City of Harare v Chipo Rusere and City of Harare v Smart Safuri

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/93/25
HARARE, 26 FEBRUARY, 2024
CASE NO. LC/H/458/23 AND LC/H/104/23
AND 5th MARCH, 2025
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 26 FEBRUARY, 2024

AND 5th MARCH, 2025

JUDGMENT NO. LC/H/93/25

CASE NO. LC/H/458/23 AND LC/H/104/23

In the matter between-

CITY OF HARARE	APPELLANT

And

CHIPO RUSERE	RESPONDENT

AND

In the matter between-

CITY OF HARARE	APPELLANT

And

SMART SAFURI	RESPONDENT

Before Honourable Chivizhe, J:

For Appellant:	Mr A. Moyo (Legal Practioner) For Respondent (Chipo Rusere):	Mr E. Mangezi (Legal Practitioner) For Respondent (Smart Safuri)	Mr E. Mangezi (Legal Practitioner CHIVIZHE, J:

The two appeals were filed separately under different case numbers. On the date of hearing, the Legal Practitioners for the parties requested for the consolidation of the hearing of the matters in view of the facts/issues raised in both appeals being similar. The court having granted the request both matters were then heard at the same time. The two appeals are against the two awards by the Designated Agent Alex, Masiya which awards were handed down on the 25th of April 2018 (in the case of Smart Safuri) and on the 12th of April 2019 ( in the case of Chipo Rusere).

BACKGROUND FACTS

The material background facts for each matter are as follows;

In the case of Chipo Rusere, she was employed as a Patrolwoman (Grade 11) by the Appellant in its Public Safety Department. She was charged with contravening clause 10.5 (v)- willful disobedience to a lawful order; it means a deliberate refusal to obey an instruction or an intentional defiance of an order given by the employer. On the 15th of December 2016 at 10:30 hours, she was summoned to the Investigations section of the Harare Metropolitan Police for an investigative interview. She was alleged to have deliberately refused to give a statement. She was arraigned for a disciplinary hearing, found guilty and subsequently dismissed on the 22nd of September, 2017. She appealed the decision to the Harare Municipal Undertaking for conciliation. At conciliation the parties failed to reach a settlement and a Certificate of No Settlement was issued. The matter was thereafter referred to the Designated Agent for determination. The Designated Agent’s finding was that she was unfairly dismissed. He directed her to be reinstated to her original position without loss of salary and benefits from 22nd September, 2017 the effective date of dismissal. The Designated Agent went further to determine the quantum of sums to be paid out to her in damages. The Appellant was directed to pay the total amount to arrear salary, bonus and leave pay of $6092.21. In the event that reinstatement was no longer tenable, the Appellant was also to pay the Respondent damages in lieu of reinstatement amounting to $15805.05. The Appellant was thus directed to pay Chipo Rusere a grand total of $21897.26 to cover arrear salary, bonus, leave pay, backpay and damages. The Appellant was disgruntled with the decision of the Designated Agent and filed the present appeal against the Designated Agent’s ruling.

In the case of, Smart Safuri, he was also employed as a Patrolman (Grade 11), responsible for enforcing council by-laws and guarding council property. He was summoned to the Harare Metropolitan Police Headquarters to make a statement in an investigative interview following allegations of misconduct levelled against him. He recorded a statement and then allegedly refused to sign. A disciplinary hearing was convened on 9 August, 2017. He was consequently dismissed from employment. He then requested to be allowed to seek legal representation which request was granted. His legal practitioner then wrote a letter advising that the procedure taken by the Appellant was unlawful. A charge was then levelled based on his failure to comply within Appellant order to come back and sign the matter was initially referred for conciliation and thereafter to the Designated Agent. The issue for determination was whether or not he had been unfairly dismissed and the remedy thereof. The Designated Agent came to the conclusion that the Appellant had failed to provide sufficient evidence on a

balance of probabilities to prove that the claimant had disobeyed a lawful order, hence the Respondent Smart Safuri had been unfairly dismissed. The Designated Agent directed Appellant to reinstate him to his position without loss of salary and benefits from 6 October, 2017 the effective date of dismissal or in the alternative pay him damages in lieu of reinstatement. The Appellant was also disgruntled with the Designated agent determination in this case. It filed an appeal on the basis of the following grounds.

