Shungu Munyati v Biomedical Research Training Institute & Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/189/25
CASE NO. LC/H/325/25
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 24 APRIL 2025

JUDGMENT NO. LC/H/189/25

CASE NO. LC/H/325/25

AND 14 MAY 2025

IN THE MATTER BETWEEN:

SHUNGU MUNYATI	APPLICANT

AND

BIOMEDICAL RESEARCH TRAINING INSTITUTE

EDZAI EDSON MATIKA N.O.

CHRISTOPHER SAMKANGE

FIRST RESPONDENT

SECOND RESPONDENT

THIRD RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

ForApplicant	Mrs. B. Mtetwa

With Mr. L. Majogo

For First and Third Respondents	Mr. C. Mavhondo

With Ms. B. Mudehwe

MURASI J.,

This is an Urgent Chamber Application for the stay of proceedings which were to be held on 14 April 2025. The application was filed with the Court on the date of the hearing. The Court gave instructions for the Respondents to file their opposing papers and Applicant was thereafter to file heads of argument by end of day on 16 April 2025. The Respondents were to file their heads of argument by 22 April 2025 and the matter was to be heard on 24 April 2025. I should point out that certain developments instituted by First Respondent led to the hearing sought to be stayed being held simultaneously with the current proceedings. At the conclusion of the oral submissions, Counsel for Applicant prayed for an interim Order staying those proceedings pending the determination of this matter. The Court proceeded to render an Order on 24 April 2025 staying those proceedings instituted by the First Respondent.

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BACKGROUND

It is necessary to state the background of this matter in some detail.

Applicant is employed as a Director General of First Respondent. Applicant was placed on suspension in January 2025 in terms of the National Employment Code of Conduct. The suspension letter informed the Applicant that it was alleged that Applicant had committed acts of misconduct inconsistent with the fulfillment of the express or implied terms of and conditions of the employment contract. It was specifically alleged that Applicant had between October 2021 and May 2023, as the person in charge of the Laboratory Support Services Project funded by the Centre forDisease Controland Prevention allowed top management to receive ‘double-dipping’payments including a sum of USD$ 206 000-00 in respect in respect to a similar project that was being funded by the United Nations Development Program, leading to CDC disallowing the payments to the disrepute of the First Respondent. The further allegation was that Applicant had failed to disclose that CDC had carried out site inspection of First Respondent in July 2023 which had negative findings on the operations of the First Respondent.

The hearing was subsequently set down before the Second Respondent. The record shows that the Applicant raised initial objections about the authority to institute proceedings against her. The hearing had to be adjourned to enable First Respondent’s legal practitioner to obtain the documents in question. When the documents were finally produced, Applicant disputed the authenticity of the documents as they contained incorrect dates and further that the meeting could not have taken place as Applicant would have been aware being one of the Directors who was supposed to be present at such meeting.

More fundamentally, Applicant raised the following objection before the Second Respondent:

“9. On 12 February 2025, the Respondent wrote a letter to the employer’s legal representative notifying it that the mandatory 14-day period to hold the hearing had lapsed. The Response was to rely on a case law distinguishable from the present matter to suggest that the employee had a right of mandamus.

10.2 (a) The purported suspension, even if it was held valid at the first instance, lapsed on the 10th February 2025 as that was the 14th day from the date of suspension. So once there could be no valid hearing on that date, there is no lawful suspension on which any disciplinary proceedings can be anchored.”

I will reproduce the pertinent findings made by Second Respondent to the application made before him:

“23. In dealing with this matter, sight must not be lost that the p[proceedings are being held under an employment code of conduct- the Model Code madeunder s 101 (9) of the Labour Act. Proceedings under a code of conduct do not necessarily need to adhere to strict rules

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of procedure and strict compliance with the same with Mathematical precision – ZB Bank v Masunda SC 48/16

24. Further attention must be drawn to the fact the present matter is a labour matter. It is trite that is undesirable to determine labour matters on technicalities’ or on faults of other employees in failing to comply with procedures- Mubingi v The Zimbabwe Bata Shoe Company SC 115/23; Air Zimbabwe v Chiku Mensa & Anor SC 89/10.

39. Section 6 (2) of the Code is couched in mandatory terms that the employer shall investigate and conduct a hearing within fourteen days from the date of suspension. What is amiss from that section is the consequence or sanction for failing to comply with the time limit. This piece of law is silent in that regard but the question has been tested in the courts. I am however not convinced with the proposition by the employee’s counsel that the delay on its own renders the proceedings a nullity. In the absence of legal authority, that proposition is unsustainable particularly regards being had to the weight of authorities I have referred to herein which point to undesirability of settling labour matters on technicalities.”

