Cloddie Shumba v Central Intelligence Organization

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/205/24
HARARE 19 MARCH, 2024 AND 6 th TH MAY,2024
CASE NO LC/H/55/24
CLODDIE SHUMBA
APPELLANT
CENTRAL INTELIGENCE ORGANIZATION
RESPONDENT
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CLODDIE SHUMBA

APPELLANT

CENTRAL INTELIGENCE ORGANIZATION

RESPONDENT

Before the Honourable Chivizhe, Judge:

For the Applicant- Mr. J. Mapuranga (Legal Practitioner)

For the Respondent- Ms T. Tembo (Civil Division of the Attorney General’s Office)

RULING

CHIVIZHE J:

This is a ruling on a jurisdictional point taken in limine by the Respondent. The matter had been placed before me as an appeal against the determination of the Disciplinary Committee dated 29th of December 2023. It is necessary however to set out the material background facts.

BACKGROUND

The Appellant is employed as a Divisional Intelligence Officer by the Respondent. Proceedings of the Disciplinary hearing were conducted to inquire into and report on allegations that the Appellant had signed two contracts on behalf of the Central Intelligence Organisation with Leggim Enterprises worth forty eight thousand, nine hundred and seventy eight United States Dollars and seventy six cents ($48 978.76) and twenty eight thousand one hundred and twenty four United States Dollars and twenty cents (US $28 124.20) for the construction of a store room and water and oil separator without authority from the Chief Procurement Officer (CPO) PIO Nicholas Rgwambiwa. The Appellant was also alleged to have awarded a fix and supply contract of the aforementioned company in contradiction to an explicit instruction by the CPO to only purchase construction material and have the renovations undertaken by the Central Intelligence Organisation’s Material Resources Management (MRM) Artisinal Section. This was said to be in violation of **paragraphs 3,4,13 and 18 of the First Schedule of the Code of Conduct for the Department of State for National Security**, which states; **(3) Failure to perform any duties related to one’s work or improper negligent performance of duty; (4) Failure to obey lawful instructions, including circulars, instructions or standing orders issued by the Directorate; (13) Any Act involving corruption or dishonesty….; (18) Any act which is inconsistent with duties, including the abuse of authority.** The Appellant denied having failed to apprise PIO Rgwambiwa of the projects progress and highlighted that he periodically furnished his superior with all the work updates for quality control. By so doing, the Appellant pointed out that he expected that the CPO would instigate the necessary checks and balances on his submissions, considering he was still on probation. The Disciplinary Committee having perused the documents availed to them found the Appellant guilty of the charges levelled against him.

**GROUNDS OF APPEAL**

1. The Respondent grossly erred on the facts by finding that the Appellant actioned the construction of a new store room and oil and water separator without Approval when in actual fact the project was approved by Appellant’s superiors.
2. The Respondent grossly erred at law by finding the Appellant guilty of negligence.
3. The Respondent grossly erred on the facts by finding that Appellant failed to regularly update his superior when that finding is contrary to the evidence led.
4. The Respondent erred at law by failing to apply the principle of parity in punishing Appellant by way of a demotion when it meted a warning to other employees charged under the same set of facts which warning would have sufficed.

**IN LIMINE**

It is submitted by the Respondent that this application is improperly before this Honourable Court in that, this honourable court has no jurisdiction to hear this matter. Reference has been made to **Section 3 (3)** of the **Labour Act [Chapter 28;01]** which states that;

“(3) This Act shall not apply to or in respect of

(a) Members of a disciplined force of the State;”


The same Act under section 2 defines the term disciplined forces as follows;

“‘disciplined force’ means

(a) A military, air or naval force

(b) A police force

(c) A prison force

(d) Persons employed in the President’s office on security duties;”

It is further submitted that the Central Intelligence Organization under which the Appellant is employed, falls under the definition of disciplined forces as defined in section 2 of the Labour Act [Chapter 28:01]. The above-mentioned expressly oust this court’s jurisdiction in this matter. A court cannot invoke its powers to take away powers which have been given to another Court or person in an Act of Parliament. The Respondent also further contends that subsection 3(c) further states that,