GROUNDS OF APPEAL

The grounds of appeal in respect of both matters are the same and they are as follows;

The Designated Agent erred in law and grossly in fact in finding that on a balance of probabilities there was no wilful disobedience by the Respondent to a lawful order, when in actual fact the Respondent refused to submit the statement upon being requested to do so.

The Designated Agent erred in holding that the Appellant breached the 1st and 2nd Respondent’s right to legal representation in circumstances where the Respondent was given time to look for the same.

APPELLANT’S SUBMISSIONS

The Appellant submits that, in the case of Chipo Rusere, her failure to give a statement when she was called upon to do so was indeed deliberate and serious and therefore she cannot hide upon the defence of mistake and inadvertence as her failure to comply with a lawful instruction and order. It is apparent that there was a deliberate and wilful disregard of the employer’s lawful order. Appellant further submits that the whole concept of wilful disobedience was aptly outlined in the case of Matereke v Bowring & Associates (Private) Limited),1 wherein GUBBAY JA (as he then was), dealt with the meaning of the words ‘wilful disobedience to a lawful order’ in terms of s 3 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, SI 371 of 1985. To buttress this argument, Appellant also places reliance on the authority of R v Tosela 1942 EDL 175 at 176, 2 wherein Lansdown JP observed that in general, apart from the particular context, an act is wilful which is deliberate or intentional, and not occasioned by ignorance, inadvertence, accident, physical disability or like causes where not only is knowledge present but volition is brought into activity.

In the case of Smart Safuri, the Appellant submits that the Designated Agent failed to appreciate that there was a lawful order which was very clear. There was an instruction issued to Smart Safuri, for him to come back and sign the statements recorded from him upon him

obtaining legal advice from his counsel as requested. It was an instruction that he was capable of executing. His conduct therefore amounted to a deliberate refusal to follow a lawful instruction. The Appellant further submits that the Designated Agent ought to have realized that Smart Safuri’s action of delaying to sign his statement by requesting multiple extensions of time, coupled with his promise but to come back, and later stating in a letter that he “…shall not sanitize an illegal process”, was a deliberate refusal to obey a lawful instruction. The words “our client shall not sanitize an illegal process” when read by any ordinary and reasonable person show that this was a deliberate refusal.

The Appellant submits that the failure of Smart Safuri to follow the instruction not only amounted to a refusal to follow a lawful instruction but a deliberate refusal because he knew that he had to come back to sign the statement but decided not to. He even communicated such intent in a letter drafted by his legal practitioner. It is Appellant’s further submission that although Opposing Counsel argues that the procedure used was wrong this however his is a separate issue on its own. Smart Safuri could at any time have raised the alleged procedural irregularities. The error is that his legal counsel erroneously acted as a competent court and declared that the procedure adopted was wrong thereby advising his client not to come back and sanitize an illegal process when he was in no position to make a conclusion of that sort. It is Appellant’s further contention that on the other hand, in the unlikely event that the court finds the employer did indeed adopt a wrong procedure, the procedure was not fatal as to vitiate the proceedings. The position of the law is clear that in order for an irregularity to vitiate the proceedings it must be shown that the concerned party was prejudiced was as held in Tichawana Nyahuma v Barclays Bank. Therefore, it is Appellant’s contention that the consequential effect of this is that both Respondents took the advice of their legal practitioner and deliberately refused to submit the statement thus amounting to deliberate refusal by both to sign the statements. The Appellant letters sent to were just excuses not to submit sign. It is submitted that at law, an excuse no matter how qualified, does not make disobedience any less wilful as is the position in Turner v Mason (1845) 14 M & W 112; 153 ER 41.

