Delta Beverages (Private) Limited v Peggy Kuneka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H//322/24
HELD AT HARARE 5 JUNE 2024
CASE NO. LC/H/188/24
AND 5 AUGUST 2024
IN THE MATTER BETWEEN :-
DELTA BEVERAGES (PRIVATE) LIMITED
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 5 JUNE 2024
AND 5 AUGUST 2024

IN THE MATTER BETWEEN :

DELTA BEVERAGES (PRIVATE) LIMITED
AND
PEGGY KUNEKA

APPLICANT
RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant
For Respondent

Advocate M. Tshuma
Professor L. Madhuku

MURASI J.,

This is an application for leave to appeal to the Supreme Court in terms of section 92 F (2) of the Labour Act, (Chapter 28:01).

BACKGROUND

Respondent was in the employ of the Applicant. Allegations of misconduct were levelled against her, and she was brought before a Disciplinary Committee in terms of the Applicant’s Code of Conduct. She was found guilty. The Immediate Superior, as mandated by the Code of Conduct, imposed a penalty on her. The penalty was one of a Final Written Warning. The Respondent thereafter continued coming to work. A few weeks down the line, another penalty of dismissal from employment was issued to her. She initially appealed against the dismissal penalty at the workplace as provided in the Code of Conduct. This did not produce the desired result. She was aggrieved by this turn of events and approached this Court for relief. The matter was set down for hearing at Mutare. The applicant’s legal practitioner did not attend. A default judgment was issued. Applicant proceeded to apply for rescission of that default judgment. In its judgment, this Court determined that whilst the reasons for non-attendance were reasonable and acceptable, there were no prospects of success. Applicant intends to approach the Supreme Court on appeal. Hence the present application.


At the commencement of the proceedings, Advocate Tshuma advised that he had an application to make. He stated that his client was of the view that the Court had already given its position on the matter in a recent judgment and would not give an impartial determination in the matter. He was therefore intent on applying for the recusal of the Judge. At the conclusion of the application, the Court dismissed the application for recusal and stated that the reasons would form part of the main decision on the matter. The following are the reasons.

APPLICATION FOR RECUSAL

In the application for recusal, the main thrust by Advocate Tshuma was on the fact that the Court had previously stated and ruled on the merits of the matter and thus it was Applicant’s position that the Court could not continue to preside over the matter. He further averred that the Court, having formulated its views on the matter, it would be inappropriate to deal with the present application and thus the application for leave to appeal to the Supreme Court should be handled by a different Judge. He did not proffer any other reason for the stated position.

In response, Professor Madhuku stated that the averments made on behalf of the Applicant were contrary to the provisions of the Labour Act. He added that the provisions were specific in that leave to appeal had to be obtained from the Judge or Court that made the decision. He further submitted that the Court had made its pronouncements on the application for rescission of judgment and that the present application was for leave to appeal to the Supreme Court. He further stated that the two applications were different as the Court, in the present application, was enjoined to consider the prospective grounds of appeal and determine whether they raised points of law and whether there were prospects of success on appeal. Professor Madhuku further submitted that the direction sought to be taken by the Applicant’s legal representative would cripple the operations of the Labour Court and this could only be permitted with the appropriate amendment to the Act.

Section 92 F (2) of the Labour Act, (Chapter 28:01) provides:

“Any party wishing to appeal from any decision of the Labour Court on a question of law in terms of subsection (1) shall seek from the President (Judge) who made the decision or, in his or her absence, from any other President (Judge) leave to appeal that decision.”

The instruction in the provision is worded in peremptory terms and is, in my view, unambiguous. The submission by Advocate Tshuma is that the Court has already decided on the matter and is likely to be biased in the circumstances. When one has regard to the provision of the statute, one notices the clear intention of the Legislature in having the Court/Judge who determined the matter to deal with the issue of leave to appeal. I formulate this view because a judgment is composed of findings of fact, statement of the law and the ultimate decision is based on the effects of the combination of such findings of fact and the law. A different Court/Judge would be placed in the uncomfortable position of dissecting the judgment to find fault. However, the problem may not arise where the Court/Judge formulates the view that there are no prospects of success, but such a problem arises where it is not readily evident whether there are any prospects of success on appeal. In such a situation, the Court/Judge would be tasked with making a ‘value judgment’ (review?) of another Court/Judge’s decision which is impermissible in terms of the provisions of the law. Some uncharitable quarters have described the practice of seeking fresh triers of fact as ‘judicial tourism’.


