Lot Siyatimbula v Victoria Falls Municipality

### Preamble
1
HB 219/20./20
HC 2676/19
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LOT SIYATIMBULA

Versus

VICTORIA FALLS MUNICIPALITY

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 13 JULY & 8 OCTOBER 2020

Opposed Application

Advocate P. Dube for the applicant

T. Nkala for the respondent

MOYO J:	This is an application for a mandatory interdict to compel the respondent, within 5 days of the granting of this order to  appoint an appeals officer or set up an appeals committee in accordance with the provisions of section 8 (1) of the Labour (National Employment Code of Conduct)  Regulations Statutory Instrument 15/2006 so that the applicant can file its appeal against the decision of a Disciplinary Committee which convicted him of misconduct and imposed the penalty of dismissal from employment.  The respondent opposes the application.  The facts of the matter are that until February 2017, the applicant was employed by the respondent as a Director of Housing and Community Services.  In February 2017, the respondent suspended applicant from employment and charged him with acts of misconduct in terms of section 6 (1) of the Labour (National Employment Code of Conduct) Regulations, 2006 (SI 15/2006).  The parties then agreed to set up an external disciplinary authority in the form of Mr J. J. Moyo a senior legal practitioner.  On the 1st of June 2017, the Disciplinary Authority found the applicant guilty of misconduct as charged it then imposed a penalty of dismissal of the applicant from employment.

The applicant also raised a point in limine regarding the deponent’s authority alleging in particular that the person who deposed to the opposing affidavit did not prove that they had the requisite authority to do so.  The deponent to the opposing affidavit is the respondent’s Chamber Secretary.  There is ample authority to the effect that the attachment of a resolution should not be taken out of context or blown out of proportion and that where there is no reason or evidence to show that the deponent lacks such authority there is no reason to disbelieve a deponent who says so.  Refer to the case of African Banking Corporation of Zimbabwe Ltd t/a BANCabc v PWC Motors (Pvt) Ltd & Others HH-123-13.  I accordingly dismiss the point in limine and find that the opposing papers are properly before me as no cogent reasons to suggest otherwise have been given.

On the merits, the respondent opposes the applicant on the basis that it is not practicable for it to constitute an appeals committee considering its size and circumstances which is why an external disciplinary authority was constituted.  Section 8 (1) of SI 15/2006 provides:

“Depending on the size and circumstances of an establishment, an employer may appoint a person in his or her employment as an Appeals Officer or with the agreement of his or her employees or worker representative an Appeals Committee to preside over and decide an appeal.”

The respondent avers that from its size and circumstances it is unable to do so.  A question that immediately arises is how then will I compel respondent to do that which it has already stated it is unable to do due to its size.

It is also not clear whether the Appeals Committee should be set up right away after a disciplinary hearing or whether the applicant should first advise respondent of his intention to appeal before such a committee is constituted.

The “may” wording in the statutory instrument further complicates issues because the action is not peremptory per the statutory instrument.  In my view, the wording of the statutory instrument, should have been peremptory failing which there should have been a proviso to the effect that, provided where the organisation’s circumstances are such that an appeals committee cannot be constituted, then the following situation should obtain.  To leave the setting up of an appeals committee’s at the discretion of an employer with no fall back clause by the employee creates practical difficulties in my view.  From the facts before me, it is not clear at what stage the applicant notified the respondent of his intention to appeal, I say for both parties embarked on a route that shows that the appeals avenue may never have been explored.  Even if the court were to find that the appeals committee had to be automatically set without any requests by the applicant, still the practical difficulty of doing so as the respondent alleges it cannot, how would this court compel respondent to do that which respondent has already averred, is not practically possible when the provision itself is to the effect that this may be done when the size and circumstances of the organisation being the employer permit?

Applicant avers that its appeal against the arbitrator’s decision was struck off the roll by the Labour Court as the proceedings before the arbitrator were a nullity and that the appeal to that court was thus not in terms of section 98 (1)) of the Labour Act.  Applicant’s counsel referred this court to the case of Mafumire vs Min of Public Service Labour & Social Welfare & Anor CCZ 01/20.  A reading of that judgment however, would show the Con Court held that the applicant in the case pursued wrong redress and I believe the current applicant has also suffered the same fate.

I am unable to grant a mandatory interdict in these circumstances where to start with, the provision being sought to be enforced is worded in an elective thrust on the part of the employer.  I am unable again to fill the gap that is glaringly missing in the statutory instrument, that which provides for the scenario where the size and circumstances of the employer are such that it may not set up an appeals committee.  The law itself should provide for what should happen in such a case.

The courts interpret the law but they do not make it or fill gaps for if I find for the applicant which law will I be enforcing herein?   The law should provide an alternative on those organisations whose size and circumstances do not allow them to create an appeals committee.  Once the legal provision is there then as the courts we shall enforce it.  In this case the gap in the law is such that applicant is hamstrung.  I however cannot create a right for him

I accordingly find that the applicant has failed, on the basis of the cited provision to make a case for the relief sought considering the size and circumstances of the respondent and the elective nature of the provision.  In the circumstances I cannot find that a case has been made for the relief sought.

I accordingly make the following order:

The application is dismissed with costs.

Ncube & Partners, applicant’s legal practitioners

Messrs Dube, Nkala & Company, respondent’s legal practitioners