The Appellant further contends that the tribunal aquo further misdirected itself when it dealt with the aspect of the Respondents' right to representation. This was respectfully a misdirection as the Appellant never denied, blocked, or punished the Respondents for seeking legal advice. In fact, the Appellant was more than generous as it gave the Respondent, Smart Safuri, another chance to seek legal assistance right after he had allegedly waived such right. Further, even when his counsel pleaded for an extension of time the Appellant again in good

faith granted the Respondent the extension. Therefore, it cannot be said that the Appellant was ever at any point impeding the Respondent’s right to legal representation.

RESPONDENT’S SUBMISSIONS

Both Respondents submit that it is settled law that an appellate court cannot interfere with the findings of a lower court unless such findings are so outrageous in their defiance of logic that no sensible person applying his mind to the question to be decided would arrive at such a decision. The Respondents have placed reliance on the cases of Hama vs National Railways of Zimbabwe 1996 (1) ZLR 664, 670d and Barros and Anor v Chimpondah 1999

(1) ZLR 58 SC. The Respondents submit that the Designated Agents findings in this matter are therefore beyond reproach as there is no misdirection which warrants interference by this court.

It is both Respondents submission that, the resolution of this matter rests upon a discourse of whether both Respondents deliberately or wilfully disobeyed a lawful order or not. Wilful disobedience being aptly stated in the case of Matereke vs CT Bowring & Associates Private Limited 1987(1) ZLR 206 (SC) as being a deliberate and serious refusal to obey. It is both Respondents submission that the court has to exercise its mind as to whether both Respondents failure to give or sign in the case of Smart Sauri a statement was deliberate and serious. The Respondents both requested and were granted permission to seek legal representation. Counsel for both Respondents then raised a query in relation to how the proceedings were being conducted and no response was given by the Appellant. They thereafter took the advise of the counsel that proceedings were irregular. It is both Respondents’ further submission that this does not amount to a deliberate refusal of a lawful order as they cannot be faulted for seeking and obtaining legal assistance. It is a constitutionally enshrined right under section 69 of the Constitution of Zimbabwe, 2013 for someone to get legal representation. Section 6 of the Labour Act [Cap 28:01] protects the right of an employee to seek legal remedies. Therefore, the failure by the Respondents to make a statement in Chipo Rusero’s case and to sign a statement in Smart Safuri’s case was not deliberate. Both Respondents were simply protecting their legal interests. It is both Respondents contention that having served Appellant with letters seeking clarification on the procedure adopted, the latter should have responded clarifying the issue. This, the Appellant did not do so leading for almost seven months in one of the cases leading to these unfortunate circumstances.

Both Respondents submit that the situation would have been different had the Appellant responded insisting that it was acting within the parameters of the code of conduct. The Respondents also cited the case of Chirinda vs Swift Transport 1996 (1) ZLR 142 (S) at 146 F; wherein the court held that the omission to comply with a lawful order is not necessarily borne out of a defiance of authority unless the proved facts lead irresistibly to an intention to hold authority in defiance. It is therefore a serious misdirection to hold that both Respondents omission to comply with the employer’s order was wilful. The Respondents further submitted that in Harabon vs British Overseas Airways Corporation [1952] 2 ALL ER 1016 at 1022, E Barry remarked, that for one to be guilty of misconduct the person must have been able to appreciate that he is acting wrongfully, or is wrongfully omitting to act and yet persist in so acting or omitting to act, with reckless indifference as to what the results may be. It is both Respondents final submission that from the foregoing there was no wilful or deliberate disobedience to a lawful order by the Appellant. The failure to provide a statement was not borne out of the Respondents defiance. It was not intentional and had the Appellant clarified its position in respect of both Respondents queries, the current situation would have been prevented. Both Respondent contend that the appeal ought therefore to be dismissed with costs.