Applicant’s legal practitioner formulated the view that the Court will not be in a position to deliver an impartial decision having already delivered its decision on the matter. In **President of the Republic of South Africa and Ors v South African Rugby Football Union and Ors** 1999 (4) SA 147 (CC) at 177 D-E, it was held as follows:

“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or would not bring an impartial mind to bear upon the adjudication of the case, that is, a mind open to persuasion by the evidence and submissions of counsel.”

In **Tendai Bonde v National Foods Limited and Another** SC 159/20, MATHONSI JA had this to say:

“In order to succeed in seeking the recusal of a judicial officer, a party seeking recusal on the ground of an apprehension of bias or partiality must satisfy an objective test. The question which arises is whether there exists grounds from which a reasonable person would think that there is a real likelihood the judicial officer would not fairly determine the issue on the basis of the evidence and arguments to be placed before him or her.

The position was eminently expressed by this Court in **Leopard Rock Hotel (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd** 1994 (1) ZLR 255 (S) at 275 A-B thus:

‘A common theme which runs through the authorities is, therefore, that the test to be applied is an objective one. One does not enquire into the mind of the person challenged to determine whether he was or would be biased. Thus, the character, professionalism, experience or ability as to make it unlikely, despite the existence of circumstances suggesting the possibility of bias arising out of some conflict of interest, that he would yield to infamy, do not fall for consideration.’

In my view a reasonable or right-thinking person would not believe that there exists a likelihood of bias merely because a litigant believes, without even attempting to justify such a belief, that every judge that has dealt with matters involving his former employment is biased against him. By virtue of training, experience and conscience, judges are able to administer justice without fear or favour. Perhaps it is time to that the applicant accorded the judges of this Court some respect and focus on presenting his case instead of spending time forum-shopping.”

The Court has a duty to hear matters impartially, without fear, favour or prejudice. Impartiality is stated to be a state of mind in which the Judge should be disinterested in the result and should be open to the persuasions presented in evidence and submissions by the parties.

In *casu*, the only reason advanced is that the Court has previously issued judgment on the matter, and it was unlikely that the Court would ‘shift’ from its position. *Professor Madhuku* argued that the application must be placed before the Judge who made the decision in terms of the provisions of the law and that the law was very clear. He also submitted that the issue to be determined by the Court in the present application was whether the prospective grounds of appeal raised points of law and whether there were prospects of success on appeal.


I have seen that Applicant’s Counsel does not allude to the issues on which bias is grounded. A single issue has been raised that the Court, having made a previous decision, was unlikely to give a different decision. The present application is clearly a different application encompassing different consideration. No factual evidence was presented by the Applicant to at least show that there was a reasonable apprehension that the Court would not do justice in the circumstances. A judge, having taken the judicial oath is enjoined to treat each matter placed before him/her judiciously. A reference was made to the issues of training, experience and conscience in **Tendai Bonde decision** which militate against making a finding that there would not be a fair determination. It is thus my considered view that the Applicant has not made out a case for the recusal of this Court and the application for recusal is accordingly dismissed.

**APPLICATION FOR LEAVE TO APPEAL**

In submissions on the merits of the application for leaver to appeal, **Advocate Tshuma** stated that in such applications, the case must be arguable and the prospects of success not remote. He further stated that a different Court may arrive at a different conclusion. In this regard, he stated that he would rely on what was submitted in both the Founding Affidavit and the heads of argument. He submitted that the Immediate Superior had communicated a decision which was not that of the Disciplinary Committee. He argued that in doing so, the Immediate Superior’s decision was thus invalid.

**Advocate Tshuma** further stated that Applicant had raised several issues in the review application in that the review application had been filed some 44 days out of time. He argued that the issue therefore was whether the review application was properly before the Court as no condonation was sought by the Respondent. To this end, **Advocate Tshuma** further argued that the Court had stated that these were ‘technical issues’ and the determination did not provide reasons therefor.

