Regai Rakata v Murowa Diamonds

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/427/13
HARARE, 26TH JUNE 2013
13TH SEPTEMBER 2013
CASE NO LC/H/871/12
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/427/13

HARARE, 26TH JUNE 2013 &			CASE NO LC/H/871/12

13TH SEPTEMBER 2013

REGAI RAKATA						Applicant

Versus

MUROWA DIAMONDS					Respondent

Before The Honourable L. Hove:	JUDGE

For Applicant: C Mucheche (Legal Practitioner)

For Respondent:Ms A Mapanzure (Legal Practitioner)

HOVE J:

When this matter came up for hearing, a point in limine was raised on behalf of the employee who is the appellant in these proceedings.

It was argued that the appellant was charged with the offence of contravening s 3 (a)(1) of the relevant Code of Conduct (Collective Bargaining Agreement: Mining Industry (“Code of Conduct”) i.e. SI 165 of 1992.

The allegations were that there was non-compliance with established procedures/standing instructions; failure to follow established procedures.

The alleged facts were that on 28 August 2012, the appellant did not ensure that the start weight was captured and left the sort house knowing that the start and end weights had not been reconciled as per procedure.

The appellant was charged with an act of misconduct and he was found guilty and dismissed.

A reading of the Code of Conduct however shows that non compliance with established procedures/standing instructions is not an offence under s 3 (a)(i) but under s 3 (a)(ii).

The charge therefore cited s 3(a)(i) but the particulars on the charge sheet alleged a contravention of s 3(a)(ii) i.e that the appellant had failed to follow laid down procedures.

The hearing officer examined the facts before him and pronounced a verdict of guilty i.e contravention of s 3 (a)(ii).

The appellant now alleges that he was charged with contravening s 3(a)(i) but was found guilty of contravening s 3(a)(ii). It was argued on his behalf that this was an irregularity and therefore the proceedings should be quashed.

The appellant’s representatives relied on several Supreme Court judgments which are authority for the proposition that failure to follow laid down procedure in conducting disciplinary hearings will render the proceedings a legal nullity.

The following cases among others were cited in support of that preposition; Muchakata v Netherburn Mine 1996 (1) ZLR 153 (SC); Brian Mutandiro v The Posts and Telecommunications Corporation HH 43-01 and Brake and Clutch (Pvt) Limited v Johify Nyama SC 42/01.

The respondent argued in response that the citing of s 3(a)(i) was merely a mistake. It is however clear and evident from the same charge sheet that the employer was alleging that the appellant had failed to follow laid out procedure, which is an offence under subparagraph (ii) and not disobedience of lawful instructions which is the offence under subparagraph (i).

The facts and the charge sheet show that the allegations that the appellant was asked to apply his mind to were that he had failed to follow procedures. He was therefore aware of the allegations he was facing and also defended himself on those allegations. The citing of a wrong subparagraph did not cause any prejudice in that the appellant knew the actual allegations and defended himself in relation to those allegations inspite of the fact that a wrong subparagraph had been cited.

The explanation by the respondent’s legal practitioner that there was a mistake is reasonable under the circumstances of this case. The respondent did not charge the appellant with failure to obey lawful instructions and alleged that he had failed to obey lawful instructions and then after the effect realize that actually what the appellant had done was to fail to follow procedure and then find him guilty of failing to follow laid down procedures. If this had been the case, then the irregularity would have been fatal. But what transpired is that the employer alleged that the appellant had failed to follow laid down procedures and proceeded to enquire during the hearing if the appellant had indeed followed the laid down procedures. They, however, cited subparagraph (i) but proceeded to allege a contravention of subparagraph (ii). It is my view that this was merely an error. It is evident that both parties were aware of the actual allegations and addressed them inspite of the fact that a wrong subparagraph was cited in the charge sheet.

The cases that have been cited by the appellant’s representatives do not address incidences were there is an error as is evidently the case here. The cases do not therefore take the appellant’s argument anywhere.

The issue to address is rather what happens when there is an error in citing a subparagraph. Should this be fatal to the proceedings? Does this render the proceedings a legal nullity?

In my opinion the approach to be adopted is that the court should look into the issue of prejudice. Did the error cause any prejudice?  In this case, no prejudice was suffered. In which case the court should adopt the position as established in the Supreme Court decision of Tawana Nyahuma v Barclays Bank 2005 (2) ZLR 445 where in it was stated that it is not every irregularity that should be allowed to vitiate the proceedings. Where no prejudice has been suffered, the matter must be allowed to be decided on its merits rather than procedural technicalities.

In cases where there is no prejudice suffered, the attitude of the court has always been that technicalities cannot be allowed to vitiate or nullify proceedings. See in this regard the cases of Watyoka v Zupco SC 87/2005, Telone v CASWUZ SC 26/06, Zimposts v CASWUZ SC 23/09, Manyonda  Ors v PTC SC 10/99 and Kambuzuma & Orsv Athol Evans Hospital SC 118/2004.

There is no basis to depart from the established position. It is in my view in the interest of justice that this matter be decided not on legal/procedural irregularities but on its merits as no prejudice was suffered.

The court will not prefer a new charge but may direct that an evident error be corrected.

I accordingly dismiss the point raised in limine.

HOVE J

JUDGE – LABOUR COURT

Matsikidze & Mucheche, applicant’s legal practitioners

Chinawa Law Chambers, respondent’s legal practitioners