EVALUATION

The court is faced with the question of whether or not an act of willful disobedience to a lawful order was committed by both Respondents. The locus classicus on the charge of willful disobedience to a lawful order is MATEKERE v CT BOWING & ASSOCIATES (PVT) ITD 1987 (1) ZLR 206 (SC). In that case it was held that;

“wilful disobedience or wilful misconduct, the words in my view connotes a deliberate and serious refusal to obey. Knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence. It must be disobedience in a serious degree and not trivial - not simply an unconsidered reaction in a moment of excitement. It must be such disobedience as to be likely to undermine the relationship between the employer and the employee, going to the very root of the contract of employment. The second requirement is that the disobedience be directed at ‘a lawful order,’ means simply that the employee is not bound to obey an order to do something not properly appertaining to the character or capacity of his contract of employment.”

In PTC v CHIHORO 1997 (1) ZLR 148 SC the Supreme Court also held that;

“What is a reasonable order must necessarily rest on the circumstances of each case. There is no requirement that a lawful order must in addition be reasonable. If an order be so unreasonable as to defy common sense then it cannot be a lawful order. It is not an offense to refuse to obey an unreasonable order for such an order is not a lawful order. An order so unreasonable so as to oppose the principle or spirit of the law cannot be lawful”

On the 1st ground of appeal as to whether the Designated Agent erred in law and grossly in fact in finding that on a balance of probabilities there was no wilful disobedience by both Respondents to a lawful order, it is this court’s finding that the Designated Agent correctly found that there was no wilful disobedience by both Smart Safuri and Chipo Rusero, the Respondents, to a wilful order. In his ruling in Smart Safuri matter the Designated Agent stated as follows.

“Clearly the record on file shows that there was no deliberate, no intention and no serious refusal to obey. The claimant asked for permission to seek legal advice which was granted. He sought legal advice and was given a letter which queried the procedure taken by the Respondent in soliciting for information from him. the letter which the claimant brought from his legal representatives referred the Respondent to the code of conduct but was not respondent to. It boggles the mind why the letter was not responded to notwithstanding that it raised genuine legal issues.”

The court is also of the view that the explanation as tendered by the Designated Agent as to the interpretation of clauses 11.2 (a) and (b) in the code of conduct is correct. The clauses are not to be interpreted independently of one another. Clause 11.2 (b) merely gave the Head of Department the discretion as to enlist the services of other investigative personnel, whereas clause 11.2 (a) in clear and peremptory terms, directed the correct and lawful procedure which the investigators were to use in carrying out their investigations. In seeking redress to this discrepancy, both Respondents were correct in their enquiry and therefore could not be considered to have committed an act of wilful disobedience to an order that was made clearly ultra vires the Collective Bargaining Agreement Harare Municipal Undertaking (Employment Code of Conduct) SI 13/15.

On the 2nd ground of appeal as to whether the Designated Agent erred in holding that the Appellant breached the 1st and 2nd Respondent’s right to legal representation in circumstances where both Respondents were given time to look for the same. A reading of the

ruling by the Designated Agent clearly show that at no time did the Designated Agent ever state that the Appellant breached the Respondents right to legal representation. The Designated Agent clearly stated that the investigating officer granted the permission to Respondents to seek legal advice. This a fact that was never in dispute and ought therefore to be dismissed

QUANTIFIED AWARD

The Court upon reaching a decision of the merits recalled the parties in order for them to clarify as to what ought to happen to the damages awarded by the Designated Agent pursuant to his finding of an unlawful termination. In the Chipo Rusere case the Designated Agent on the 12th of April, 2019 had awarded her ZWL $21, 897.26 in damages in lieu of reinstatement. The parties having filed supplementary heads on the issue the following constitutes the court’s finding on the issue.

The Appellant’s submission is that the damages ought not to be recalculated. The Appellant has based his submission on settled legal principles and relevant statutory provisions. The Appellant has placed reliance on the basic legal principle that damages are calculated from the date on which they arise. Appellant has referred to Redstar Wholesellers vs E Mabika SC 52-05 and First Mutual Life Limited vs Jackson Mazivi 2000 (1) 325 (S). The Appellant contends that the Designated Agent therefore correctly quantified the damages as ZWL $21 897,26 thereby creating a liability arising on April 12, 2019.