The Founding Affidavit had the following averments:

“Accordingly, the Applicant submits that the Supreme Court may hold that:

7.1 There is no legal requirement for the decision to dismiss an employee to be made by that specific employee’s supervisor alone.

7.2 If the employee’s immediate supervisor is disqualified from informing her of the decision of the hearing committee then it is permissible for another person who is not disqualified to inform the employee.

7.3 It is permissible for the hearing committee to announce its correct decision if one of their number announces a decision other than their decision.

7.4. The issue of whether the decision of the committee was valid is one which could properly be made on review and not in the application for rescission of judgment.

7.5 The review was filed out of time.

7.6 The Respondent sought reinstatement without an alternative for damages.


The heads of argument followed the pattern of the Founding Affidavit and referred to precedent in so-doing. The following submissions were made:

“31. The court refused to deal with these points on the basis that they were ‘technical issues which tend to take the Court’s attention away from the crucial issues for determination’.

32. Whilst the court was fully entitled to dismiss the Applicant’s points, it was duty bound to give full reasons as to why the Applicant’s point had no merits. Instead the court simply refused to deal with the issues raised by the Applicant on the basis that they were a distraction.

44. The important point here is that without an anterior application for condonation, which application the court had to consider, and give cogent reasons for its granting, the Court could not grant the main relief sought by the Respondent as its matter was not properly before the Court.

45. The failure to grant condonation and give reasons for its granting rendered the application before the Court a nullity, with the effect that the Court could not hear the matter, nor grant relief sought by the Respondent.”

In response, Professor Madhuku stated that he would abide by the documents filed of record. He further stated that Applicant had not addressed whether the application was based on questions of law which was a requirement in terms of the provisions of the statute. He also submitted that Applicant had not stated what the prospects of success were in the circumstances. He argued that these issues were totally absent in Applicant’s Founding Affidavit and heads of argument and that the prospective grounds of appeal did not raise points of law.

Professor Madhuku submitted that Applicant was intending that the Supreme Court deals with questions of fact. The issue that the communication of the penalty was made by the Immediate Superior was a question fact which the Court had considered and pronounced its decision that Applicant could not, in the circumstances, have substituted a different penalty. He added that this was the real issue as the Immediate Superior was authorized in terms of the Code of Conduct to issue the penalty which Applicant has indicated is an ‘incorrect decision’.

Professor Madhuku further submitted that the prospective grounds of appeal were long and winding and that the framing left a lot to be desired. He argued that the Applicant’s basic complaint was that someone communicated a wrong decision, and it wants the Supreme Court to come to its assistance. He added that basically what the Applicant was stating was one ground of appeal with several parts. He argued that Applicant had not referred to any precedent where two penalties had been communicated in respect of one infraction by an employee. Professor Madhuku further argued that the gate-keeping functions of the Court should be resolved in favour of the Respondent. He referred the Court to various cases in support of the averments.

In the Respondent’s heads of argument, it is submitted as follows:


“4. It is not reasonable to expect the Supreme Court to disagree with the position of this court that the applicant, as employer, cannot change its verdict merely by changing its mind long after the conclusion of the disciplinary proceedings.

5. The grounds of appeal miss the *ratio decidendi* of the judgment sought to be appealed against. The crux of the matter is whether or not an employer can subject an employee to two penalties for the same offence in respect of one disciplinary hearing. No ground of appeal deals with the crux of the matter.

6. No clear point of law is articulated by the grounds. The exercise of discretion in refusing rescission is not properly attacked. There is only a tangential attack which cannot be sufficient.

7. More fundamentally, there are no prospects of success. The Code of Conduct did not permit what the applicant seeks to defend. The Immediate Supervisor acted perfectly in terms of the Code of Conduct. The two individuals who purportedly overturned the penalty had no authority whatsoever from the Code of Conduct.

8. The crux of the judgment of this court sought to be appealed against is the following passage:

‘Clearly, Applicant could not proceed to alter a penalty imposed by a duly authorized person and substitute it with a penalty by persons not authorized in terms of the code of conduct,’

9. The law is settled that non-compliance with provisions of the code of conduct is a procedural irregularity which vitiates the proceedings.”

