Phineas Run'anga v ZETDC

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/688/14
HARARE, ON 7th OCTOBER , 2014
CASE NO. LC/REV/H/44/14
AND 10 OCTOBER, 2014
JUDGMENT NO. LC/H/688/14
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IN THE LABOUR COURT OF ZIMBABWE                              JUDGMENT NO. LC/H/688/14

HARARE, ON 7th OCTOBER , 2014			            	          CASE NO. LC/REV/H/44/14

AND 10th OCTOBER, 2014

In the matter between

PHINEAS RUN’ANGA				–	APPLICANT

And

Z E T D C 					 	-	RESPONDENT

Before The Honourable B.T. Chivizhe, J

For Applicant   :	Mr C. Chopamba  (Legal Practitioner)

For Respondent:	Mr R. Zhuwarara (Legal Practitioner)

CHIVIZHE J,

This is a review application. The grounds on which the review relief sought are contained in the Notice of Application for Review Form LC 4.

The Applicant was employed by the ZETDC based in Marondera which falls under the ZETDC Northern Region. He was charged with contravening Section 7(1) (e) (viii) of the relevant Code of Conduct being the Zimbabwe Electricity and Energy Supply Industry, Employment Code of Conduct and Grievance Handling Procedure, 2011 viz disorderly or objectionable behavior and contravention of Section 7(1) (d) (iii) of the Zimbabwe Electricity and Energy Supply Industry Employment Code of Conduct and Grievance Handling Procedure 2011 viz insubordination or disobedience.

The Applicant was arraigned for a disciplinary hearing on the 24th of April 2014. He was found guilty of both charges and consequently dismissed from employment with effect from 25th of April 2014? The Applicant then filed with this Court his application for review.

The grounds on which he relied are as follows:

The Respondent acted in grossly unreasonable manner and flouted the provisions of the Code of Conduct when it determine the matter when the Disciplinary Committee did not have the requisite quorum as stipulated in Section 9(1) of the Code of Conduct and also allowed the Secretary to produce an edited and summarized record of proceedings despite Applicant’s insistence that it be a verbatim record of proceedings.

The Respondent acted in a grossly unreasonable manner are violated the provisions of the Code of Conduct when the Chairman and two management members who had been objected to n terms of Section 19(1)(a)(iv) of the Code of Conduct did not give the other members of the Disciplinary Committee an opportunity to deliberate in their absence as provided for in the Code of Conduct.

The Respondent displayed patent bias to the proceedings and sided with the case presenter as shown through, inter alia, the refusal for postponement towards the Applicant, refusal of application for an inspection in loco, the rush or hurried determination in favour of dismissal when it was patently clear that the parties had been sitting from 9.00 am to 7.00 p.m.

The Respondent acted in a grossly unreasonable manner, acted in an arbitrary manner and violated the principles of natural justice when the Northern region Disciplinary Committee it convened in Chinhoyi and presided over the hearing from 9.00 am to 2.00 am the following day without an interval and then take 2 minutes to come to a decision.

The Respondent displayed bias and total disregard for the clear provisions of the Code of Conduct when the Chairman conducted the proceedings as if he was the sole arbiter and did not afford the other members of the committee an opportunity to give input. The Chairman allowed the proceedings to continue whilst other members of the Disciplinary Committee was fast asleep from exhaustion.

The Respondent is opposed to the application. It raises two points in limine. Firstly that the Applicant in Form LC4 has identified the Respondent as Zimbabwe Electricity Transmission and Distribution Company (Northern Region). It is Respondent’s contention that there is no legal persona in that name. Secondly, the Applicant has failed to cite the decision maker. This is especially so in view of the fact that in its grounds of review numbers 2 to 5 the Applicant raises specific allegations of bias against the decision maker.

In oral submissions Mr Zhuwarara submitted that the application has been brought against an entity which is not a legal persona at law, with the capacity to sue or to be sued. There is consequently no Respondent before the Court and the Court should dismiss the application on that basis. He referred to Zimbabwe Bata Shoe Company (Pvt) Ltd vs. Bata Shoe Company Middle Management SC 30/12. In regards the second point in limine in order to bolster the point the Court was referred to a South African case in Safcor Forwarding (Pty) Ltd vs. National Transport Commission 1982 (3) SA 654. It was Respondent’s position that Respondent having failed to cite the decision maker this was a fatal irregularity and the application ought to be dismissed on that basis.

Mr Chopamba, for the Applicant, in response submitted that the Respondent is properly cited in the papers. If Respondent is not properly cited then it was up to Respondent itself to indicate its proper name. In regards the second point in limine he argued that there was no need to cite the decision makers who were the members of the Disciplinary Committee but remained employees of the respondent company. He also further submitted that the Chairman of the Disciplinary Committee referred to in grounds for review is a legal persona. Lastly he urged the Court to desist from being drawn to deal with technicalities rather than substantive issues. On that basis the points in limine ought to be dismissed.

I shall address initially the second point in limine. Whilst it is indeed the position that by virtue of R 256 under the High Court Rules, an Applicant must cite the person who made the decision that is being brought under review, there is no similar provision under the Labour Court Rules. In any event in the decision in Chivenga vs. Delta Distribution 2003 (1) ZLR 517 (H) the Court held that where an employee who has been dismissed wishes to bring under review the decision or proceedings of another employer or a committee consisting of employees of his employer which led to his dismissal it would be adequate, if only the employer is cited.  On the basis of this decision I would tend to agree with Applicant that there was no need for him to cite the decision maker in this case. I would consequently dismiss the second point in limine.

In regards the first point in limine however the Respondent raises a valid objection. In the light of the Zimbabwe Bata Shoe Company (Pvt) Ltd case referred to supra by it appears clearly the Respondent referred to as ZETDC (Northern Region) is not a legal persona at law. The Respondent, not being a legal persona, there is consequently no Respondent before this Court. The proceedings are therefore a nullity at law. It is so ordered.

Thondlanga and Associates – Applicant’s legal practitioners

Dube, Manikai and Hwacha – Respondent’s legal practitioners