The Appellant has also relied on the principle of currency nominalism which dictates that money debts are not adjusted for fluctuations in currency value. The Appellant referred to Falcon Gold Zimbabwe limited 3 vs (1) Taxing Officer N.O (2) Rio Gold (Pvt) Ltd SC25/24 and Shava vs Bergus Investments (Pvt) Ltd where the court held that re-evaluation of a judgment debt is not only legally incompetent but also undermines the fundamental tenets of currency nominalism.The Court in Mukorera vs Ocean Breeze Engine and Cooling System had also stated as follows:

“That principle holds that a debt sounding in money has to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of the currency.”

The Appellant contends that the principle also extends to labour matters. In Olivine Industries vs Caution Nherera 2006 (1) ZLR 203 206 BC the court held that:

“The Respondent can only be compensated by an amount that should be calculated at the rates applicable at the time and not at today’s rates or some future unknown rates.”

The Appellant argues that these time-honored principles referred to above ensure certainty and fairness in the resolution of monetary disputes. To allow recalculation in this case based on some futuristic dates would result in arbitrary outcomes undermining the predictability of the law and the parties legitimate expectations.

To the Respondents’ argument that the currency is moribund and that recalculation is therefore necessary, the Appellant contends that the submission is misplaced. Section 7 of the Statutory Instrument 60 of 2024 provides a clear mechanism for addressing such concerns. This position is said to align with the principles of justice and fairness as also articulated in Robson Makoni vs The Gold Chain Private Limited t/a seen Harare HH-197-15.

The Appellant further contends that the Labour Court in any event is a creature of statute it only has powers as ascribed to by the Labour Act [Chapter 28:01]. Section 2A which Respondent has sought to rely upon does not grant this court the power to recalculate an award. The Appellant further contends that the Respondent has misapplied the cases referred to which were ostensibly in support of recalculating damages. There were distinct cases from the present case in that in those cases and the courts maintained the original date of when the damages arose and rates applicable. The courts were converting the amounts awarded to a stable currency without altering the basis of quantification. The Appellant prayer was for the court to apply the rate as prescribed under Statutory Instrument 60 of 2024. The court was discouraged from and not attempt to indulge in any recalculation of damages as that would create a precedent of arbitrary re-assessments, in the process eroding the consistency and predictability of judicial decisions.

The Respondent counter submission is that the award ought to be recalculated by the court in view of the fact that the award was granted in 2019. The operational currency at the time is no longer in use, 5 years have since gone past and the quantification award has been overtaken by events. The Respondent however must get real compensation for her unlawful termination. To leave the award as it is would be to allow the Appellant to be unjustly enriched as the ZWL award is now valueless. The award which is clearly expressed in monbund currency is incapable of enforcement, it is also unjust and contrary to public policy. The Respondent also contends for the court to allow the quantified award to stand as it is would

clearly go against the core tenets of the Labour Act [Chapter 28: 01] which are encapsulated in Section 2A which provides as follows:

“2A Purpose of Act

The purpose of the Act is to advance social justice and democracy in the work place

(a)

(b)

(c)

(d)

(e)

(f)  Securing the just effective and expecting resolution of disputes and unfair labor practices

The Respondent contends that this court role is to ensure damages in lieu of reinstatement are paid in an effective manner i.e in an amount/ currency and quantity that achievers fairness as required by the Labour Act [Chapter 28:01]. Reference has been made to Madhatter |Mining Company vs Tapfuma SC 51/2014 where the Supreme Court in remitting a matter to Labour Court emphasized the role of the Labour Court as being to secure just and effective resolution of labour disputes. In that case the court directed a remittal as the damages awarded to the employee could no longer be paid in Zimbabwe currency realistically or in a way that gave due value to the employee. The court emphasized therein that a debt is not wiped out simply because there have been changes to a realizable currency in which it is expressed equity would demand that a formula be found to give effect

