

Four of the SDC members are part of the respondent’s administration and as such could not impartially and objectively preside and determine a matter which had arisen out of collective job action balloting process in which the entire 1st respondent’s administration

including themselves was being challenged by the by the applicants.

This application was opposed by the first respondent. Before delving into the merits of the application, the first respondent raised points in limine. These are as follows:

The application for review was filed out of time.

The matter is now res judicata and that applicants waived their rights when they appealed to the appeals committee.

Non-joinder of the Vice Chancellor and Registrar was irregular.

SUBMISSIONS ON POINTS IN LIMINE RESPONDENT

Mr Chagonda for the respondent submitted that the matter before the court is now res

judicata because after proceedings before the SDC, the applicants filed an appeal with the Appeals Committee. The appeals committee dealt with both procedural and substantive aspects of the case. He further submitted that the grounds of appeal before the appeals

committee are the same as the grounds of review in the matter before this court. These issues were resolved by the appeals committee which dismissed the appeal and that

decision is extant. It was further submitted that in terms clause 7. 7 of the Code of Conduct an appeal before the Appeals Committee takes the form of review of the proceedings of the SDC.

This court was referred to the case of SAYLES CORPORATION (PVT) LTD V COUCHGRASS (PVT) LTD SC42/25 wherein it was stated as follows:

“The requirements for the special plea of res judicata are well established. These are that there be a previous judgment by a competent court in a matter between the same parties

or their privies based on the same cause of action, with respect to the same subject matter. See Bafokeng Tribe V Impala Platinum Limited 1999 (3) SA 517 (B).

It was argued that these requirements are met in the present case. It was also submitted that the principle of res judicata is mean to ensure that there is finality to litigation.

Reference was made to the case of WOLFENDEN V JACKSON 1985 (2) ZLR 313 @314, per GUBBAY CJ (as he then was) stated that:

“The exception of res judicata is based primarily upon public interest that there must be an end to litigation and that authority vested in judicial decisions be given effect to even if

erroneous. See LeRoux en’ Ander V Roux 1967 (1) SA 446 at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court the parties to that judgment or their privies (or in the case a judgment in rem, any other person) are not permitted to dispute its correctness.”

In so far as waiver is concerned it was submitted that at the time the applicant chose to file an appeal with the appeals committee, they waived their right to approach this court on

review of the same proceedings. The 1st respondent’s counsel further argued that the same grounds of appeal before the appeals committee have been presented before this court as grounds of review and determination was made which remains extant.

The respondent took issue with non-joinder of the Vice Chancellor and the Registrar yet in the application they seek to impugn and have set aside the suspensions and investigations report. This, it was argued was fatal to the application because it is the decisions of those not cited that they were seeking to set aside. Reference was made to the case of Gula Ndebele v Bhunu NO 2010 (1) ZLR 78 (H) per Makarau JP (as she then was)

“It is therefore my finding that non-citation of the President in this application is fatal to the applicant’s application. As indicated above, it is untenable for the applicant to suggest that

he can attack the recommendation of the tribunal only without affecting the act of the President to remove him from office. The act of removing him from office cannot lawfully exist without the requisite recommendation and thus to attack one is of necessity to attack the other. In that regard and to be procedurally correct, the President must be made a party to the proceedings. This court cannot make an order adversely affecting the action of the President without affording him a right to be heard.”

The respondents did not pursue the other preliminary point that the application was filed out of time. The court took that the point was abandoned.

The applicants in response found no merit in the points raised in limine. It was submitted that the application before the court is quite different from the issues that were presented before the appeals committee in that before the appeals committee what was being

challenged was the reasoning of the SDC. The present application is challenging the method

/ process used in arriving at the decision. Mr Matika for the applicants felt that the principle of res judicata was not applicable. Counsel also argued that by noting an appeal with the

appeals committee it was not a waiver of the applicants’ right to seek a review of the proceeding before the SDC.

