Boniface Mahwere v Gerald Chipumha N.O and Zimbabwe Building Contractors Association

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/189/24
HARARE 29 JANUARY ,2024
CASE NO. LC/H/1035/23
AND 25 APRIL, 2024
In the matter between: -
BONIFACE MAHWERE
Applicant
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In the matter between: -

**BONIFACE MAHWERE**

**Applicant**

Versus

**GERALD CHIPUMHA N.O**

**1st Respondent**

**AND**

**ZIMBABWE BUILDING CONTRACTORS ASSOCIATION**

**2ND Respondent**

**Before the Honourable L. Hove, Judge:**

**For applicant:** Mr. C. Mucheche

**For 1st and 2nd respondent:** Mr. O. Kadare

This is an application for review.

**Background**

The applicant was employed by the 2nd respondent as a membership secretary from 2004 until 2023. He was suspended with pay on allegations of misconduct.

The allegations he faced were that: -

I. Failed to maintain an up to date membership register for the period of 1st January 2022 to 23rd May 2023

II. A company styled Bonita Faith (Private) Ltd in which you confirmed to be a director appears in the Zimbabwe Building Contractors Association database with membership status category A. There is no record of the company having applied and approved for membership. This is a conflict of interest and create perceived intentions of fraud.

III. Around 2021/22, you received a membership application from MajorCon Civils. The company paid a US $ 50 registration fee for which you failed and or neglected to issue a receipt. You did not register the company.

IV. You could not explain the status of one member who appeared three (3) times on the membership list.


V. You have withheld information upon being asked and not wanting to work as per your duties insisting that you have issues with the association which you wanted resolved first.

VI. Your personal file is missing and you have refused to provide certain documents in order that the file could be reconstituted. This has stalled investigations of your allegations against the Association.

VII. You are always reporting late for work and more often you refuse to perform your duties alleging that you do not have transport and yet you are allocated a company vehicle which you often leave parked at your home.

VIII. You produced a firearm in the office and indicated that you use it in the neighborhood watch. This has caused trauma and psychological harm to fellow employees. Given the hostile attitude you are currently displaying at work, the management is now not able to confront you about work out of fear.

A disciplinary hearing was held into the above listed allegations and the applicant was found guilty and dismissed. He has approached this Court with an application for review. His grounds for review are five and they are that;

1. The proceedings leading to Applicant’s dismissal is tainted with procedural irregularities in that the disciplinary authority was biased as he constantly reflected that he was acting for the employer.

2. The proceedings were procedurally flawed in that rules of procedures in terms of edducing of evidence were not followed thereby not according the applicant the opportunity to clearly set out his case.

3. The proceedings leading to the applicant’s dismissal were tainted with procedural irregularities in that the suspension letter which carried the charge declared the applicant guilty before the disciplinary hearing has been conducted and this goes to the root of the audi alterum patem rule.

4. The proceedings were procedurally wrong in that the tribunal was not properly constated in terms of SI of 2006.

5. The proceedings were tainted with gross procedural irregularity in that the 1st respondent did not accord the applicant the opportunity to address points in mitigation after the verdict of guilt and thereby allowing the 2nd respondent to impose a radical penalty of dismissal.

Ground for review number 1

The Court will consider the first ground that is, whether or not the proceedings leading to applicant’s dismissal is tainted with procedural irregularities in that the disciplinary authority was biased as he constantly reflected that he was acting for the employer.

The 1st respondent does not strictly dispute that he may have said something suggesting that he was linked to the employer. He says, in his opposing affidavit that this could have been because he is the Junior Vice President of the employer party. If he said anything which suggested that he was linked to the employer, it was involuntary. He states however that he is not employed by the 2nd respondent and has never worked directly with employees of the 2nd respondent.


The applicant avers that the $1^{st}$ respondent was biased. They argued that the $1^{st}$ respondent is alleged to have uttered sentiments such as ‘we the employer…’ on several occasions. The applicant further argued that there was real bias as the $1^{st}$ respondent was leaned towards serving the interests of the employer as opposed to his duty to remain impartial.

The $1^{st}$ respondent denied in his opposing affidavit that he was biased and also refuted the allegation that he had assisted the complainant in building its case.

The test for bias is;

“the test (for bias) appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.”

The test for bias as cited above is however not that there had been actual bias. The person alleging bias only needs to show that in the eyes of a reasonable person, there was a real likelihood of bias. Would a reasonable person believe that the $1^{st}$ respondent would be biased? It is therefore not necessary to show that the $1^{st}$ respondent had actually been biased. In Masedza & ors v Magistrate, Rusape & anor 1998 (1) ZLR 36 the Court quoted the case of Metropolitan Properties v Lannon & ors [1969] 1 KB 577 as follows;

“in considering whether there was a real likelihood of bias, the Court does not look at the mind of the Justice… or whoever it is who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people even if he was unbiased as could be, nevertheless if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.”

The Court stated further that at the heart of this test, lies the principle that justice should not only be done but it must be seen to be done. The first respondent might honestly not have been biased as he states in his opposing affidavit but did he conduct himself in such a manner as to make a right minded person, think that he would be biased, then the test would have been satisfied.

The $1^{st}$ respondent does not deny the allegation that he associated himself with the $2^{nd}$ respondent by referring to himself and the $2^{nd}$ respondent as ‘we the employer’. This association is explained by the $1^{st}$ respondent in his affidavit as something that may have been said as he was the Junior Vice President of the $2^{nd}$ respondent. He said;

“if I mentioned anything to suggest that I am linked to the employer it is because I am also the Junior Vice President of the $2^{nd}$ respondent. This was in any case involuntary”

A right-thinking person who is faced with an adjudicating authority who involuntarily associates himself with one of the sides would most likely believe that the adjudicating authority would be biased.

In the case of City and Suburban Transport (Pvt) Ltd v Local Board Road Transportation Johannesburg 1932 WLD 100 the Court stated that;
 “the test [for bias] appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.”

The $1^{st}$ respondent did associate himself with the $2^{nd}$ respondent in a manner that does suggest that he would most likely be biased.

I am in agreement with the submissions made on behalf of the applicant that the $1^{st}$ respondent associated himself with the employer party, the 2nd respondent. This alone gives the impressions in the mind of a reasonable man that there was a real likelihood of bias.

The applicant had also argued that the proceedings were flawed in that rules of procedure were not followed that there were procedural irregularities, that the tribunal was not properly constituted and that the right to mitigate had not been accorded. The Court deems it unnecessary to decide these other issues in view of its finding that the applicant had managed to prove its first ground for review, that is, bias. This alone has the effect of disposing of the application.

The $1^{st}$ respondent’s decision cannot stand. The $1^{st}$ respondent’s association with the $2^{nd}$ respondent during the hearing created the impression that there was a real likelihood of bias.

Accordingly, the following order is made;

**Order:**

1. The application for review succeeds.
2. The $1^{st}$ respondent’s decision be and is hereby set aside.
3. The matter is hereby remitted to the tribunal a quo to be conducted before a different chairman.
4. Each party bears its own costs.
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