**ANALYSIS**

It is trite that an appeal from this Court to the Supreme Court is supposed to be on points of law as provided in the requisite statute. The issue of what constitutes points of law has been determined by this Court and the Superior Courts in many a precedent. The definition of what a point of law is, has been referred to in many authorities including **Sable Chemical Industries Limited v David Peter Easterbrook SC 18/10**. It is also correct that a misdirection on the facts, if properly pleaded and shown to exist, entitle one to appellate relief. A reading of Applicant’s prospective grounds of appeal show a ‘general disgruntlement’ with the decision of this Court. In **Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC115/20 MAKARAU JA** (as she then was) had this to say:

“It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law has said in other binding cases on the issue to be determined, presumably in matters where the court has discretion, or questions what the law is on the specific issue or issues raised in the appeal or attacks the decision a quo on the facts as being irrational. The remit of this court in determining appeal from the court a quo is therefore narrow.


Put differently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of law on the matter in dispute or, if based on the facts of the matter, to set aside the decision As being irrational. It cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.

The above precedent sheds light on the arguments that are usually presented in these courts where litigants aver that the matter is ‘arguable’. The matter to be presented in the court of appeal should raise points of law and if it is based on the facts, it should demonstrate that the decision arrived at by the court a quo was irrational in that a reasonable court given the same facts, would not have arrived at the same conclusion. In litigation, nearly every case is arguable. That is the sole reason the matter is brought forward in litigation. A distinction must be made where a litigant wishes to approach an appellate court and the statutory requirement is that the appeal should be on points of law. It simply means the grounds of appeal should raise points of law.

I will proceed to deal with the obvious examples of Applicant’s prospective grounds of appeal which do not raise any points of law or, in the alternative show a gross misdirection on the part of Court in arriving at the conclusion it did. The grounds of appeal are couched as follows:

“The Court a quo misdirected itself on issues of law and it exercised its discretion on the wrong principles by-

1. Dismissing the application on the basis that there were no prospects of success on the merits even though it had ruled that there was no willful default as the explanation for the default was reasonable and the argument by the Appellant on the merits was merited and arguable due to the fact that if a supervisor is disabled from acting in communicating the correct decision, another member of the hearing committee may act in her stead.

2. Finding that the Appellant’s application lacked prospects of success because the decision communicated by the Immediate Superior level to the Respondent was a nullity for not having been communicated by the Immediate Superior of Respondent even though the said Immediate Superior was disabled from giving the correct communication, she having been the one who communicated the erroneous penalty initially.

3. Finding that the Appellant’s application lacked prospects of success because the Immediate Superior Level could not communicate the correct decision after an initial incorrect communication had been done.”

A reading of the above cited three prospective grounds of appeal show that they raise one single issue, the one dealing with the communication of the penalty to the Respondent. It is one disgruntlement with the decision of the Court which has been formulated in three different ways. The question that arises is, what is the point of law being raised in those grounds of appeal? It has not been argued that that the Code of Conduct provided differently. There is no reference to the Code of Conduct to buttress the point being raised. It has therefore not been demonstrated that the decision of the Court was anchored on a misinterpretation of the Code of Conduct. The basis upon which the grounds of appeal are saddled remains the subject of surmise and conjecture. It has not been spelt out. It is not suggested by Applicant that there is such a procedure outlined in the Code of Conduct for the Supreme Court to make a determination that the court a quo fell into error in determining as it did. In my view, it is an invitation to the Supreme Court to revisit the entire dispute and exercise a fresh mandate in the matter. This is not permissible.

Professor Madhuku raised the point that the grounds of appeal are long and winding. Indeed, precedent has repeatedly called for grounds of appeal that are concise and precise. It has been stated that grounds of appeal must be clearly and succinctly set out in clear and unambiguous terms to enable the court and the respondent to be fully and properly informed of the case which the appellant seeks to make out and which the respondent is to meet. See Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern Cape Division). The fact that, in casu, the Respondent was able to salvage a response thereto is not evidence that the grounds of appeal are indeed concise and precise. In the result, the first, third and fifth grounds of appeal are struck out.