“This Act shall not apply to or in respect of such other employees of the state as the President may designate by statutory instrument”

The Respondent also submits that in terms of section 224 of the Constitution of Zimbabwe Amendment Act No. 13, the Intelligence Services of the State must be established in terms of the law, or a Presidential or Cabinet Directive, or order. Currently this Organization exists in terms of a Presidential Directive, thus it cannot be subjected to any of the provisions of the Labour Act [Chapter 28:01]. The Labour Court is a creature of statute. It derives its authority and is guided by the Labour Act [Chapter 28:01]. and any regulations made thereafter. Its jurisdiction is thus confined to the four corners of the statute. It is therefore the Respondent’s submission that as much as the Labour Court has the general jurisdiction to deal with all labour matters, the Act of Parliament from which it derives its powers, expressly, clearly and unambiguously provides exceptions where the Labour Court has no jurisdiction. One of these exceptions is Disciplined Forces category under which the Respondent falls. The Labour Court thus has no jurisdiction to entertain matters involving Employees under this category.

In response the Appellant has submitted that the point in limine that this Court has no jurisdiction is ill conceived and devoid of merit and it is premised on a misunderstanding of the applicability of section 3 of the Labour Act [Chapter 28:01]. Appellant further submits that Section 3 does not oust the jurisdiction of this Court as the Respondent would have the Court believe, per contra, the provision simply means that the substantive rights which are conferred to employees by the Act do not extend to members of a disciplined force. The Appellant further contends that this appeal is not grounded on the Labour Act but rather on its own code of conduct and can be disposed of without much ado by section 46 of the Code of Conduct for the Department of State for National Security which provides for an appeal to this Court. The Appellant also contends that the Respondent cannot persist with the argument that this Court has no jurisdiction when its own code of conduct confers the Appellant with the right to appeal to this point. The Appellant also submits that it is, in any event, a settled rule in this jurisdiction that labour matters ought to be decided on merits rather than on technical points taken. The Appellant places reliance for this position on the celebrated decision in Dalny Mine v Banda 1999 (1) ZLR 220 (S). The Appellant’s prayer is for the court to dismiss the preliminary point as it clearly lacks merit.

PARTIES SUBMISSIONS

On the date of hearing, Ms Tembo, for the Respondent, initially applied for the court to uplift the bar operating at the time against the Respondent, by reason of the failure to timeously file heads of argument in terms of the court rules. The application, not being opposed by the Appellant, the court duly granted an order uplifting the bar and extending condonation to the respondent for the late filing of the Heads of Argument. The Heads of Argument that had since been filed by the Respondent, albeit outside the time limit, were deemed properly filed before the court.

Ms Tembo proceeded to address the court on the merits of the point in limine as taken by the Respondent. She indicated that she was abiding with the Respondents submissions already made in Heads of Argument. She however emphasised that, on the basis of provisions in sections 2 and 3(3) of the Labour Act [Chapter 28:01] the Labour act does not apply to employees in the Disciplined Forces. She urged the court to disregard the submission by the Appellant that the court’s jurisdiction in this case, is derived from the Respondent’s Code of Conduct, which in section 46 provides for a right of appeal to this court. She submitted that the Labour Court is a creature of statute, its jurisdiction is clearly outlined in the Labour Act [Chapter 28:01]. It is also the Labour act that has specifically excluded Disciplined Forces from its application through section 3(3) referred to above. She submitted that the court’s hands were clearly tied in this case.

Mr Mapuranga, for the Appellant, submitted that the point in limine was clearly ill conceived. Section 3(3) does not oust this court’s jurisdiction in this case. It was his further submission that the point raised by the Respondent would have merit if the appeal before the court was in terms of the Labour Act. The appeal was however filed in terms of the provisions of Respondent’s own Code of Conduct. The court therefore ought to find that the appeal is properly before it.

Mr Mapuranga further submitted that it is generally accepted that where a Code of Conduct does not provide for an appeal forum in the workplace then one can always approach the Labour court on the basis of provisions under section 92D of the Labour Act [Chapter 28:01]. He referred to the decision in Sakarombe and Another vs Montana Meats SC 44/2020. Lastly Mr Mapuranga urged the court to uphold the principle established in this jurisdiction that labour matters should generally be determined on the merits rather than on technicalities. On this basis his prayer was for the point in limine to be dismissed as it clearly lacked merit.

