Samson Dzikamunenga v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/457/2016
HARARE, 13 JUNE 2016
CASE NO. LC/H/457/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/457/2016

HARARE, 13 JUNE 2016				         CASE NO. LC/H/REV/26/16

AND, 22 JULY 2016

In the matter between:-

SAMSON DZIKAMUNENGA					Applicant

And

CITY OF HARARE							Respondent

Before Honourable Murasi, J

For Applicant		In Person

For Respondent		Ms A. Zvoutete (Legal Officer)

MURASI J:

At the conclusion of the oral submissions this Court dismissed the application for review stating that the reasons would follow.  The following are the reasons.

Applicant was employed by the respondent in its ICT Division.  Following allegations of misconduct, applicant appeared before a disciplinary committee which found him guilty of one court but not guilty on the other charge.  The disciplinary committee recommended his dismissal.  The matter ended up in arbitration before Honourable Dangwa.  The arbitrator found that applicant had not been unfairly dismissed.  Applicant has approached this Court on review.

Applicant’s grounds for review as reflected in filed Form L.C. 4 are couched as follows:

The arbitrator grossly erred and misdirected itself by making a decision based on inaccurate minute book fraught with fatal irregularities which irregularities and authenticity was rightly questioned and raised by the arbitrator himself in casu.

The arbitrator was biased: there is no legal link between the arbitration’s record of proceedings and the ultimate award.

Further and in any event the arbitrator had no jurisdiction to continue to determine the matter in terms of section 98 (6) of the Labour Act [Chapter 28:01] following the expiry of its (his) practicing certificate.

Applicant appeared in person to argue his matter.  He stated that the arbitrator had not considered the preliminary points raised by the applicant in the tribunal hearing and thus the arbitrator had erred.  It was pointed out by the applicant that this showed that he was biased.  Applicant further submitted that the record from the Disciplinary Committee should have been signed by the Chairperson and the one produced before the arbitrator was not, which was a clear violation of the CBA.  Applicant further averred that the arbitrator had not considered the oral preliminary point placed before him which was a misdirection on his part.

Ms Zvoutete for the respondent informed the Court that she was abandoning the points in limine which had been raised.  She stated that she abided by the documents filed of record.  She stated that in the hearing held on 14 December 2015 the arbitrator had recorded what the parties were submitting and the analysis of those points is found in the arbitral award.  She submitted that on the issue of “Dirty Hands” raised by the applicant in the tribunal a quo, the arbitrator had made the finding that this did not apply to the respondent.  As far as the challenge to the record of proceedings was concerned, Ms Zvoutete stated that the arbitrator had ruled that applicant had been provided with the record.  She argued that the preliminary points had been addressed by the arbitrator.  It was further submitted that the signed record in the form of the Executive Summary was provided to the applicant and that the law does not require that the minutes be signed by the Chairperson.  Ms Zvoutete further stated that the arbitrator had correctly made a finding in terms of the evidence adduced and that there was no evidence of bias on his part.  As far as the issue of jurisdiction was concerned, she submitted that when the matter was placed before the arbitrator, he had jurisdiction to preside over the matter and when he finalised the award the licence had expired.  It was further submitted that the applicant had not cited any law which invalidated the decision of the arbitrator in the circumstances Ms Zvoutete further argued that the applicant had based the application on technical issues but had not referred to the proceedings themselves which showed that the applicant’s case, on the merits, was doomed to fail.

It is trite that issues of review and appeal are clearly different Herbstein and Van Winsen in The Civil Practice of the High Courts of South Africa, 5th ed, described the two processes thus:

“The reason for bringing proceedings under review or appeal is usually the same, viz, to have the judgments set aside.  Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal.  Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review.”

This application for review is made in terms of section 92EE of the Labour Act [Chapter 28:01].  The grounds for review are listed as follows:

absence of jurisdiction on the part of the arbitrator or adjudicating authority;

interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority;

gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority.