However, for the sake of completeness, I wish to make the observation that in the Founding Affidavit and the heads of argument, Applicant does not make issue with the findings of the Court in respect of these same issues. I will replicate what this Court had to say hereunder:

“A reading of the above shows that Respondent was sentenced in terms of the Code of Conduct. She was issued with a Written Warning. She later received a second letter which informed her that she had been dismissed from employment. The first penalty was not withdrawn. This means that Respondent received two penalties in respect of the same misconduct. Respondent informed the Court that the first penalty was received from the Immediate Supervisor who was mandated, in terms of the Code of Conduct, to mete the penalty. In her papers applying for review, she also averred that the persons who issued the second penalty did not have jurisdiction to do so. Those grounds for review read in part:

‘1. The Respondent erred at law when they impose(d) two different penalties without following the laid-out procedures in the Delta code of conduct.

2. The second penalty imposed by the Respondent has no legal leg to stand on because it failed to go in conformity with the finding of the immediate superior level committee’s findings.”

Later in the judgment this Court made the following observation:

“What was Respondent supposed to do if it was not satisfied with the penalty issued by the Immediate Supervisor? The Code of Conduct allows a person, or persons aggrieved by a decision at any level of proceedings to appeal to the next level. That the Applicant falls into the category of ‘person’ or ‘persons’ is without doubt as it is a juristic person.”

Respondent clearly brought forward the issue of jurisdiction on the part of the second penalty. In Medicines Control Authority of Zimbabwe v Nathan Toronga and Others SC10/17, GWAUNZA JA (as she then was) had this say at page 7 of the cyclostyled judgment:
 “Jurisdiction in simple terms can be defined as the power or competence of a particular court or tribunal to hear and determine an issue brought before it. *A plea of jurisdiction therefore attacks the competence of a court or tribunal to hear and determine the matter.* It follows that a court or tribunal that has no jurisdiction, for whatever reason, to entertain a matter is not in a position to go beyond the question of its jurisdiction to determine anu other issue to do with the dispute in question.”

In *Schierhout v Minister of Justice* 1926 AD 99, at 109, INNES CJ held as follows:

“It is a fundamental principle to our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done-and that whether the law giver has expressly so decreed or not, the mere prohibition operates to nullify the act.”

Elsewhere in this judgment, I have made the observation that Applicant has not pointed to any provision in the Code of Conduct which permitted the ‘two individuals’ to ‘alter’ the penalty meted to the Respondent. The jurisdiction of the ‘two individuals’ comes into question. It has not been established. One can only surmise that it must be the intention of the Applicant to ‘reveal’ the source of the jurisdiction endowed on the ‘two individuals’ who altered the penalty to the Supreme Court at the opportune time. As the matter stands, both this Court and the Respondent are in the dark. Would the Supreme Court find in favour of the Applicant in the circumstances? The facts militate against such a possibility.

Linked to the above observation is a single issue raised in the remaining three grounds of appeal. The averment is that the application for review brought before this Court was fraught with irregularities. It was stated that the review was filed out of time and it was therefore not properly before the Court. The second point relied upon was that the Court did not give any reasons apart from stating that these were ‘technical issues’.

That the Court dealt with the issues is evident. The statement alluded to by the Applicant as emanating from the decision of the Court shows that the Court indeed had regard to those issues. What is clear is that the Applicant wanted ‘further’ reasons in the judgment of the Court. It must be borne in mind that this Court issued an Ex-Tempore judgment on 30 March 2023 whilst sitting at Mutare. The present judgment which was issued on 30 June 2023 was a result of Applicant’s request for ‘fuller’ reasons. The judgment of the Court in this respect was as follows:

“In oral submissions, Mr. Mahere was constrained to justify the actions by the Applicant is ‘amending’ the penalty and stated that he did not have contrary instructions. He stated that the application for review itself was fraught with defects which the Court should take into consideration is assessing the prospects of success. It is my view that these are technical issues which tend to take the Court’s attention away from the crucial issues for determination”

Probably, it is critical that the matter be brought into its proper context. After Respondent was issued with the ‘second penalty’ of dismissal, she appealed to the next stages as provided for in the Code of Conduct. The issue of the jurisdiction of the ‘two individuals’ was brought into the fray.


These were not sufficiently dealt with by the Applicant. Subsequently, Respondent approached this Court for redress. She was clearly out of time. She was a self-actor then. What is not in dispute is that it was the Applicant who had not dealt with the pertinent issue of the jurisdiction of the ‘two individuals’ which Applicant is now relying upon. The Labour Court Rules, 2017, allow a Judge/Court to condone the non-compliance by a litigant with the Rules where the Judge/Court deems it proper and in accordance with the interests of justice. That this is so is without question.

