Traditional Medical Practitioners Council v Joyce Guhwa

### Preamble
Judgment Number No. SC 19/25
1
Civil Appeal No. SC 105/24
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REPORTABLE	(19)

TRADITIONAL     MEDICAL     PRACTITIONERS     COUNCIL

v

JOYCE     GUHWA

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, BHUNU JA & CHATUKUTA JA

HARARE: 5 JULY 2024 & 6 MARCH 2025

L. T. Muradzikwa, for the appellant

M. Kavhumbura with Ms C. Mafeni, for the respondent

CHATUKUTA JA:

This is an appeal against part of the judgment of the Labour Court (the court a quo) handed down on 13 March 2023 which upheld the respondent’s application for review of the decision of the appellant’s Disciplinary Tribunal (the Tribunal) dismissing her from employment and ordering her reinstated to her former position of employment without loss of salary and benefits.

FACTUAL BACKGROUND

The appellant is the Traditional Medical Practitioners Council, a regulatory body established under the Traditional Medical Practitioners Council Act [Chapter 27:14]. The respondent was employed by the appellant as a Registrar since November 2011.

By letter dated 25 February 2021, the respondent was notified by the appellant’s board chairperson, one Dr Gurure, of her suspension from employment without pay.  The letter indicated that the suspension was with effect from 25 February 2022.  The respondent acknowledged receipt of the letter on 25 February 2022.  The respondent was charged with acts of misconduct as defined in s 4 of the Labour National Employment Code of Conduct, 2006, (SI 15/2006) (the Code) being:

Any act of conduct or omission inconsistent with the fulfillment of the express or implied conditions of contract;

Theft or fraud; and

Gross incompetence or inefficiency in the performance of work

The appellant alleged that from 01 January 2018 to 25 February 2022, the respondent failed to ensure that proper books of council accounts were kept and failed to account for how funds were used.  It was also alleged that the respondent showed incompetence or inefficiency by failing to produce reports on time and failing to ensure that necessary documents were in place so that council accounts were audited.

A special audit was conducted from 7 March 2022 to 14 March 2022.  The audit report though dated 27 May 2022 was availed to the appellant in August, 2022.

On 1 September 2022, the respondent was invited to a disciplinary hearing to be held on 9 September 2022 and was further advised to submit a written response to the charges preferred against her.  In a letter dated 9 September 2022, the respondent requested for a copy of the special audit report and the witness statements to enable her to respond to the allegations against her.

Disciplinary hearings were held before the Tribunal on 13 September 2022, 20 September 2022, 17 October 2022 and 04 November 2022.

The respondent pleaded not guilty to the charges against her.  She raised procedural issues that the suspension was unlawful because the disciplinary hearing was supposed to be conducted within 14 days from the date of suspension after which she was meant to be reinstated, but instead she was suspended in excess of 8 months.  The respondent further contended that she received the special audit report a day before the hearing as opposed to 3 days prior to the hearing date in accordance with the Code.

On the merits, the respondent argued that her job description as per her contract of employment did not state that she was required to handle books of accounts or perform financial duties.

The appellant led evidence from one Mr Kanda, the accountant to the appellant.  Mr Kanda testified that it was the respondent’s duty as the registrar to submit the necessary books for the audit but failed to do so.

The appellant also led evidence from the board chairperson.  The chairperson testified that as the Registrar, the respondent was responsible for ensuring the proper maintenance of the cashbook.  He further testified that the respondent was responsible for the appellant’s affairs in accordance with the Public Entities Corporate Governance Act [Chapter 10:13] and that the Act overrides the job description.

The Tribunal held that in labour matters, the procedural technicalities raised by the respondent were inconsequential as they did not hold more weight than the merits of the dispute.  It held that the respondent’s uncooperative behavior with the audit team, by failing to hand over the necessary books and documents, resulted in the delay in the preparation of the audit report.  It further held that the respondent, being the Registrar, assumed the responsibility to manage the appellant’s finances as the appellant did not have an accountant to deal with the appellant’s financial affairs.  She therefore failed to manage the appellant’s finances properly.  The Tribunal also found that the respondent was suspended without pay from March 2022 to November 2022 in violation of the Code.

In the result, the Tribunal found the respondent guilty as charged and dismissed her from employment with effect from the date of receipt of the discharge notice.