**ANALYSIS**

After considering the parties submissions and the authorities as referred to by them it is the court’s finding the point in limine is clearly merited. It is generally accepted that the Labour Act applies to all employees except those expressly excluded by the Act. This is apparent from a reading of section 3(3) of the Act which is referred to supra. Section 3(3) clearly excludes the application of the Labour Act on members of a Disciplined Force of the State. It has also not been contested by the appellant that the Respondent falls in the category of a Disciplined Force.

The arguments as presented by the Appellant are not persuasive at all. The argument that the interpretation of section 3(3) can be anything other than the one ascribed to above is a flimsy argument. It also clearly flies in the face of precedent which binds this court. In this respect I refer to City of Gweru vs Richard Masinire SC 56-18, where Honourable Bhunu J stated words to the following effect:

“Upon a proper reading of the above section, it is self-evident that the Labour Act applies to all employees except those in categories that are expressly excluded therein. These are:

1. Those whose conditions of employment are otherwise provided for in the Constitution.


2. Members of the Public Service as read with section 26.

3. Members of a Disciplined Force of the State.

4. Any other employee designated by the President in a Statutory Instrument.”

The second argument that as the relevant Code of Conduct provides for a right of appeal to this court then the matter is properly before this court is equally meritless. It is a given that the Labour Court is a creature of Statute, its jurisdiction is therefore derived from the enabling act that is the **Labour Act [Chapter 28:01]**. There is also no doubt that the relevant Code of Conduct has erroneously conferred jurisdiction to the Labour Court in clear conflict with **section 3(3)** referred to supra. **Section 2A** of the **Labour Act [Chapter 28:01]** to which the court was referred by the Respondent clearly addresses the apparent conflict. It provides as follows:

“2A Purpose of the Act

(3) This Act shall prevail over any other enactment inconsistent with it.”

The third argument that this court should disregard the point in **limine** as it is a technical point is also without merit. Jurisdiction is an issue of law rather than a technical point. See for instance Chinhoyi Municipality versus **Mangwana and Partners Legal Practitioners and Honourable Retired Justice M. Chinhengo HH403/16** where the High court per Chitapi J stated as follows:

“The preliminary point raised by the applicant on jurisdiction was not just a technical issue. It was a plea whose determination would decide whether the proceedings should continue or be terminated or aborted for want of jurisdiction on the part of second respondent.…”

The fourth argument that the Appellant has a right to appeal before this court by virtue of **section 92D** of the **Labour Act [Chapter 28:01]** must also clearly fail. **Section 92D** provides as follows;

“92D Appeals to the Labour Court not provided for elsewhere in this Act.

A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court”
 It is clear that upon a consideration of this provision as juxtaposed against **sections 2 and 3(3)** of the Act the provision accords the right to appeal generally. The right to appeal however in the court’s considered view is available to employees that are not expressly excluded by **section 3(3)** as discussed above. The Appellant as a member of a disciplined force is clearly expressly excluded from access to the Labour court. It also appears to the court, assuming the court is wrong in arriving at this point, the Appellant will in any event, face another hurdle, in this court. **Section 92D** only applies to appeals against a determination made under an “employment code”. The determination Appellant seeks to impugn has been made under a “Code of Conduct” that both parties agreed in the hearing has not been registered in terms of the **Labour Act [Chapter 28:01]**. Respondent contention is it actually falls in the class of an Administrative Policy rather than a Code of Conduct. The issue is however raised as an aside.

In conclusion it is clear that, in the circumstances of this case, the court’s jurisdiction having been clearly ousted through **section 3(3)**, the court cannot purport to clothe itself with jurisdiction as this has fatal consequences to the proceedings. This position was established in the case of **Munyaka v Mutswiri & Anor HH 420/23** where the court held that,

> “It is a fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no force or effect and the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings”

In the result it is hereby ordered as follows:

1. The point in **limine** succeeds.
2. The present appeal, not being properly placed before the court, it be and is hereby struck off the roll with costs.
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