In **Edmore Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited** SC 81/22, BHUNU JA had this to say at page 8 of the cyclostyled judgment:

“It is therefore clear from the authorities that the primary function of the court a quo is do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law a beginning to mellow and drift towards the idea of correction of simple procedural errors in order to do real and substantial justice.

When interpreting statutes and codes of conduct, the court a quo should endeavor to give a broad liberal interpretation that is not embroiled in flimsy legal technicalities in order to achieve social justice based on equitable labour standards.”

I have pointed out earlier that Applicant failed to deal with the issue of jurisdiction raised by the Respondent. This delayed the filing of the application for review before this Court. Should the Court have dallied and refrained from dealing with the pertinent issue raised in the application? I think not. In **Gwanda Rural District Council v Lourens Martinus Botha (SNR)** SC 174/20, BHUNU JA made the following observation at page 11 of the cyclostyled judgment:

“Having said that, the learned judge a quo buttressed his legal sentiments with the leading case of **Standard Chartered Bank of Zimbabwe Ltd v Matsika** 1997 (2) ZLR 389 (S) at 389 G for the proposition that no one should be allowed to benefit from his own wrong. In that case KORSAH JA had this to say:

‘A cardinal principle of the common law is expressed in the aphorism; ‘nemo ex proprio dolo consequitur actionem’, which translates; no one maintains an action arising out of his own wrong. Complementary to this principle is another which stipulates; ‘nemo ex suo delicto meliorem suam conditionem facere potest, which means no one can make his better by his own misdeed’.

It is my considered view that the utilization of the court rules coupled with the precedents clearly address Applicant’s averments that the Court did not address the issues raised in the application for review filed with this Court. It is very unlikely that the Supreme Court will find favour with Applicant’s averments as stipulated in the present application.

I should also point out that this matter brings to the fore the issue of well-heeled litigants who are able to file appeals and applications relentlessly with the obvious result that the other party is eventually worn down. This issue was referred to by Professor Madhuku in submissions. I refer to this point particularly because this Court requested Mr. Mahere who represented the Applicant in the previous hearing to explain the course of action by the Applicant in rendering two penalties in respect to one act of misconduct. As captured in this Court’s judgment, Mr. Mahere was unable to meaningfully make submissions and could not make any concessions without instructions from the client. It was clear at that stage that the actions taken by the Applicant were inconsistent with the provisions of the Code of Conduct. Such actions by ‘well-heeled’ litigants have the adverse effect of delaying justice and should be frowned upon.

This brings me to the issue of costs. In **Selexes v State Procurement Board and Others** SC 45/16, it was held as follows:

“While parties and lawyers are entitled to have their day in court, they must exercise that right responsibly and with due care and diligently not to abuse court process. It is rather unethical and abuse of court process for litigants and particularly lawyers to waste the court’s valuable time presenting dead unarguable cases in the vain hope that flogging a dead horse will somehow resurrect it to life.”

**BHUNU JA** had this to say in **Tamanikwa and Another v Zimbabwe Manpower Development Fund and Another** SC 73/17:

“...those who deliberately defy wise counsel and go on to negligently cause others patrimonial loss must not cry foul when they are made to make good the loss.”

I refer specifically to the hearing wherein Applicant was represented by Mr. Mahere. It was clear from the responses that he gave that what Applicant had embarked upon was not provided for in the Code of Conduct. It is there for everyone to see. Applicant ‘inflicted’ two penalties on its employee contrary to the provisions of the Code of Conduct. The applicant did not utilize the legally provided appeal route to remedy the situation. The employee at first was a self-actor until the arrival of **Professor Madhuku**. Respondent has been made to defend Applicant’s applications at every twist and turn. She has been put out of pocket because of Applicant’s litigation. I am of the view that the present case requires costs on the legal practitioner/client scale.

In the result, the application for leave to appeal to the Supreme Court is hereby dismissed with costs on the legal practitioner/client scale.

Gill Godlonton & Gerrans- Applicant’s legal practitioners

Lovemore Madhuku Legal Practitioners- Respondent’s legal practitioners.
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