Abisai Manyonga v BAK Logistics

### Preamble
1
2IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LCH164/23
HELD AT HARARE 15TH MAY 2023 CASE NO LCH378/22
AND 15TH JUNE 2023
In the Matter Between
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2IN THE LABOUR COURT OF ZIMBABWE

Held at Harare 15th May 2023

And 15th June 2023

In the Matter Between

ABISAI MANYONGA

And

BAK LOGISTICS

Before Honourable Makamure J

For the Appellant : In Person

For the Respondent : Mrs R.T.L Matsika (Legal Practitioner)

Makamure J

Introduction

The appellant was employed by the respondent as a procurement officer. He was charged with three counts of misconduct for ‘any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract’. These were violations of paragraph 4 (a) of the National Code of Conduct S.I. 15 of 2006. The charges were as follows :

(i) ‘It is alleged that sometime in November 2021 you did not declare that you knew Blessing Mupari. Blessing is one of the directors of Dindad Investments, a supplier you engaged when you facilitated the purchase of the Mazda CX5 worth USD22,780. You went ahead to facilitate the purchase without this disclosure with the potential conflict and impact on the decision to purchase the vehicle from a supplier where he is of the directors. You only declared that you knew him from church in February 2022 during investigations surrounding the purchase of the vehicle.


(ii) It is alleged that you did not conduct due diligence when you facilitated the purchase of Mazda CX 5. This resulted in the purchase of a vehicle with material mechanical defects. You did not establish the potential cost of repairs at the time of purchase as such the decision to purchase from Dindad was based on the price without the inclusion of the potential costs. The vehicle which an engine failure approximately three months after it purchase.

(iii) It is alleged that sometime in November 2021 you breached the Procurement Policy and procedures by adding a new supplier Dindad Investments without following due process and authorization.

Disciplinary proceedings were conducted. The appellant was found guilty of all the three counts. He was penalized with dismissal. Aggrieved by that outcome he appealed internally. His internal appeal was not successful. He now appeals to this Court on the following grounds:

‘1. The appeals Officer erred and fell into error by upholding a finding of guilty on all the counts when the Complainant failed to lead evidence which met the essential elements of the misconduct charges.

2. The appeals officer erred and misdirected himself on a point of law by failing to consider that the decision to discharge Appellant on count 1 was irrational and illogical in the circumstances.’

**Preliminary Issues**

At the commencement of the hearing two preliminary issues were taken on behalf of the respondent. These were that firstly, the appeal was defective in that it was not in Form LC4. Mrs Matsika who appeared on behalf of the respondent argued that there was an important instruction on FORM LC4 for the benefit of the respondent which instruction did not appear on the form which the appellant used. The authorities which were cited in support of the use of the modified form include Zimbabwe Open University v Mazombwe 2009(1) ZLR 101(H); ZIMPLATS v Marko Phati SC21/16. Secondly, the respondent pointed out that the first ground of appeal is generalized and does not say what it is that the appellant was complaining about. The case of R v Emmerson 1957 R&N743 is one of the authorities cited in support of this position. In view of these two preliminary issues, the submission on behalf of the respondent is that the appeal be struck off the roll.

In response the appellant argued that the form that he used was substantially compliant. He referred the Court to the provisions of Rule 47 of the Rules of this Court S.I. 150/2017 which empower the Registrar of this Court to either accept or refuse to accept a modified form used by a litigant. He argued that since the Registrar had accepted the form as it was, there was compliance on his part. With respect to the second preliminary issue the appellant argued that the first ground of appeal was clear. He argued that while he was convicted of all the charges, there was no evidence in support of the charges. The appellant then proceeded to give examples of what evidence he expected.

**The Law**

Rule 19 of the Rules of this Court Statutory Instrument 150/2017 provides for appeals and cross appeals as follows (in part):

‘19 (1) A person wishing to appeal against any decision determination or direction referred to in the Act, shall, within twenty-one days from the date when the appellant receives the decision, determination or direction or award, do the following-

(a) Complete in three copies of appeal in Form LC4; and

(b) to (f)…

(2) The respondent shall, within ten days of receiving a notice of appeal-

(a) to (f)… '(Emphasis added).

And Rule 47 provides as follows:

‘Forms

47. (1) The Forms prescribed in the Schedule shall be used in all proceedings to which they are applicable with such modifications as the circumstances may require.

(2) Subject to this rule, a person required to complete any form prescribed in the Schedule may modify it by making such alterations to it as circumstances require.

(3) The Registrar may refuse to accept any modified form and require the party modifying it to submit another form substantially compliant with that prescribed in the Schedule if the Registrar is of the opinion that the modified form is not so compliant.
 (4) Where a dispute arises as to the discretion exercised by the Registrar under subrule (3), the Registrar shall refer the matter to a Judge in chambers who may thereupon-

(a) direct the Registrar to accept the modified form; or

(b) direct the party who modified the form to submit another form substantially compliant with that prescribed in the Schedule; or

(c) give such other directions as to the manner in which the parties may proceed as the Senior Judge thinks fit in the circumstances.’