On non-joinder of the Vice Chancellor and the Registrar it was submitted that it does not affect the applicants’ case in anyway because the SDC sat independently of the 1st respondent and the fact that the Chairperson of the SDC was cited does not necessarily follow that Vice Chancellor and Registrar were supposed to be cited as well. Mr Matika

relied on a number of case law among them Wakatama and Ors v Madamombe SC10/12 to the view that non- joinder of parties does not defeat the cause.

It was Mr Matika’s submission that in their prayer they did not seek that the court to substitute its decision for that of the SDC but the setting aside of the investigation report and suspension decision. The applicants’ counsel also submitted that they have also filed

notice of appeal against the decision of the Appeals Committee and also review of the same proceedings before this court.

APPLICATION OF THE LAW TO THE FACTS

Is the principle of res judicata applicable to the present case?

The requirements for the application of the principle of res judicata to any case are trite. These are:

The matter must involve same parties.

It must involve the same subject matter.

There must be judgment by a competent court on the same subject matter.

In casu it is not in dispute that the matter involves the same parties and involves the

same subject matter. Though the applicants approached the Appeals Committee by way of appeal, the proceedings there took the form of a review as per clause 7.7 of the

University Employment Code Conduct and grounds as formulated included grounds of review. The applicants in their application never alluded to the fact that they had filed an appeal with the appeals committee which was dismissed. It took counsel for the 1st respondent to read through some of the grounds of appeal which are just similar to the grounds of appeal in casu. It is apparent that the requirements for the res judicata

principle have been satisfied. The case of SAYLES CORPORATION (PVT) LTD V COUCHGRASS (PVT)LTD (supra) is instructive on this point. The point in limine is therefore upheld.

The greatest undoing by the applicants is to take the proceedings of the SDC on review and yet there is a decision of the Appeals Committee that is extant. Such conduct by the applicants shows lack of seriousness and taking this court for a ride. The appeals committee dealt with both procedural and merits of the case and dismissed the appeal.

It was that decision that was supposed to be taken on appeal or review. It does make

sense to seek to take review the processes and procedures adopted by SDC yet there is an extant judgment by appeals committee that dismissed the same issue. It was rather unwise for the applicants to file this application for review yet the decision of the

appeals Committee remained unchallenged. This conduct was condemned by the High Court in Sergeant Mazungunye v Trial Officer HB123/17. It was stated as follows:

“This a clear case of forum shopping where the applicant has engaged in the triple jump routine of hop, step and jump from the court of a single officer, to the appeal court of

the Commissioner General of Police and then to this court where he has arrived panting and breathes seeking a review of the decision of the single officer in the disciplinary

proceedings instituted against him.”

The above dicta has direct resemblance to the case under consideration. There has been no congent reason why such a procedure was adopted. That Code of Conduct provides for shorter periods to note an appeal is neither here nor there. The current extant

judgment they were aggrieved with is the judgment by the Appeals Committee. Appeal or review ought to have been against this judgment. It cannot be wished away.

When the applicants filed this review application, they were already aware of the

outcome of their appeal filed with the appeals committee. What they ought to have

done was to act in terms of Rule 19 (3) of the Labour Court Rules, 2017. The rule makes

it peremptory that should a party intend to file an appeal and at the same time intend to seek a review the notice of review must be attached to the notice of appeal. The rule in question reads:

“A person making an appeal under this rule who also wishes to seek a review of the proceedings in respect of which he or she makes the appeal shall, at the same time,

complete in three copies of a notice of review in form LC4 and serve such notice together with the notice of appeal under this rule.”

This rule is clear that these two processes must take at once. It would as an

afterthought when applicants then filed an application for review and notice of appeal against decision of the appeals committee LCH752/25 and LCH 754/25. Counsel was

asked how these two cases would be resolved assuming the court granted the relief sought. In response he indicated that the order would be filed in the respective records. I do know what he meant by this. The mischief behind Rule 19 (3) is to avoid multiplicity of records and conflicting judgments by the same court. This is a clear cut case of forum and playing games of chance.

