ZB Bank v Ivayi Muzeziwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/713/2013
HARARE, 7 OCTOBER 2013
CASE NO.
JUDGMENT NO. LC/H/713/2013
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/713/2013

HARARE, 7 OCTOBER 2013	           	               CASE NO. LC/H/907/12

AND 17 JANUARY 2014

ZB BANK		 					   Appellant

IVAYI MUZEZIWA					   	   Respondent

Before Honourables F.C. Maxwell & G. Musariri, Judges:

For Appellant		Ms N. Moyo (Legal Practitioner)

For Respondent		Mr T. Marimo  (Trade Unionist)

MAXWELL J.;

This is an appeal against a decision of the National Employment Council for the Banking Undertaking.

Appellant employed Respondent as a Data Capture Operator in March 1996.  In March 2011, she was laterally transferred to the Appellant’s Fife Street branch as a Back Office Operator.  After attending and passing the ledgers and tellers courses she became a teller.

On the 8th of May 2012 Respondent is alleged to have recorded a school fees deposit for one Mr Johnson Ticharwa for $230.00.  The client had tendered $250.00 resulting in the client receiving change of $20.00.  The Respondent entered a wrong account number for Marula primary School.  The money did not reflect in the school records and the client returned to the bank to query why.  The deposit slip was missing from the records of the bank.  Respondent is also alleged to have declared a surplus of $210.00 of which $200.00 was traced to one Mr John Tallach.  When asked for an explanation Respondent is alleged to have claimed that she could not recall anything nor give a meaningful explanation.  She was asked to pay the $230.00 and was also charged with the following offences;

Theft or Fraud.

Falsification of records or any document whether of a personal nature or otherwise.

Negligence causing loss to the bank.

She appeared before a Disciplinary Committee and was found guilty of the first and second offences.  She was dismissed with immediate effect.  She appealed to the Grievance and Disciplinary Committee which reached a deadlock on two separate occasions.  The matter was thereafter referred to the National Employment Council.

In the Heads of Argument and on the hearing of this matter Respondent raised points in limine.  Respondent argued that Appellant was barred from being heard for it is approaching the Court with dirty hands.  It has not complied with the decision of the National Employment Council Appeals Board which ordered that the Respondent be reinstated.  Appellant had also not sought interim relief.

Respondent also argued that Appellant was barred as it had not filed its Heads of Arguments.  In terms of the Labour Court Rules SI 59/2006 Appellant was supposed to file Heads of Argument 14 days after receiving the notice of response.  This second point was however abandoned at the hearing as Appellant had filed its Heads of Argument.  It is the “dirty hands” argument that is the subject of this judgment.

In response, Appellant argued that Respondent herself was not properly before the Court.  The notice of response was filed several months after the appeal had been noted and after the Appellant had filed Heads of Argument.  Appellant further argued that the issue of dirty hands cannot be made in argument but should be raised in the notice of response.  For this Appellant referred the Court to the judgment in the matter of Chamber of Mines v Associated mine Workers Union of Zimbabwe LC/H/250/12.

Appellant further argued that ordinarily a litigant would pay back pay while appealing.  In this instance the order appealed against does not order the payment of back pay.  Appellant alleged that Respondent has not sought to return to work in terms of the order.  Further Appellant argued that one does not have dirty hands simply because of failure to comply, it is where one failed because of fraud, dishonesty or misrepresentation.  For this argument Appellant relied on the Namibian case of Petrus Shaanika & Others v The Windhoek City Police and Others Case No. SA 35/2010.  It seems Appellant was of the View that it had no obligation to comply with the order as according to submissions on its behalf.

“… the basis of interfering with the penalty was wrong.”

Respondent clarified that the notice of response was filed without instruction from the Registrar as required by the rules.  The Court is satisfied that the Respondent is properly before the Court.

The Court does not accept that the point in limine was wrongly raised at the point it was.  The case cited by Appellant in connection with this issue is clearly distinguishable.  In the Chamber of Mines Case (supra) Respondent had not raised the issue in his papers and neither had he indicated to Court that he had a point in limine to make.  He only raised it after the Court had heard Appellant’s side of the story.  In casu Respondent raised the issue in her Heads of Argument and before Appellant presented its case to the Court.

Section 92 E (2) of the Labour Act [Chapter 28:01] provides that;

“An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.”

Where a party is of the view that it would suffer prejudice were it to comply with the decision appealed against, then it ought to take advantage of the provisions of Section 92 E (3) of the said Act which provides as follows:

“Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires.”

No application has been made before the Court asking it to stay execution pending the determination of the appeal. Appellant seemed to argue that since the order appealed against did not order payment of back pay but only reinstatement there was no obligation on it to comply.  Clearly there is no legal basis for that argument and counsel did not refer the Court to any case authorities on that issue.

The Court does not accept that the doctrine of dirty hands only applies where there is fraud, dishonesty or misrepresentation.  The Appellant has referred to the Namibian case which stated on page 12.

“The approach of the Zimbabwean Court in this respect is at odds with the way in which the doctrine of unclean hands has been understood in Namibia.”

Appellant did not supply case authority on how the doctrine of dirty hands “has been understood in” Zimbabwe.  In Zimbabwe the Courts are not prepared to entertain a party who has not purged his non-compliance.  This has been demonstrated in a number of cases before this Court including,

POSB v Rango Chemusora LC/H/136/13

and

Stanbic Bank of Zimbabwe v Litchell Mandireyi LC/H/462/12

referred to by Respondent.  This is in line with the Supreme Court case of Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister for Information and Publicity in the President’s Office and Others 2004 (1) ZLR 538. This court is obliged to align itself with the position enunciated in the Supreme Court of Zimbabwe.

To that end I will uphold the point in limine as raised by the Respondent and refuse to hear Appellant’s appeal until it has purged its contempt.

……………………………………………………….

F.C. MAXWELL

JUDGE

……………………………………………………… I agree

G. MUSARIRI

JUDGE