Delta Beverages (Pvt) Ltd v Peggy Kuneka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
30 MARCH 2023 AND 30 JUNE 2023
JUDGMENT NO. 179/23
CASE NO. LC/H/868/22
IN THE MATTER BETWEEN:-
DELTA BEVERAGES (PVT)
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IN THE LABOUR COURT OF
ZIMBABWE HELD AT HARARE 30
MARCH 2023 AND 30 JUNE 2023

IN THE MATTER BETWEEN:-
DELTA BEVERAGES (PVT)
LTD AND
PEGGY KUNEKA

Before Honourable Mr. Justice L.M. Murasi

APPLICANT

RESPONDENT

For Applicant
Mr. F. Mahere
Respondent
In Person

MURASI J:

On 30 March 2023 this Court issued an Ex Tempore decision dismissing Applicant’s application for rescission of the default judgment delivered by the Court sitting at Mutare Circuit Court. Applicant is dissatisfied with the dismissal of the application for rescission and intends to approach the Supreme Court. Applicant has therefore requested for the full reasons. These are they.

In the Ex tempore judgment, the Court indicated that Applicant had given a reasonable and acceptable explanation in the circumstances. This was because it was explained that Applicant’s legal practitioner had attended court at Harare instead of Mutare. Having realized the error, the legal practitioner attempted to assign a correspondent firm to deal with the matter in Mutare. However, the matter had already been dealt with by the time this other legal practitioner approached the Court in Mutare.

The Court however found that Applicant did not have prospects of success in the circumstances. This is the issue the Court will presently address. It is common cause that Respondent was brought before a
 Disciplinary Committee charged with misconduct. This was before the Immediate Supervisor as provided in the Code of Conduct. The Respondent was found guilty. The Immediate Supervisor imposed a Written Warning as the penalty. The Respondent continued to come to work as a result. After some time, Respondent received a second ‘penalty’ which dismissed her from employment. This penalty did not emanate from the Immediate Supervisor as provided by the Code of Conduct. It came from two persons who were part of the panel during the Disciplinary Committee proceedings. This is the matter that Respondent brought before the Court on review. She averred that what Respondent subsequently proceeded to do was procedurally irregular as those persons who later delivered the penalty of dismissal did not have the jurisdiction do so.

During the hearing, the Court established the following from the Respondent:

“Court: You received communication from Immediate Supervisor?

A: Yes.

Court: Did you report for duty?

A: I continued reporting for duty for almost a month after receiving the letter, I only stopped after receiving a second letter.

Court: After how long did you receive the second letter?

A: 33 days.

Court: Who were the authors of the second letter?

A: It was authored by HR Officer, he was not part of the Department. Court: Was he part of the hearing committee?

A: Yes he was part of the hearing committee.”

A reading of the above shows that Respondent was sentenced in terms of the Code of Conduct. She was issued with 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 out 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.”

In **Saphula vs Nedcor Bank Ltd** 1999 (2) SA 76 (W) it was held that the purpose of a rescission application is to restore the opportunity to ventilate a real dispute. It was further stated that once it has been established that the judgment was properly granted or obtained the question arises as to what justification could there be to ‘falsify’ the past (altering what is judicata) only in order to make life easier for a party. In all its submissions, Applicant does not aver that the actions of the HR Officer and another member of the hearing committee was correct. Applicant does not aver that this procedure was provided in the Code of Conduct. Indeed, Respondent raises the issue in the grounds for review that the procedure in this case was not provided for in the Code of Conduct. The resulting question is therefore whence did these individuals obtain the jurisdiction to overturn the penalty imposed by the Immediate Supervisor who had such authority in terms of the Code of Conduct? This has not been explained by the Applicant as it has conveniently waded clear of these troublesome waters.

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’ of ‘persons’ is without doubt as it is a juristic person. An artificial entity is therefore able to appeal against a decision if dissatisfied with the result. This was held to be case by MATHONSI JA in **ZESA Holdings (Private) Limited vs Obson Matunja** SC 73/22. 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. It must perforce be remembered that a Code of Conduct is an agreement between the employees and the employer regarding issues of discipline and how they should be addressed. Applicant reneged on its part to uphold the agreement in question. Clearly the persons who purported to issue the dismissal penalty did not have any jurisdiction to do so. The absence of jurisdiction is a reviewable action under both the common law and the Labour Act. In **Musara vs ZINATHA** 1992 (1) ZLR 9 (H) it was held by ROBINSON J at 13 F-H:

“Although, admittedly, Prinsloo’s case is a criminal case, I consider that the same approach should be adopted by the court in a civil case where, on the papers before it- the more so where, those papers seek a declaratory order- an act of glaring invalidity is, as in this matter, staring the court straight in the face. For the court to refuse, save in exceptional circumstances justifying such refusal, to declare the act in question null and void ab ignition, on some technical ground, would, I agree, be to ignore the court’s fundamental duty to see that justice is done which, after all, is the duty which the layman expects the courts to discharge.”
 In oral submissions, *Mr. Mahere* was constrained to justify the actions by the Applicant in ‘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 in 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. The following was stated in **Le Grand vs Carmelu (Pvt) Ltd** 1979 RLR 402 AD at 404 F-H:

“The Civil Courts in common with the Criminal Courts exist to do justice and not to provide some practitioners with a forum in which relying upon technical and wholly academic points, attempt to prevent a Court adjudicating upon the real issues…A Civil Court is not to be allowed by the presiding judicial officer to degenerate into a contest on technical and wholly academic points which obscure and even frustrate a trial on the real issues.”

It is therefore my considered view that there are no prospects of success as Applicant clearly abrogated the provisions of the Code of Conduct.
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