Applicant raises the issue of jurisdiction in his third ground of review.  I will begin with the last ground of review.  It is alleged that when the arbitrator completed the matter, his mandate, granted to him by the Minister, had expired.  Applicant states in his Founding Affidavit that:

“He became barred at the expiry of the practicing certificate.”

Applicant does not state when the arbitrator’s mandate ended.  He states that the application for his reappointment was still pending.  The arbitrator gave his award on 10 March 2016.  It is also corrected that applicant acknowledges that when the arbitrator first dealt with the matter, he was clothed with the necessary jurisdiction.  He does not inform the Court as to when such mandate is deemed to have vanished.  Section 7 (6) of the Labour Arbitrators Regulations, Statutory Instrument 173 of 2012 provides that an arbitrator shall finalise matters before such arbitrator within three (3) months from the date of expiry of the authority to preside over such matters.  As already pointed out, in the absence of the date the mandate is deemed to have expired, the Court is not in a position to state that the arbitrator had no jurisdiction.  It is trite law that one who alleges has the onus to prove the case on a balance of probabilities.  I have indicated that the law gives the arbitrator an additional three (3) months within which to complete matters before him/her.  It is presumed in the absence of evidence to the contrary, that the matter must have been completed within the prescribed period of time.

The first issue raised by the applicant is that the arbitrator relied on an “inaccurate minute book fraught with fatal irregularities.” Firstly, the arbitrator does not acknowledge that the record of the minutes is inaccurate as alleged by the applicant.  The portions referred to by the applicant in the record pertain to submissions by the parties during the hearing.  The arbitrator’s findings on the authenticity of the record are found in the award.  The arbitrator found that the applicant was given the record of proceedings.  It is the Court’s view that the arbitrator’s finding in this regard cannot be faulted.

The second ground for review averred that the arbitrator was biased as there was no legal link between the arbitrator’s record of proceedings and the ultimate award.  The statement is difficult to grasp.  It may mean that it was because the arbitrator was biased that he arrived at a decision which was divorced from the evidence on record.  What is evident is that the applicant was enjoined to prove that there was bias on the part of the arbitrator.  The issue of bias was discussed in President of RSA and Others vs South African Rugby Football Association Union and Others 1999 (4) SA 147 (CC) (A) where it was stated thus:

“.. the question was whether a reasonable, objective and informed person would on the correct facts, reasonably apprehend that the judge had not or would not bring an impartial mind to bear on the adjudication of the case …”

The record shows that the matter took long to complete as the applicant insisted that proper documents had  not been availed to him.  The arbitrator made orders that the respondent avail the documents to applicant.  The record shows that respondent’s Chamber Secretary wrote a letter to applicant attaching the minutes of the hearing as directed by the arbitrator.  It was only after the arbitrator was satisfied that this had been complied with that he proceeded with the hearing.  Secondly, the applicant raised a preliminary point orally that the respondent had approached the court with “Dirty Hands”.  The arbitrator dismissed the preliminary point and gave his reasons for so – doing.  The applicant was enjoined to disclose all facts which might give to a reasonable apprehension of bias.  As stated in President of RSA case (supra) it should play on the mind of a “reasonable, objective and informed person” that the trier of fact did not bring his/her mind to act judiciously on the matter before him/her.  Can such a finding be made in the present circumstances? The facts militate against making such a finding.  Further, precedent has shown that it is not enough to point out procedural irregularities but that one must go on to allege and show prejudice.

I will come to an issue which I raised with the applicant during the course of the oral submissions.  This was to do with the proceedings themselves.  Applicant does not raise any issues about how the hearing was conducted.  Applicant does not dispute the contents and veracity of the evidence adduced in the hearing.  The applicant does not contest the verdict arrived at by the disciplinary committee.  Applicant did not have any responses to my observations.

For the aforestated reasons, the Court is of the firm view that the application for review ought to be dismissed.

The Court makes the following Order:

The application for review is dismissed.

The arbitral award of Honourable Dangwa be and is hereby upheld.

There be no order as to costs.