The hearing proceeded and the First Respondent called a witness who testified and was cross-examined byApplicant’s Counsel. The matter was thereafter postponed to other dates in the month of March 2025. On 1st April 2025, Third Respondent wrote to Applicant in the following terms:

“Please note that it has come to the attention of Board of Biomedical Research and Training Institute (BRTI), herein after called “the employer” that there is need to withdraw your suspension dated 21 January 2025 and the subsequent charges.

Accordingly, your said suspension and the subsequent charges, are hereby withdrawn. You are hereby reinstated to your position as Director General, without loss of salary and benefits.

You are directed to report for duty with effect from 2nd April 2025 at 8.00 am and ask for me as the Acting Chairperson before accessing your office.”

Applicant reported for duty as directed and met with another letter of suspension from duty with immediate effect. Aletterdated 8 April 2025 informed the Applicant to appear beforeadisciplinary hearing on 14April 2025. Therewas thus no determination by Second Respondent after the hearing as the First Respondent withdrew the matter.

THE PRESENTAPPLICATION

The Court requested Mrs. Mtetwa to address the preliminary issues raised by Respondents in the notice of opposition and then proceed to deal with the merits of the application. The following submissions were therefore made in that spirit.

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Applicant has approached this Court on an urgent basis. Applicant’s story as submitted by Mrs. Mtetwa is as follows. After having been given the letter of withdrawal of charges and reinstatement, Applicant was surprised to be met with another letter of suspension. However, what surprised Applicant was that the fact she was going to appear before the Second Respondent. This is stated as follows:

“Further take notice that in line with section 6 (4) (b) of SI 15 of 2006, this notice also serves to inform you that during the hearing, you will appear before Mr. E. Matika who is the Disciplinary Authority appointed by the employer in terms of SI 15 of 2006.”

Mrs. Mtetwa submitted that Applicant started making frantic efforts to have clarifications with the Second Respondent after having received the letter dated 8 April 2025 from Third Respondent. She argued that it was not correct that a Hearing Officer who had heard the matter and had not made a determination would sit for the second time and hear evidence afresh. Mrs. Mtetwa also submitted that no reasons had been given by the First Respondent forthe withdrawal of the charges and subsequent reinstatement. It was further argued that Applicant had initially frantically sought the views of the Second Respondent about his participation in the second hearing. She further submitted that Applicant had initially lodged her application on 11 April 2025 but due the fact that the IECMS platform had not accepted the payment tendered, the documents were then issued on the following working day.

Mrs. Mtetwa further advised the Court that Applicant had indeed attended the hearing on 14 April 2025 and presented the present application to the parties concerned. She also stated that the Applicant had applied for Second Respondent’s recusal from the matter on 14 April 2025. The decision by the Second Respondent to recuse himself was communicated on 15 April 2025. However, in the afternoon of the same date, Applicant had received another notice of hearing of 16 April 2025 at 0900 hours. This was despite the fact that First and Third Respondents were in receipt of the Urgent ChamberApplication filed with the Court.

Mrs. Mtetwa argued that it was the height of dishonesty on the part of the First and Third Respondents to argue that they became aware of the correct legal position after the rendering of a decision by the Supreme Court in a different matter. She submitted that what the Supreme Court had only done was to re-state the position of the law which was extant and had been brought to their attention by the Applicant. It was also submitted that the decision of the Supreme Court was made known on 6 March 2025 but the First Respondent had continued with the hearing on 11 March, 20 March and the subsequent postponement to 1st April 2025. Mrs. Mtetwa further submitted that the need to act was occasioned by the letter from the Third Respondent which indicated that Second Respondent was going to preside over the Applicant’s matter and that Applicant had immediately taken steps to address the anomaly. In this respect, she argued, the matter was urgent and could not wait. Mrs. Mtetwa further argued that the reliance on the Matsika Case was incorrect as the current code had been made with the need to curb the omissions in the code that allowed for hearings to continue ad infinitum. She added that the 14-day period was

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intended to complete proceedings within that period and that the intention of the Legislature could not be seen to be defeated by the wanton withdrawal of charges and their re-institution by employers. She submitted that Applicant was praying for the staying of the proceedings in the interim with the final decision being to acquit the Applicant on the basis of the evidence placed before the Second Respondent.

In response, Mr. Mavondo stated that the application was not urgent. He argued that the need to act fell on the Applicant on 2nd April 2025 when she received the letter re-suspending her and informing her of the new charges she was facing. As stated in the Opposing Affidavit, it was argued that “the urgency stemmed from a deliberate abstention from taking appropriate action until the disciplinary hearing date was set down”. The Opposing Affidavit also makes the following averments:

“4.5 The circumstances of this matter do not reveal any form of urgency. There is no irreparable harm that will be suffered by the Applicant as she is not being tried twice. The first matter was withdrawn and there is no law that stops an employer from suspending an employee without salary and benefits.”