The conduct by the applicants falls foul of the provisions of Section 124 (1) of the Labour Act which prohibits instituting other proceedings in respect of the same cause or related matter without first advising the court. The fact that an appeal was noted against

decision of SDC was not disclosed even the fact that a review an appeal were noted against decision of the appeals committee.

However, be that as it may the bottom line is that it was incompetent to file a review of the proceedings of the SDC yet there was now an extant order of the Appeals

Committee. By implication and through conduct the applicants waived their right to seek a review of the proceedings before the SDC in this court because appeals committee dealt with issues raised and dismissed the appeal.

WHETHER NON-JOINDER WAS FATAL OR NOT?

On non- joinder the Vice Chancellor and Registrar the applicants were also found wanting. Whilst the two are functionaries of the 1st respondent since their suspensions and investigative report that were to be set aside it was crucial that they be joined in

these proceedings so that they are afforded an opportunity to answer or defend their respective decisions and actions. I find the case of Gula Ndebele v Bhunu NO (supra) to be instructive on this aspect. The case of Wakatama &Ors v Madamombe SC 10/12

relied on by the applicants is distinguishable from the one at hand. The judge in the Wakatama case (supra) relied on rule 87(1) and (2) of the High Court Rules which expressly provide that non-joinder shall not defeat the cause and the court is also

empowered on its own accord to order joinder of a party at any stage. There is no similar provision in the Labour Act or the Rules.

They could not in casu competently seek the setting aside of the investigation report

without citing the person who carried out the investigation, the Registrar. Similarly, they could not competently seek the setting aside the suspensions and not cite the person who made that decision.

It is my finding that non-joinder of the Vice Chancellor and Registrar was fatal. The point in limine must succeed.

WHETHER RELIEF SOUGHT IS INCOMPETENT?

The applicant has taken issue with the relief sought in paragraphs 4 and 5 of the draft order. The relief in paragraph 4 has the effect reinstating the applicants to their former positions. Relief in paragraph 5 has the effect of directing the 1st respondent what it must do with the disciplinary action against the applicants.

In the case of Zimbabwe United Passenger Company v Beaular Mashinge SC 21/21 it was found that the net effect of declaring proceedings a nullity on the basis of gross

procedural irregularity is to restore both parties procedural and substantive rights to the position they were immediately before the nullified process. It was further stated that this was the position despite the fact that disciplinary action may still be taken against

the same employee. The judge in that case commented as follows:

“In the circumstances of this matter, the setting aside of the unlawful dismissal of the respondent restored her status as an employee of the appellant	“. The Supreme

Court dismissed an appeal by the bus company against an order by the Labour Court in a review matter setting aside decision of the disciplinary committee and reinstating the employee or alternatively payment of damages. However, the Supreme Court commented on the case of Air Zimbabwe v Mensa SC89/04 cited in the ZUPCO case that the employees in that were on suspension without pay before therefore this was the status they reverted to after the setting aside of the disciplinary proceedings. It then distinguished it from the ZUPCO case which was under consideration. Those employees were not on suspension without salary. It then concluded that the setting aside of the unlawful dismissal of the respondent restored her to the status of an employee of the

appellant.

From this finding by the Supreme Court, it is apparent that the orders by the applicants in paragraphs 4 and 5 are not competent. This court cannot order that they revert to the positions they were prior to suspension because they were on suspension without

salary and benefits. This point in limine therefore succeeds and is upheld.

In the light of the above that I uphold all the three points in limine as they are dispositive of the application before the court.

Taking into account the circumstances of this case, there is no need for an order of costs.

DISPOSITION

WHEREFORE, it is ordered as follows:

The points in limine being with merit, be and are hereby upheld.

The application for review be and is hereby dismissed.

There shall be no order as to costs.

TSIKWA J