PROCEEDINGS BEFORE THE COURT A QUO

Aggrieved with the decision of the Disciplinary Committee, the respondent filed an application for review before the court a quo.  She contended that the appellant failed to avail the necessary supporting evidence to the charge sheet before the commencement of the disciplinary hearing proceedings contrary to the Code.  She further contended that the appellant contravened s 6 (2) of the Code by failing to investigate and conduct the disciplinary hearing within 14 working days from the date of suspension as provided for under the section.  She further contended that the provision does not allow an extension of the period beyond the 14 days.

The respondent argued that as a Registrar of the Council, her statutory duties were restricted to secretarial services in terms of s 17(2) of the Traditional Medical Practitioners Act [Chapter 27:14] and not the preparation and management of books of accounts as alluded to by the appellant.  She also argued that the suspension letter was a nullity because the chairperson of the appellant’s board, Dr K. T. Gurure, who issued the letter, was only appointed as the Director of the appellant after the letter was issued.

The appellant opposed the application on the premise that the respondent was provided with sufficient documentation to formulate her defense against the allegations she was facing.  The appellant further argued that the disciplinary proceedings could not be completed within the stipulated timeframe because the respondent was unwilling to cooperate with the auditors which led to the delays in the finalization of the audit.

The appellant argued that the issues raised by the respondent pertaining to the unlawful suspension letter should have been raised at the disciplinary hearing.  The appellant further argued that the issue was not a ground for review.

DECISION A QUO

The court a quo dismissed some of the respondent’s grounds of review.  It upheld the respondent’s grounds of review in which she challenged the validity of the letter of suspension, the failure to complete the investigations and conduct the disciplinary hearing within 14 days.  It is against the findings on these grounds of appeal that the appellant is appealing.

The court a quo found that Dr. Gurure was not the chairperson of the applicant’s Board on 25 February 2021.  The court also found that the notification for the respondent to attend the disciplinary hearing was issued on 21 September 2022 when Dr. Gurure was a Director on the Board.  The court therefore held that Dr. Gurure lacked the authority to suspend the respondent.

The court a quo held that the failure to complete the disciplinary hearing within the prescribed period was an irregularity vitiating the proceedings.  It set aside the decision of the disciplinary committee and reinstated the respondent to her position without loss of salary and benefits.

Aggrieved, the appellant noted this appeal on the following grounds:

GROUNDS OF APPEAL

The court a quo erred in deciding that an employee validly suspended, because of delay alone, becomes entitled to reinstatement and reversal on review of a subsequent dismissal.

The court a quo erred in making a finding which is not supported by facts on record when it found that the suspension was effected by an unauthorized person when in actual fact the suspension was done on 25 February 2022 and not 25 February 2021 by an authorized authority.

The court a quo erred in considering evidence of a video or audio recording which was not part of the record in arriving at its decision.  The effect of the admissibility of such production entitled the respondent with an order in her favour which was wrong at law.

PROCEEDINGS BEFORE THIS COURT

APPELLANT’S SUBMISSIONS

Mr Muradzikwa, for the appellant, conceded that a disciplinary hearing should be conducted within 14 days of suspension in accordance with the Code.  He however submitted that in the present case, the disciplinary hearing could not be held within 14 days because the audit could not be completed within that timeframe.  The respondent had contributed to the delay by failing to cooperate with the audit team.  He submitted that the suspension letter was mistakenly dated 25 February 2021 when it should have been dated 25 February 2022 and as such, the suspension was lawful.

Mr Muradzikwa further submitted that the court a quo misdirected itself when it admitted into evidence an audio recording from the respondent which was not part of the record.  He submitted that the type written minutes by the respondent were not signed and were different from the transcribed minutes the disciplinary committee relied on.

RESPONDENT’S SUBMISSIONS

Per contra, Mr Kavhumbura, for the respondent, argued that the court a quo took a cumulative consideration of the irregularities that marred the disciplinary hearing proceedings and that therefore the court a quo could not be faulted for failing to condone non observance of peremptory provisions.  He further contended that the inconsistencies between the transcribed minutes and the set of minutes as per the employee’s version were clearly demonstrated by the respondent and were not disputed by the appellant. He thus prayed that the appeal be dismissed with costs.

THE ISSUE

Notwithstanding the multiple grounds of appeal and the submissions by the parties, only one issue is dispositive of this appeal.  This is whether the delay in conducting a disciplinary hearing within fourteen days of the date of suspension was a gross irregularity rendering the proceedings before the disciplinary tribunal a nullity.