It was also argued that the relief sought is premature and incompetent in the following manner:

“The current disciplinary hearing being conducted in terms of SI 15 of 2006 cannot be stayed as the hearing must be completed within 14 days. I am advised that the Supreme Court has recently clarified the position that exceeding the 14 day period nullifies the proceedings. By the time this matter will be heard, 14 day period will almost be up.”

Mr. Mavondo argued that First Respondent was dominus litis and could at any time withdraw the matterand reinstate the employee and still re-suspend the employee and bring her before a Hearing Officer. It was further stated that Second Respondent could have competently presided over the matterand was not functus officio. Itwas also argued that the withdrawal was never meant to defeat the employee’s rights and her rights to a fair trial had not been affected in any way. The following excerpt from the Opposing Affidavit is quite telling:

“However, it is disputed that the intention behind the withdrawal was ulterior and mala fide. Upon withdrawal of the suspension and charges, the applicant did not request for reason for withdrawal. The reason for the withdrawal was that the proceedings had exceeded the fourteen-day period that is provided for in SI 15 of 2006. I understand that the Respondents realized that the Supreme Court had a few days before, passed a judgment in the case of Traditional Medical Practitioners Council v Joyce Guhwa SC 19/25 in which I am advised the court clarified a position of the law relating to interpretation of the provisions of SI 15 of 2006 in respect to the 14 days within which a hearing must be completed. Realizing the position of the Supreme Court the Respondents sought to comply with the law hence withdraw both suspension and charges in order to start afresh. The fresh

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proceedings are based on the initial charges save for one charge that was dropped because it has been overtaken by events. There is nothing irregular in doing so.”

Mr. Mavondo further argued that the First Respondent, being dominus litis,could withdraw charges at any given time and re-institute the charges and hearings. Asked by the Court whether this could happen ad infinitum, he stated that he did not have a specific answer to that question but would rely on the documents filed of record. He went further to state that as shown in the documents filed, the relief sought by the Applicant was incompetent and the application should accordingly be dismissed.

ANALYSIS

The first issue to be determined is whether the application is urgent. If the answer is in the affirmative, what would be the appropriate relief in the circumstances. The converse would be that if the matter is not found to be urgent, it would follow the queue of other court applications.

Both parties referred to case law dealing with urgent applications. In Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H), GOWORA J (as she then was) had this to say:

“Urgency arises when an event occurs which requires contemporaneous resolution, the absence of which would cause extreme hardship to the applicant. The existence of circumstances which may, in their very nature be prejudicial to the applicant is not the only factor that a court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has realized to the event or threat, whatever it might be.”

In another judgment, ZHOU J had this to say in Nyarumbe v Nyashanu HH304/22:

“Amatter is urgent if it cannot wait to be resolved through a court application…This court has stressed that a party who seeks to have a matter on an urgent basis is seeking preferential treatment from the court given thathe is asking tobe allowed to jump the queue of other matters awaiting to be heard. It is for this reason that the court expects such a party to have treated the matter as urgent by acting expeditiously once the need arises. This point has been stressed in many judgments.’

Is the matter urgent? Did the need to act stem from the letter to Applicant dated 2nd April 2025? These questions can only be answered by relating to the facts. The letter from the First Respondent of 2 April 2025 informed the Applicant of her re-suspension and that she was going to face misconduct charges. No date of the hearing was given in the letter. What can only be surmised from such letter is that Applicant could only have been surprised at the turn of events after having been informed of the withdrawal of charges and her reinstatement the previous day. It turned out to be an April Fool’s game to her. Applicant informed the Court that the need to act arose from the receipt of the letter dated 8 April 2025 which gave her the hearing date and the name of the Hearing Officer. This letter is captured elsewhere in this judgment. According to the Applicant, it was a

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surprise that Second Respondent, who had been presiding over the matter which was withdrawn and had heard evidence for three days was still going to preside over her misconduct hearing.

