Allen Mudzimu v Mashonaland Tobacco Company (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
19 September
JUDGMENT NO. LC/H/296/23 CASE NO. LC/H/825/22
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 19 September 2023

AND 4 October 2023

IN THE MATTER BETWEEN;-

JUDGMENT NO. LC/H/296/23 CASE NO. LC/H/825/22

ALLEN MUDZIMU	APPLICANT

AND

MASHONALAND TOBACCO COMPANY (PVT) LTD	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Advocate F. Chinwawadzimba with Mr. B. Mudiwa

For Respondent	Mr. F. Mahere

MURASI:,

This is an application for review.

Applicant was employed by the Respondent as an Engineering Manager. Respondent, initially dismissed Applicant from employment and he approached the Labour Officer. Parties agreed that the purported dismissal was un-procedural and the Labour Officer ordered Applicant’s immediate reinstatement, that is, with effect from 12 May 2023. Respondent proceeded to charge the Applicant with misconduct and a Disciplinary Hearing was set for 30 May 2023. Applicant attended the hearing with his legal practitioners. Applicant’s legal practitioners raised certain preliminary points before the Disciplinary Committee. Applicant’s Founding Affidavit contains the following explanation in paragraph 25 thereof:

“I aver that after a protracted period of addressing the Disciplinary Authority to make a determination on the preliminary point to no avail, we then decide to leave the disciplinary proceedings in protest of the Disciplinary Authority’s manifestly biased conduct and having a predetermined decision on the matter.”

In a nutshell, Applicant and his legal practitioners walked out of the proceedings. The Disciplinary Authority continued with the hearing in Applicant’s absence. Applicant further states:

“This is an application for review of the whole disciplinary proceedings held by the Respondent which purportedly pronounced the dismissal decision.”

The Disciplinary Authority proceeded to find the Applicant guilty culminating in his dismissal. Applicant has filed the following grounds for review:

The Respondent grossly misdirected (?) by initiating disciplinary hearing without having jurisdiction to conduct such proceedings.

The Respondent grossly misdirected by failure to note that there was need to first comply with the certificate of settlement before initiating disciplinary proceedings as it had the legal effect of restoring the terminated employment relationship.

There was manifest bias on the Disciplinary authority as he was clearly guided by the complainant’s legal practitioner in his refusal to make a determination on the points in limine raised by the Applicant to which the preliminary points had any effect of determining whether proceedings should continue or be stalled for want of jurisdiction.

The Respondent erred by refusing to consider that there was a pending dispute before the labour officer concerning the breach of certificate of settlement to which the outcome had the effect in confirming whether the respondent had jurisdiction on the current disciplinary proceedings.

The Respondent misdirected by first evoking the probationary clause to terminate a contract of employment and thereafter turnaround to initiate disciplinary proceedings on the same performance review issues that had been pronounced unlawful by the labour officer.

The Applicant’s Draft Order which appears at page 57 of the record is couched in the following terms:

“1. The Application for review be and hereby granted.

The decision of the Respondent to dismiss the Applicant be and hereby set aside.

The Applicant be and is hereby reinstated without loss of salary and benefits.

Alternatively, if reinstatement is no longer tenable, the Respondent be and is hereby ordered to pay to the Applicant damages for loss of employment.

The Respondent shall pay cost of suit on a higher scale of Attorney/client.

Note should be taken of the fact that at the bottom of the Form LC 5 where it is customary for a litigant to indicate the ‘prayer’, Applicant stated as follows:

“Wherefore Applicant prays for relief in terms of the Draft Order.”

At the commencement of the oral submissions, Mr. Mahere stated that he had preliminary points which he intended to raise. The first was that Applicant had proceeded to file inadmissible

documents in that Applicant had filed documents which had been supplied on a ‘without prejudice’ basis. He submitted that documents which were filed from page115 to 124 were documents which should not have been filed by the Applicant. He further pointed out that these documents pertained to information supplied during negotiations which were later abandoned and the Applicant could not be seen to place reliance on such information. He indicated that this had been brought to the attention of Applicant’s legal practitioners, but apparently this had been ignored. Mr. Mahere referred to precedent from the High in support of the contention.