APPLICATION OF THE LAW TO THE FACTS

In terms of s 6 (2) of the Code, an employer is required to investigate and conduct a hearing within 14 working days from the date of suspension of an employee.  The section reads as follows:

“6 (2) Upon serving the employee with the suspension letter in terms of subs (1), the employer shall, within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of the employee and, may, according to the circumstances of the case—

serve  notice, in writing, on the employee concerned terminating his or her contract or employment, if the grounds for his or her suspension are proved to his or her satisfaction; or

serve a notice, in writing, on the employee concerned removing the suspension and reinstating such employee if the grounds for suspension are not proved.

Failure to comply with the timeframe set out in s 6 (2) of the Code raises a jurisdictional issue.  The use of the word ‘shall’ denotes that the provision is peremptory and must be adhered to.  Both the investigation of the allegations of misconduct and the disciplinary hearing must be conducted within 14 working days. The section does not provide for an extension of the timeframe.   Upon the lapse of the 14 days period, the disciplinary authority ceases to have jurisdiction to determine the matter.  It is an established principle of our law that anything done contrary to the law is a nullity.  Any proceedings held and any determination made outside the period is therefore a nullity.   See Mcfoy v United Africa Co Ltd [1961] 3 ALL ER 1169 at 1172.

Lovemore Madhuku in Labour Law in Zimbabwe, remarked at p 133 that:

“It is clear from the scheme of the Model Code that the 14-day period applies to the entire proceedings.  If that were not so, there would not be a time-limit to the proceedings, a result clearly at odds with the Labour Act’s protection of employees against unfair dismissal.  The legal effect of failing to complete the disciplinary process within 14 days is not expressly provided for in the Model Code.  There are three possible answers.  One is that failure to meet the time-limit renders the proceedings a nullity.  The other is that it merely creates a dispute entitling the aggrieved party to refer the matter to a labour officer in terms of section 93.  The third is that it merely gives the employee the right to apply for a remedy, called a mandamus, compelling compliance with time-limits.  It is submitted that, by necessary implication, failure to complete the disciplinary process within the 14-day period renders it a nullity.  The employee is then treated as if no disciplinary process had ever been initiated.  However, on the principle in Standard Chartered Bank v Matsika (supra), the employer is not precluded from initiating fresh proceedings either on the same or different charges.  An order of mandamus is only available in the High Court and it could never have been the intention of the framers of the Model Code that the failure to comply with the 14-day period merely entitles the aggrieved party to have such a remedy.”(Own emphasis)

This Court further in Mukwaira v Minister of Lands, Agriculture, Fisheries, Water & Rural Settlement SC 15/24, at p 16, reiterated the sentiments expressed in S v Gatsi; S v Rufaro Hotel (Pvt) (Ltd) t/a Rufaro Buses 1994 (1) ZLR 7 (H) at p 28-29, wherein the court remarked as follows: -

“Where a statute requires that something be done without stating the consequence of non-compliance with the provision, the normal course followed in order to determine the consequence is to ascertain whether the provision concerned is peremptory or merely directory.  If it is peremptory, then the act is a nullity; if it is directory, then the act has legal effect despite the non-observance of the provisions of the statute.  In Lion Match Co v Wessels 1946 OPD 376 Van den Heever J (as he then was) pointed out that the expressions peremptory and directory, as applied to statutory provisions, are unfortunate ones, as the court is concerned not with the quality of the command but with unexpressed consequences following from it, as presumed to have been intended by the Legislature…”

The respondent was suspended on 25 February 2022.  The disciplinary hearing commenced on 13 September 2022 and was concluded on 1 November 2022.  The investigations and the disciplinary hearing were supposed to have been completed on or before 16 March 2022.  Whilst the investigations may have been completed within the 14 days period, the hearing only commenced 8 months after the date of suspension and completed after a further two months well after the disciplinary authority had ceased to have jurisdiction.  The proceedings before the disciplinary authority were therefore a nullity.

The court a quo was correct in holding that the failure by the appellant to adhere to the timeframe resulted in procedural unfairness and hence the proceedings could not stand.

DISPOSITION

In view of the above finding, the appeal cannot succeed.  Costs follow the cause.

The appeal is accordingly dismissed with costs.

GWAUNZA DCJ	:	I agree

BHUNU JA		:	I agree

Civil Division of the Attorney General’s Office, appellant’s legal practitioners

Kavhumbura Law Chambers, respondent’s legal practitioners