It was argued on behalf of the Applicant that frantic efforts were made to confirm this position and the responses were late in coming. Mrs. Mtetwa stated that the need to act in the circumstances should be taken to have arisen on 9 April 2025. She also stated that First Respondent had not given any reasons for the withdrawal of the charges in the letter dated 1st April 2025. She scoffed at the insinuations by Respondents’ Counsel that Applicant should have requested for the reasons. She submitted that all this went to show how insincere the First Respondent was in dealing with this matter. It is my view that the explanation that the need to act was triggered by the letter of 8 April 2025 is very reasonable. This is when Applicant saw that Second Respondent was still going to preside over her. This argument is supported by the fact that on the hearing date, 14 April 2025, Applicant began by applying for Second Respondent’s recusal. It must be remembered that the application was to stay the proceedings of 14 April 2025. It therefore was urgent. The Applicant clearly showed that she acted with the swiftness befitting the circumstances.

The record shows that Second Respondent delivered his decision recusing himself from the matter on 15 April 2025. First Respondent and Third Respondent had been served with the present application. Mrs. Mtetwa advised the Court that despite having been served with those documents, Applicant was called to attend a hearing on 16 April 2025 at 0900 hours. Mr. Mavondo sought to explain this away by stating that First Respondent wanted to be compliant with the 14-day period prescribed in the National Code. The Court observes that this was Applicant’s argument before Second Respondent which was rejected by both Second Respondent and First Respondent and it now turns out tobe the pillarto lean on in subsequent proceedings. It is clear that those proceedings before the Second Respondent ought to be halted.

The interim relief prayed for by theApplicant can easily be granted. The difficulty arises from the prayer for the final relief. Applicant seeks the Court’s intervention in the proceedings that were withdrawn by First Respondent and pronounce a verdict in the circumstances. This clearly is not competent in the circumstances. What comes to mind is that the parties are still embroiled in an employment dispute wheremisconduct allegations have been levelled against the Applicant.These could have been concluded had First Respondent’s legal practitioners taken time to research on the legal position presented by the Applicant before the Second Respondent. This has led to this unfortunate position.

The Court has, elsewhere in this judgment referred to paragraph 10.2 of 1st and 3rd Respondents’ OpposingAffidavit. There is an averment that

‘it is disputed that the intention behind the withdrawal was ulterior and mala fide. ,Upon withdrawal of the suspension and charges, the applicant did not request for reason(s) for withdrawal. The reason for the withdrawal was that the proceedings had exceeded the fourteen-day period that is provided for in S.I. 15 of 2006.’

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The first issue that comes to mind is that the First and Third Respondents were the persons responsible for issuing the letter of 1st April 2025. They should have indicated the reasons for the withdrawal. The Applicant, in that letter was ordered to report for duty the following day. Would any reasonable employee request for reasons in those circumstances? I think not. Secondly, the reason given for the withdrawal was the same that had been raised by the Applicant as a preliminary point. There was no acknowledgement on the part of the First and Third Respondents that the issue had earlier been raised by the Applicant. Clearly, the law had always exited prior to the Traditional Medical Practitioners case determination by the Supreme Court. The Supreme Court merely clarified the position. The other point to be noted is that the judgment in question was rendered on 6 March 2025. However, First and Third Respondents continued to drag the Applicant before the Disciplinary Committee for nearly a full month thereafter. Applicant’s Counsel described the behaviour of the First and Third Respondents as being callous as Applicant was made to go through the hearings on 11 March, 20 March and 1st April. Mrs. Mtetwa further submitted in this respect that upon the Supreme Court judgment being delivered, an employer acting in good faith would have communicated its change of position.

When considering an order following such an application, and where a prima facie case has been established, the Court should grant such order which it considers to be just and equitable in the circumstances of the case. Where there is a faulty interim draft order, the court should decline to dismiss the urgent application but should be in a position to grant a varied interim order to suit the circumstances proved in the application. The Court should be satisfied that such order would be able to regulate the dispute between the parties. In this vein, having heard both parties make their respective submissions, it is my view that to allow the First Respondent to choose the Hearing Authority is a recipe for future applications before this Court. It is my further view that this should be left to independent persons outside the parties’ choices.

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In the result, the following Order is appropriate.

1. The application is hereby granted.

2. The hearing before Second Respondent of Applicant’s misconduct allegations is hereby stayed.

3. The hearing of Applicant’s misconduct allegations commenced on 16 April 2025 is hereby set aside.

4. The hearing shall commence de novo before an arbitrator appointed by the Senior Labour Officer from a list of arbitrators appointed in terms of section 98 (6) of the Labour Act, (Chapter 28:01).

5. The hearing referred to in paragraph 4 above shall be held within thirty (30) days of the date of this Order.

6. The parties shall draft the Terms of Reference to guide the arbitrator. 7. The First Respondent shall meet the cost of arbitration.

8. Each party to meet its own costs in the present application.

Mtetwa & Nyambirai-

Mhishi Nkomo Legal Practice-

Applicant’s legal practitioners

First and Third Respondents’ legal practitioners

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