Shingirai Chitura v Medical Investments Limited

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IN THE LABOUR COURT OF
JUDGMENT NO.LC/H/144/24
ZIMBBWE HELD AT HARARE 25TH
CASE NO.LCH/134/24
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IN THE LABOUR COURT OF ZIMBBWE HELD AT HARARE 25TH MARCH 2024 AND 2 APRIL 2024

In the matter between

JUDGMENT NO.LC/H/144/24 CASE NO.LCH/134/24

SHINGIRAI CHITURA	APPLICANT

And

MEDICAL INVESTMENTS LIMITED	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE, JUDGE

FOR THE APPLICSNT :MR E. CHIGOVA (TRADE UNIONIST)

FOR THE RESPONDENT: MR S. SADOMBA( LEGAL PRACTITIONER)

MAKAMURE J:

This is an application for review

The applicant raises two grounds for review, that is that, firstly, the respondent’s Appeals Officer erred in upholding the decision by the Disciplinary Committee where the Disciplinary Committee had failed to address a preliminary point regarding its own jurisdiction to deal with the matter before considering the merits of the case before it; and secondly, that the decision of the Appeals Officer was grossly irregular in that it upheld the decision of the Disciplinary Committee where that Committee had failed to afford the applicant an opportunity to make an address in mitigation before a penalty was imposed.

The following is  common cause .The applicant was employed by the respondent as a Debtors Clerk .The respondent has a fund called the Avenues Clinic Pension Fund (the Pension Fund).Funds in the Pension Fund are held by the National Building Society (NBS /the Bank) on behalf of the respondent. The applicant connived with one Eutychus and produced a fraudulent agreement purporting that the applicant was selling a stand in Rusape. The applicant does not own a stand in Rusape. As a result of that fraudulent agreement, a fraudulent claim was presented to the Bank. On the strength of that fraudulent claim the Bank released funds to the applicant. As shown above the funds so released belonged to the Pension Fund. The applicant was not entitled to those funds.

It was on the basis of the above undisputed facts that the applicant was charged with and convicted of fraud. He was penalized with dismissal. At the commencement of the disciplinary proceedings the applicant raised a preliminary point that the respondent had no jurisdiction to prefer charges against him as the offence was committed away from the workplace and therefore had nothing to do with the employer. The Disciplinary Committee noted the preliminary issue and proceeded to consider the merits of the case. It found him guilty and penalized him with dismissal. The record shows that mitigation was considered. He disputes this and aggrieved by the decision he appealed internally. During the internal appeal the applicant raised the issue of jurisdiction and the failure to address in mitigation. The Appeals Officer went to great lengths to address the two issues. At the conclusion of the appeal hearing both the conviction and penalty were confirmed. Applicant was aggrieved by that outcome and filed the present application.

Mr Chigova who represented the applicant argued that the Appeals Officer admitted the irregularity. Because of that admission , it was submitted for the applicant that the Appeals Officer presided over a nullity. It was argued with respect to the address in mitigation that the Appeals Officer once again dealt with a legal nullity. The cases of CABS v Stone and

Others &Reserve Bank of Zimbabwe v CABS & Others SC15/21 and Nzara and Ors v Kashumba and Others SC 18/18 were cited in support of the applicant’s case.

In response Mr Sadomba who appeared on behalf of the respondent argued that with respect to the issue of the perceived legal nullity, there was actually an appeal process to deal with the possible errors of the lower tribunal. It was argued on behalf of the respondent that on the question of jurisdiction that preliminary issue had no basis. The Appeals Officer had power to consider the said preliminary issues. It was further submitted on behalf of the respondent that the applicant is concerned with technicalities but the merits could not be ignored. It was Mr Sabomba’s submission that the alleged procedural irregularities were not fatal. In closing Mr Sadomba submitted that the applicant committed fraud and was paid money on the basis of the misrepresentation that he made. On that basis , continued Mr Sadomba, the applicant was guilty of misconduct. The following are some of the authorities relied upon in support of the respondent’s case. ZFC Limited v Geza 1998 (1) ZLR 137(SC);Richard Chaikosa vThe City of Harare SC30/14;Dalny Mine v Banda 1999 (1) ZLR 220; Air Zimbabwe v Mlambo 1997 (1) ZLR 220 ;Nyahuma v Barclays Bank SC67/05 ;Air Zimbabwe (Private ) Limited v Chiku Mnensa and Mavis Mwarweye SC89/04.

In response Mr Chigova insisted that the respondent had no jurisdiction to prefer charges against the applicant as the offence occurred outside the respondent’s premises and that the preliminary issue on jurisdiction could have disposed of the matter. On the question of mitigation ,the submission was that the preliminary issue was not before the Appeals Officer and the matter should have been remitted to the Disciplinary Committee for consideration.

In Dalny Mine v Banda (above) it was stated that it is not desirable for labour matters to be resolved on the basis of technicalities, but that the technicalities should be resolved . In Air

Zimbabwe (Private )Limited v Chiku Mnensa and Mavis Mwarweye (above) the Supreme Court stated that:

‘A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent. There was no enquiry into the merits of the respondents’ conduct. ’

In the case of Tachiwana Nyahuma v Barclays Bank (Private) Limited(above) the Supreme Court had this to say:

‘Before dealing with the procedural irregularities alleged by Nyahuma, I wish to state that it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.’

The applicant herein holds the view that had the technicalities been properly dealt with by the Disciplinary Committee they would have disposed of the matter. This goes against the principle that labour issues ought not to be resolved on the basis of technicalities. What the Appeals Officer did is exactly what is envisaged by the Dalny Mine case (above). Further , with respect to the question of jurisdiction, if regard is had to the fact that the funds which were released to applicant by the Bank belong to the respondent and that the Bank is just an administrator then it is surprising that the applicant has the courage to question the respondent’s jurisdiction. In any event not all technicalities vitiate disciplinary proceedings. In casu the guilt of the applicant was established. What this means is that even if there had been merit in the technicalities , they were not going to invalidate the guilt of applicant. It would have been a fruitless academic exercise. There is therefore no merit in the grounds for review. The application can only fail. An appropriate will be made.

It is ordered that:

The application for review be and is hereby dismissed.

There is no order as to costs.

GILL GODLONTON &GERRANS, RESPONDENT’S LEGAL PRACTITIONERS.