Zimbabwe Electricity Transmission VS Amisi Mutalika

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Case No. LC/H/504/25
Judgment No. LC/H/343/25
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Case No. LC/H/504/25

Judgment No. LC/H/343/25

ZIMBABWE ELECTRICITY TRANSMISSION VS

AMISI MUTALIKA

THE LABOUR COURT OF ZIMBABWE BULAWAYO, 3MARCH 2025, 25 SEPTEMBER 2025

For the applicant;	Mr.T.Mashingaidze For the respondent; Mr. P.Nyanika

JUDGEMENT

HOVE J: This is an appeal against the decision of the appeals committee, issued on 8 May 2024 which upheld the respondent’s appeal and remitted the matter back for a hearing denovo before a different Disciplinary Committee.

The appellant was dissatisfied with the decision and noted this appeal to the Labour

Court.

BACKGROUND

The respondent was employed by the appellant as a Lead Artisian based at Shurugwi depot. He was charged with acts of misconduct it being alleged that he had engaged in occupation outside the scope of his normal duties and insubordination or disobedience in terms of the Zimbabwe and Energy Supply Industry Employment Code of Conduct 2011 (code of conduct). He was found guilty by the Disciplinary Committee. The respondent was dissatisfied with the outcome of the disciplinary committee proceedings and noted an appeal to the appeals committee. The appeals committee upheld his appeal and remitted the matter for a hearing de novo before a differently composed disciplinary committee. The appellant was dissatisfied and hence the noting of this instant appeal.

GROUNDS OF APPEAL

The grounds of appeal are seven and they were that:

The appeals committee a quo erred at law and misdirected itself in not finding that the respondent had waived his right to persist with an objection against the Chairperson of the Disciplinary Committee aquo when he made an application for postponement of the hearing which was granted by the same committee.

The appeals committee aquo erred in failing to interpret the provision of section 19 (1)

(a) (b) of the National Employment Council for the energy Industry code of Conduct to the effect that the appellant complied with the same.

The appeals committee aquo erred in coming to the conclusion that there was a real possibility of bias by the chairperson of the disciplinary committee aquo against the respondent in the presence of avowed evidence that the chairperson decision to extend his mandatory leave was merely administrative in nature.

The appeals committee aquo erred at law and misdirected itself by failing to hold that the disciplinary committee aquo was properly constituted as the respondent’s appointed committee representatives had deliberately absented themselves.

The appeals committee aquo erred and misdirected itself due to his disruptive behaviour which was contrary to the spirit and letter of the nature of the disciplinary hearing proceedings.

The appeals committee aquo erred at law and misdirected itself in not finding that the respondent had waived and abandoned his right to attend hearing proceedings by deliberately absenting himself.

The appeals committee aquo grossly erred in finding the respondent not guilty in circumstances where:

Appellant’s evidence in respect of the first charge was uncontroverted that the respondent had supplied and delivered the transformer to the customer.

There was overwhelming evidence in respect of the second charge that the respondent had not complied and followed the rules and procedures for customer supplied materials.

PRELIMINARY POINT BY THE APPELLANT

When the matter was decided by the appeals committee on 8 May 2024, there was indication that the record of proceedings was being prepared and that it would be availed though the appellant could still exercise its right to appeal should it be so minded.

A dispute on the date of the hearing. The appellant challenged the record that was later provided as being not a true reflection of what transpired in the appeal hearing. The minutes were not signed nor were they confirmed.

It was argued by Mr. Nyakunika that the issues they had raised on behalf of their client had not been correctly captured in the minutes. The record was argued to be inaccurate and incomplete.

These submissions were resisted by Mr Mashingaidze who argued that the record covered everything. He argued that there was no requirement that all the members of the appeals committee should sign. The requirement only applied to the disciplinary committee record and not the appeal record. He insisted that the record capture everything and was correct.

The parties argued backwards and forwards on whether or not the provisions that require the signing of the record by the committee members also applied to the signing of the record of the appeals committee.

THE ISSUE FOR DETERMINATION:

It appears to me that the issue that the court is seized with is whether or not the record placed before it is a true reflection of what transpired before the appeals committee and in the event that it does not correctly reflect the proceedings before the appeals committee, what should be the remedy.

The appellant argued that the appeals committee did not deal with the merits of the appeal but the appeals committee record shows that the merits were dealt with and decided.

It is clear that there is a dispute of facts on whether or not the record is a true reflection of what transpired in the appeal hearing. One party insists that the record is not a true reflection

of what transpired. This dispute of fact cannot be resolved on the basis of the disputed record. The court is sitting as an appeal court and it decides appeals on the basis of the record. A disputed record cannot assist the court in deciding the appeal. The Supreme Court in the case of Public Service Commission and another V Tsomondo 1988 (1) ZLR 427 (S) held that where there is a genuine disputed fact evidence must be called or the matter remitted for purposes of resolving the factual dispute by hearing evidence.

It is clear that there are allegations that the secretary who authored the disputed record was biased in favor of one of the parties. So, the appeals record was written by a committee member who was partial. It would serve no purpose to remit the matter to the same appeals committee.

There were submissions that the matter should be postponed until a proper record can be availed. In view of my observations in the preceding paragraph, it is unlikely that a member of the appeals committee who is partial can produce a proper record.

This court has the power to hear a appeal in the wider sense in that it can itself call evidence to clarify the disputed facts but where the entire record is alleged to be inaccurate, an appeal court cannot hear the appeal on the basis of the disputed record. In the case of Ncube V Ntombi HB 49-05.

The learned Judge stated that when a proper record is not placed before the court,

“It becomes very difficult, if not impossible, to determine the merits of the appeal. The court is obliged to refer the matter back to the Magistrate for a trail de nova at great expense and, inconvenience to the parties.”

In the Ncube case supra, the court was dealing with an inadequate record which had been placed before it from the Magistrates Court. The record did not, in the court’s opinion, meet, the basic requirements of a record. The same difficulties that the court then lamented are the same difficulties that this court would face in hearing an appeal, on a record that is disputed.

An appeal is on record and it stands to reason that a record that is disputed as is the case in casu, will not enable the court to properly deal with the appeal.

The courts have stated that adequate records must be placed before the court. See in this regard the cases of Arthur V Bezurdanhout and Miney 1962 (Z) SA 566 (A), Musorwa V Munuki 1994 (2 ZLR 261, Goronga V Nezungai HH120/03. In light of the fact that the parties in casu are not agreed on the record, the decision aquo must be set aside and the matter remitted for a hearing de novo before a differently constituted appeals committee.

ORDER

The decision of the appeals committee appealed against be and is hereby set aside.

The matter is remitted for a hearing denovo of the appeal before a differently constituted appeals committee.

Each party bears its own costs.

NYASHA BRIGHTON MUNYURI FOR THE APPLICANT

INGWANI CHIPETIWA GROUP OF LAWYERS - THE RESPONDENT