The second point raised by Mr. Mahere was that Applicant lost the right to seek a review of the proceedings the minute he and his legal practitioners walked out of the proceedings. He stated that the record showed that Applicant and his legal practitioners had firstly issued a threat that they would walk and it later became a reality when they indeed walked out. It was submitted that Applicant now wanted to seek a review of the whole process. He argued that it had since been settled by the Supreme Court that a litigant could not walk out of proceedings and then turn around and express a wish to challenge that which happened in his/her absence. To this end, Mr. Mahere cited the following cases:

Forestry Commission vs Moyo 1997 (1) ZLR 254 (S)

Bere vs JSC SC 1/22

It was further submitted that one could not create a negative situation and then seek to benefit from it. Mr. Mahere stated that all what the parties had submitted was placed on record and that the Disciplinary Authority had given a brief ruling on the preliminary points raised by Applicant’s legal practitioners. It was further submitted that Applicant had lost the right to challenge the proceedings in the circumstances.

In response, Advocate Chinwawadzimba stated that the points raised were without merit. She indicated that documents on pages 27 to 30 were not marked ‘without prejudice’. She however conceded that a document at page 31 was marked ‘without prejudice’ and would qualify as a document that could be expunged from the record.

As far as the second point was concerned, Advocate Chinwawadzimba stated that Applicant intended to seek a review of the portion of the proceedings when he was still present. She stated that Applicant was going to confine himself to that portion. The Court enquired of Advocate Chinwawadzimba about the competence of the prayer in the Draft Order and that it had been indicated by Mr. Mahere that Applicant sought to impugn the whole proceedings. She later indicated that, if allowed by the Court to do so, they would was to have the Prayer amended.

ANALYSIS

It is trite that a point in limine should be one that is dispositive of the matter before a court. Having regard to this principle, I am of the view that the first point in limine raised by the Respondent, whilst having substance, would only amount to having the offending documents expunged from the record and no further. This is not to say it is a ‘blank cheque’ to the ‘offending

litigants’ to flagrantly disregard the law and proceed to file inadmissible evidence. It is clearly inconvenient to the Court which has to read the evidence and assess whether such evidence is admissible or not.

As far as the second preliminary point is concerned, precedent is awash with many cases dealing the issue of walking out of proceedings. In TM Supermarkets (Private) Limited vs Bisset Chimhini SC 41/19, it was held as follows at page 15 of the cyclostyled judgment:

“The principle that comes out of cases such as Moyo v Rural Eletrification Agency (supra) and Emmanuel Masvikeni v National Blood Service Zimbabwe (supra) is that a person cannot walk out of a hearing and thereafter allege that things done in his absence are subject to review by the court. I a review, one is concerned with the procedural propriety of proceedings and not the merits of the matter.”

Elsewhere in this judgment I reproduced a statement made by the Applicant in the Founding Affidavit. The statement is contained in paragraph 25 where the Applicant avers that “the application for review of the whole disciplinary proceedings held by the Respondent which purportedly pronounced the dismissal decision.” There were attempts by Advocate Chinwawadzimba to suggest that the application is for the period that Applicant and his legal practitioners were present. But this is not so. In Stevenson vs Minister of Local Government and Others 2002 (1) ZLR 498 it was held that:

“And, as has been said repeatedly, an Applicant must stand or fall by his founding affidavit and facts alleged in it.”

This is further compounded by the Draft Order which seeks to have the whole proceedings set aside. This is also coupled with the third preliminary point which averred the defective nature of the Draft Order. The statements made by Advocate Chinwawadzimba appealing for an opportunity to ‘amend’ the Draft Order can only lead to the inescapable conclusion that this was an admission that the application was defective in the circumstances. The preliminary points ought to be upheld.

The following Order is appropriate.

The first preliminary point is hereby dismissed

The second and third preliminary points are upheld.

The application for review is hereby struck off the roll due to its defective nature.

Applicant to meet Respondent’s costs.

Mufadza and Associates-	Applicant’s legal practitioners Gill, Godlonton and Gerrans- Respondent’s legal practitioners.