Zimbabwe Anti-Corruption Commission v Stanford Garufu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/138/2020
HARARE, 30 JANUARY 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/138/2020

HARARE, 30 JANUARY 2020		             CASE NO. LC/H/APP/127/19

AND 19 JUNE 2020

In the matter between:-

ZIMBABWE ANTI-CORRUPTION			Applicant

COMMISSION

And

STANFORD GARUFU					Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr L.T. Muradzikwa (Legal Practitioner)

For Respondent		Mr A. Dururu (Legal Practitioner)

CHIDZIVA, J:

This is an application for leave to appeal against the decision of this court that was handed down on the 31st May 2019. This court in its judgment found that the Applicant had erred by applying SI 15/2006 when there were regulations that were provided for it to apply in conducting disciplinary proceedings.

It is the applicant’s argument that the Standing Orders which would have enabled the Applicant to discipline the Respondent were non-existent and there was no way the Applicant could have charged the Respondent using a non-existent law.

On the other hand the Respondent argued that this court was correct in finding that the Applicant should have employed regulations provided for in the Constitution as well as the Anti-Corruption Commission Act.  Section 3 of the Labour Act excludes the Anti-Corruption Commission. It further argued that the Applicant should not try to use their own default in making orders.

The case of National Unite of Metalworkers of SA & Ors vs Fry’s Metals (Pvt) Ltd 2005 (5) SA 433 stated that the test for leave to appeal is that the court should consider whether there is a reasonable prospect of that another court could come to a different decision than that of the trial court.

In the case of Karbochen Salisbury (A Division of Santracha Ltd) vs Kriel and Others 1999 20ILJ2889 it was held that the test is as follows,

“I have understood that the test in deciding whether to grant leave to appeal is the traditional test.  It requires a judge to ask whether there is a reasonable prospect that another court may come to a different conclusion.”

The Zimbabwe Anti-Corruption Commission was already in existence in 2009 being governed by its regulations. In terms of Section 89 (1) of the Labour Act the Labour Court does not have jurisdiction to entertain matters which are not governed by the Labour Act. The Commission had employees but there regulations were not gazetted. If the commission was using the ungazetted regulations to administer and employ its officers were they not suppose to be using the same regulations to discipline its officers.

In my view this is an arguable case which should be taken to the higher court for consideration.

In the circumstances I order as follows;

The application for leave to appeal be and is hereby granted.

Each party shall bear its costs.

Civil Division of Attorney General’s Office, applicant’s legal practitioners

Dururu A. & Associates, respondent’s legal practitioners