Dumisani Nyathi v Republic of South Africa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/184/2023
HARARE, 27 SEPTEMBER 2022 AND 3 JULY 2023
CASE NO LC/H/483/22
DUMISANI NYATHI
APPLICANT
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DUMISANI NYATHI

APPLICANT

REPUBLIC OF SOUTH AFRICA

RESPONDENT

Before the Honourable Chivizhe Judge:

For Applicant    Mr T. Deme (Legal Practitioner)

For Respondent    Mr M. Mbuyisa (Legal Practitioner)

CHIVIZHE, J:

The matter was placed before me as an interlocutory application to compel the Respondent to furnish the Applicant with the minutes of the disciplinary hearing that had been convened from 14th to 17th November 2017. The application is opposed.

The material background facts to the matter are as follows. The Applicant is a former employee of the Respondent having been employed as a Consular Clerk. He was dismissed from employment following a formal disciplinary hearing. The Applicant was aggrieved with the determination of the Disciplinary Committee. He noted an appeal to this court under case number LC/H/341/19 which matter is currently pending. The minutes of the disciplinary hearing convened by the Respondent that led to the Applicant dismissal however do not form part of the record under reference LC/H/134/19. The Respondent through its papers submits that despite a diligent search it has been unable to locate the minutes and its employees who were present when the disciplinary hearing took place have relocated to other diplomatic missions.

The Applicant however believes that the non-compliance by the Respondent with this court rules requiring Respondent to furnish the minutes of the disciplinary hearing is highly prejudicial to his case pending before this court. The Applicant also believes his rights to a hearing as enshrined under the **Constitution section 69** are also being violated in the process. He has therefore lodged the present application.

The nature of the Application

The Applicant has styled the application as being an interlocutory application to compel production of minutes of disciplinary hearing. The application is said to be in terms of **Rule 23** of the **Labour Court Rules, S.I. 150 of 2017**. The Respondent has raised preliminary points in regard the application. Respondent contends that the application has no clear basis at law. The Applicant is said to be hopping from one provision to the other to justify the basis of the application. The Respondent also contends that the relief being sought, being in the form of a mandatory interdict, this court has no jurisdiction to grant the same. The prayer is for the application to be struck off. The Respondent also contends, as a third point that it has despite a diligent search failed to locate the minutes so even if the court were to grant the order as sought it would amount to a *brutum fulmen*. On this basis the Respondent prayer is for the application to be dismissed. The last objection raised is that there are factual allegations that are now being made by the Applicant in his Heads of Argument which were not contained in his Founding Affidavit. It is Respondent’s prayer that this court ought to disregard these allegations and determine the matter only on the basis of the issues as reflected in Applicant’s Founding Affidavit.

I shall proceed to determine the first two *points in limine* in view of the fact that they raise a jurisdictional point. The first point pertains to the lack of any provision either under the Labour Act or the rules which makes provision for an application such as this one which is seeking to compel a party to produce a document. It is indeed the position at law that the labour Court, being a creature of statute, is granted power to determine only applications that are provided for in the provisions of the **Labour Act**, its rules and any other enactment. This position was stated in the case of **National Railways of Zimbabwe vs Zimbabwe Railways Association Union & Others SC 08-2005** where the Supreme court stated as follows;

“…before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application :in terms of this Act or any other enactment.” This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring….nowhere in the Act is the power granted to the Labour Court to grant an order of the nature sought by the respondents in the court a quo, nor have I been referred to any enactment authorising the Labour Court to grant such an order.”


The position has also been restated in **Rhino Trust vs Senate Dhlomo Bhila SC 34-2020** aptly referred by Respondent.

The Applicant has in his papers referred to the application as being variously provided for under the **Labour Act** and its Rules. He has referred to under **rules 19(1) and 23** of the **Labour Court Rules, 2017, Section 69 of the Construction of Zimbabwe.**

**Section 69** of the **Constitution of Zimbabwe** provides as follows;

“every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

It is clear that **section 69** in its content and application does not empower this court to determine the present application. It is a provision that generally protects an individual’s right to a fair hearing before an independent and impartial court. **Rules 19 and 23 of the Labour Court Rules, 2017** also do not grant this court any power to compel an employer to produce a record of proceedings. They both provide as follows;

**19**

“A person wishing to appeal against any decision determination or direction referred to in the Act, shall, within twenty-one days from the date when the appellant receive the decision determination or direction or award do the following-

(a) Complete in three copies of appeal in Form LC 4; and

(b) Make three copies of any of the documents referred to in subparagraphs (i) to (iv) as are relevant to the appeal, if they are in the possession of the appellant-

(i) The record of any charge or allegation of misconduct that was served on the appellant, if any,

(ii) The minutes or record of any proceedings or hearing undertaken to inquire into any charge against or allegation of misconduct on the part of the appellant;

(iii) a minute or record of any decision, determination, direction or award made at the conclusion of any proceedings or hearing referred to in subparagraph (ii);

(iv) the letter of suspension or dismissal from employment, if any;

(c) deposit with the Sherriff an amount to be determined by the Sherriff as security for costs of service of the notice of set down.