Analysis

It is indeed a trite position that litigants are required to use the forms as prescribed by the rules of Court (See Ismail Moosa v Lunat v Mohammed Patel SC47/22). It is also trite that each case is considered according to its own merits. In the present case it will be noted that the provisions of Rule 19(1) referred to above place obligations on both parties. While FORM LC4 has on it an important instruction for the benefit of the respondent, the rule itself requires the respondent to react within ten days of receiving the notice of appeal. What this means is that while parties are required to use the correct forms, in the present case the absence of the instruction on the modified did not necessarily prejudice the respondent. This is because Rule 19(2) instructs the respondent what to do. This instruction apparently is what was missing on the modified form used by the appellant. Further, when one considers the provisions of Rule 47, the parties are not expected to wait until the matter has been set down for hearing in order for them to raise issues of non-compliance with the forms. Once a party is aggrieved by a form which the other party to the proceedings used, they have a right to take this up with the Registrar. If they are not satisfied with the response from the Registrar, the issue can be referred to a Judge in chambers for directions. I did not hear Mrs Matsika to say that this course of action was ever pursued on behalf of the respondent.

In Edmore Mapondera and 55Others v Freda Rebecca Gold Mine Holdings Limited SC 81/22 the Supreme Court ( Bhunu JA) stated as follows:

‘[22]Because of their legal training and the involvement of lawyers, Labour Court judges often stray into the morass of legal jargon and technicalities much to the bewilderment of the unsophisticated litigants. This unwelcome tendency has the effect of mystifying industrial legal proceedings thereby clouding the dispensation pf industrial justice. It therefore acts as a barrier to accessing industrial justice. This prompted McNALLY JA in Dalny Mine v Banda to remark that:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this I do not mean that such irregularities should be ignored. I mean that such irregularities should be put right.”

[23] In Edmore Taperesu Mazambani v International Trading Company (Private) Limited and Anor(SC88/20) MATHONSI JA had occasion to make similar remarks when he said:

‘This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities.’

What is clear is that there was an option for the respondent to pursue with the Registrar even before the matter was set down. That option was not pursued. This means that the respondent must have been satisfied with the modified form that was used by the appellant. In addition to this, the respondent the respondent is required by the rules to react within ten days. So even if the modified form did not have the important instruction, the respondent was obliged to follow the provisions of the rules and in the process comply with the instruction which may not have appeared on the modified form. This means that the respondent was not prejudiced by the modified form which was used by the appellant. Further still, it is not desirable for labour disputes to be resolved on the basis of technicalities. I am fortified in this by authorities, some of which have been referred to above. This Court is discouraged from being too technical but within reason (Marko Phuti). This is so because the purpose of the Labour Act Chapter 28:01 (the Act) will be compromised. Such compromise will also delay finality to litigation which the Act seeks to avoid.

Having stated the above, I find that there is no merit in the first preliminary issue raised. It is accordingly dismissed.

The second preliminary issue attacks the first ground of appeal. It is averred that the ground is not concise and precise. In Songono v Minister of Law and Order 1996 (4) SA 384 it was held that grounds of appeal should be able to ‘cast the complaints of the appellant in such a manner that the respondent and the court faced with the appeal know what the complaint is.’ The appellant in the present matter is complaining about ALL the counts (three). What I understand is that he is aggrieved by each and everyone of those counts. Instead of listing them one by one he said ‘all’. I am of the considered view that that is as concise and precise as a lay person can be. In Muchakata v Netherburn Mine 1996(1) ZLR 153(S) the court made the following remarks regarding an unrepresented litigant:

‘From the above, it seems to me that what the appellant all along sought to articulate was that it would be improper for him to preside over cases as requested by management. Being a layman, he could not put across in legal terms what he felt and thought was wrong with what he was requested to obey. The Board took pains to understand the unrepresented appellant.’ (Emphasis added).

Conclusion

The court understands that the appellant is aggrieved by all the counts that he was charged with and convicted of. I think that the respondent understands that the respondent appreciates this as well. What needs to happen is to allow the appellant to articulate exactly what he means. This can only happen if he is given a chance to state his case in full. This means that the merits of the matter must be heard.

In view of the foregoing I find that there is no merit in the second preliminary issue raised. Accordingly, the second preliminary issue is dismissed.

Having dismissed the preliminary issues raised, it is ordered that the matter be set down for hearing of the merits on the nearest available date.

WINTERTONS, LEGAL PRACTITIONERS FOR THE RESPONDENT
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