The Respondent also referred to Fleximail (Pvt) Ltd vs Samanyanga Nzuma vs Hunyani Paper and Packaging SC 137/11 amongst several authorities where the Supreme Court had directed remittals in similar circumstances to the Labour Court for the court by reason of the provision in Section 2A (1) of the Labour Act to, in the exercise of its equitable jurisdiction, order payment of damages in operational and realisable currency. On the basis of authorities as well as statutory provisions referred to the Respondent prayer is for the court to dismiss the appeal. The court may then proceed to adopt any of the two options .Firstly, the court may order reinstatement of Respondent to her original position without loss of salary and benefits position or in the alternative if reinstatement is no longer tenable, the Appellant be

ordered to pay her damages in lieu of reinstatement. The Respondent submits this option allows the parties to negotiate damages in lieu of reinstatement and where they do not agree they may approach the court for quantification. Secondly, the Respondent proposes that the matter may be remitted back to the Designated Agent for him to quantify the damages afresh.

EVALUATION

The issue relating to the fate of the quantified award by the Designated Agent in Chipo Rusere case was not raised in the appeal before this court. It was not addressed by the parties in heads of arguments or in oral submissions before the court. The issue however is a pertinent issue that the court could not afford to overlook in its resolution of the dispute between the parties. It is common cause the appeal placed before the court was based on whether or not Designated Agent was correct in his finding that the two Respondents in both appeals were lawfully terminated. Upon the court reaching a conclusion that indeed the two Respondents were unlawfully terminated it became necessary for the court to address the relief as sought by the Respondents. In the case of Chipo Rusere it became apparent that the Designated Agent had gone further and quantified his award upon a directive of this court. This necessitated the recall of the parties in order to address the question as what had to happen to the quantified award. This request was made in the spirit of ensuring finality to litigation. When it became apparent however the parties had divergent views on the point they were requested to file written submission. Having perused those submissions and the authorities referred to by them the following is my finding.

It is important to restate from the outset the powers of the Labour court. As a creature of stature the Labour court only has the power to determine applications/appeals as provided for in the Labour Act/ Regulations and other related statutes.

The request placed before the court by the Respondent is for this court, once the appeal is dismissed to proceed to recalculate the quantified award. No provision however has been referred to by the Respondent where the court is granted such power. Section 2A of the Labour Act referred to does not grant this court the power to substitute the award by the Designated Agent with a recalculated award. This would only have been possible if the issue of the recalculation of the award had been raised as an issue in the appeal.

This is on the basis of Section 89 (1) which gives the power to the court to set aside and substitute any award. The issue of recalculation of the award was not raised in the appeal

so the award cannot be recalculated and substituted as prayed. Equally the alternative request by the Respondent to have the matter remitted to the Designated Agent for him to recalculate the award is not a viable option. On the basis of the Eastern Highlands vs Mapeto (citation) the Labour court has no power, in the course of hearing / determining appeal proceedings under S89 (1), to direct a remittal of a matter to a Designated Agent. It is not competent therefore for the court to remit the matter as suggested.

The court having arrived at the conclusion that it is not competent to reevaluate the quantified award or to direct a remittal of the Chipo Rusere case, to the Designated Agent, it must follow that the court having found that the Designated Agent was correct in his conclusion of unlawful termination in both matters, the appeals in both cases must be dismissed. In the case of Chipo Rusere the main and the quantified award shall both be upheld. This is in view of the position of the law that the quantified awards forms part of the main award See Richard Matthews vs Caster International (Pvt) Ltd HH-497- 17. It ought to be also noted that in arriving at this conclusion the court has refrained from addressing the propriety of this court engaging in a revaluation/recalculation or conversion of the award granted. It remains open to the parties to follow any lawful channels obtaining to address that issue.

Consequently it is ordered as follows:

The appeals in LC/H/458/23 and LC/H/104/23 be and are hereby dismissed with costs.

The main and quantified award rendered by the Designated Agent under reference LC/H/458/23 be and are hereby upheld.

In respect to the matter under LC/H/104/23 the Appellant be and is hereby directed to reinstate Respondent to his original position without loss of salary and benefits. In the event that reinstatement is no longer tenable the parties shall negotiate and agree on damages in lieu of reinstatement failing which either party can approach the Labour Court for quantification of such damages.