(d) File with the Registrar one of the other copies of the notice of appeal, together with-

(i) A copy of the documents, if any, referred to in paragraph (b)’

(ii) Proof of payment of the Sherriff’s costs for service of the notice of set down; and

(iii) proof (as required by rule 11) that the notice of appeal was served on the respondent,

(e) serve one copy of the notice of appeal, together with a copy of the documents, if any, referred to in paragraph (b), on the respondent within ten days of; and


(f) retain a copy of the notice of appeal, and of the documents, if any, referred to in paragraph (b), for himself or herself.


23. Where a party to any matter pending before the Court wishes to make an application to the Court in respect of any matter for which an application may be made in terms of these rules, the applicant shall give not less than ten days’ written notice of the application to the Registrar and the other party specifying the nature of the application and the grounds upon which it is made unless a Judge or the Court otherwise directs.

Section 89(1) of the Labour Act [Cap 28:01] which the Applicant has not specifically referred to is the section that outlines the Labour Court functions, powers and jurisdiction.

Section 89(1) provides as follows;

Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions-
(a) hearing and determining applications and appeals in terms of this Act or any other enactment; and
(b) hearing and determining matters referred to it by the Minister in terms of this Act, and
(c) referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court can siders it expedient to do so;
(d) appointing an arbitrator from the panel of arbitrators referred to in subsection (6) of section ninety-eight to hear and determine an application;
(e) exercise the same powers of review as would be exercisable by the High Court in respect of labour matters
(f) doing such other things as maybe be assigned to it in terms of this Act or any other enactment

It is clear from a perusal of Section 89(1) this court is granted power to hear and determine applications and appeals made in terms of the Labour Act and any other enactment. This position was clearly stated in the NRZ judgment referred to supra. The issue that arises therefore is whether this application is made in terms of the Labour Act [Cap 28:01]. It is clear that the present application is not premised on any specific section of the Labour Act which provides for such an application. Rules 19 and 23 as referred to above do not make any specific provision for such an application. On the basis of NRZ judgement and indeed the latter decisions such as Rhino Trust vs Senator Dhlomo Bhela referred to above the application not being provided for under the Labour Act and any other related enactment, is clearly an invalid application.

There is also a second compelling reason. It is common cause a court derives its power/competence to hear/determine a matter not only from the provisions of the statute but also on the basis of its power to grant the relief sought. In this case the Applicant is seeking in relief for a mandatory interdict. On the basis of authorities this court has no power to grant a declarator or a mandatory interdict as prayed. See Sibanda and Another vs Chinemhute
 N.O. and another HH131 of 2004. It is therefore the finding of this court that the present application not being one provided for in the Labour Act or any other related enactment, and secondly in seeking an incompetent relief before this court therefore amounts to an invalid application. The application ought to clearly be struck off the roll.

In arriving at this position it is however clear to the court that Applicant is not without any form of recourse. It is conceded that there is already an appeal pending before this court. The rules of this court place an obligation on a litigant filing an appeal to at the same time file a record of proceedings. See Rule 19 referred to supra. Rule 19(2)(f) also places an obligation on a Respondent to make available any documents which may be in its possession at the time of filing of its response. Rule 19(2)(f) reads as follows:

“make copies of any documents which are in his or her possession and have not been availed by the appellant and at the time of filing the response file them with the Registrar and thereafter serve the appellant.”

It is accepted in this case that the record of proceedings in this matter was in Respondent’s possession. The Respondent has, however failed to make available the record of proceedings. It contends that the record of proceedings is no longer available for reasons as espoused in its papers. Does this mean therefore the litigant seeking to have his appeal heard has no recourse in such circumstances. I believe not. Form LC 9 as provided for in the rules is a Document Summons. The Registrar of court can require a party to place such documents before the court within ten (10) days of receipt of the summon. The fact that the Form is included shows that the legislature saw the need to ensure that parties can be summoned to produce documents so that the court may be able to exercise its constitutional mandate. i.e. to hear and determine matters. The approach taken by the Respondent to suggest that because of the unavailability of the record the case should fall on the wayside without closure is not proper. A dispute ends by the court determining on the rights of the parties. In the absence of such there can be no finality to litigation. In this case Respondent contends that it can no longer locate the record of proceedings for reasons as indicated above. Given the circumstances it would only be fair and just for Respondent to quash the disciplinary proceedings and conduct fresh proceedings if so desired. The Respondent cannot be seen as seeking to benefit from a situation that it has created by allowing the appeal to die a natural death. That the Respondent is acting unfairly to the Applicant is manifestly clear as the Applicant cannot successfully argue his appeal in the absence of the record of proceedings. It is not enough for Respondent to simply state that Applicant should argue on the basis of the determination alone. The Rules of this court require production of the actual record of proceedings. The Respondent has simply not complied with that requirement in this case.

In the result it is ordered as follows:

The present application, not being provided for under the Labour Act or any other related Acts, is an invalid application, it is accordingly struck off with no order as to costs.

Mtwetwa and Nyambirai, Respondent’Legal Practitioners
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