Duplicate Ndoda v Zimbabwe Platinum Mines Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT
NO.LC/H/08/2022
HELD AT HARARE ON 26TH OCTOBER, 2021
CASE
Judgment No. LC/H/08/2022
Case No. LC/H/14/21
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IN THE LABOUR COURT OF ZIMBABWE    JUDGMENT NO.LC/H/08/2022

HELD AT HARARE ON 26TH OCTOBER, 2021            CASE NO.LC/H/14/21

AND 14TH JANUARY, 2022

In the matter between:-

DUPLICATE NDODA						APPELLANT

And

ZIMBABWE PLATINUM MINES LIMITED			RESPONDENT

Before the Honourable Makamure, J.

For the Appellant		:	Mr. K. Masasire (Legal Practitioner)

For the Respondent	:	Mr. P. Dube (Legal Practitioner)

MAKAMURE J.

[1]	This matter came on appeal.  Before the appeal could be argued, four (4) preliminary issues were taken on behalf of the respondent.  These are that:

“(a)	The grounds of appeal are vague and embarrassing in the sense that they challenge decisions of committees without identifying the committees so referred to and also without linking each of the grounds to the respective committee’s decision.

The grounds of appeal ought to be struck off since they proceeded on the mistaken view that the appeals committee made findings of fact and exercised discretion.

The prayer is defective in that it seeks the setting aside of a non-existent “Disciplinary Committee Decision of 5 February 2021”

The prayer is also defective in that it does not seek a setting aside of the disciplinary committee’s decision.”

[2]	In support of the averment that the grounds if appeal are defective and generalised Mr. Dube who appeared for the respondent referred to, among others, the cases of DR. KUNONGA v THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA SC 25/17; CHRISTOPHER SAMBAZA v AL SHAM’S GLOBAL BVI LTD SC 3/18 and (1) JOHN CHIKURA N.O. (2) DEPOSIT PROTECTION CORPORATION v AL SHAM’S GLOBAL BVI LTD SC 17/17.  Mr. Dube argued that the court is left wondering as to what is being challenged on grounds 2 and 3.  Mr. Dube submitted that the grounds of appeal are not concise and clear.  Mr. Dube prayed that the Appeal be struck off.

[3]	Mr. Dube also attacked the prayer arguing that it is defective.  The prayer, Mr Dube argued, is referring to 5 February, 2021.  With respect to the date of 5 February, 2021 the Respondent conceded that a typographical error occurred and that the correct date of the decision is 2 February, 2021.  Even then Mr. Dube argued that the relief sought is unclear.  Mr. Dube argued that should only the decision of the Appeals Committee be set aside, it leaves the decision of the Disciplinary Committee of 23 December 2020 extant.  Mr. Dube argued that the prayer should address every offending decision.  This, the Appellant has not done.  In support of this argument Mr. Dube relied on the authority of the case of FADZAI JOHN v DELTA SC 40/2017.

[4]	In response Mr. Masasire defended the use of the word “committees” submitting that these are internal disciplinary processes after which one can then approach this court.  He also submitted further that the grounds of appeal were precise and clear.  He also submitted that the grounds of appeal address the issues which emanated from the hearing.  Mr. Masasire argued that the respondent did not explain how the authorities cited on behalf of the respondent, in support argument, applied to the preliminary issues raised.  Mr. Masasire argued further that the court has the power to make any order in terms of section 69 of the Constitution.  This power, argued Mr. Masasire, includes the power of substituting the prayer with the court’s own.  It was further submitted that the prayer in the present matter is typical in labour matters.  Mr. Masasire urged the Court to dismiss the preliminary issues.

[5]	In reply Mr. Dube persisted with the submission that the question of “committees” in the grounds of appeal should have been clarified.  It was Mr. Dube’s further submission in response to the prayer that the prayer in the present matter is untenable at law.  In support of this submission the court was referred to MATANHIRE v BP & SHELL MARKETING SC 113/2004.  It was submitted that it is not the duty of the court to couch a prayer or grounds of appeal for the parties.  Mr. Dube submitted that the principle that labour matters should not be decided on technicalities will not apply where the notice of appeal is based on a nullity.  In the result it was submitted that the appeal must be struck off the roll with costs.

[6]	I will now refer to the grounds of appeal.  They are as follows and I quote:

“1.	The committees aquo erred and misdirected themselves at law in finding the Appellant guilty of the offence of breaches relating to theft or fraud when there was no evidence proved by the complainant that the Appellant committed the offence of theft thereby rendering the dismissal unfair.

2.	The disciplinary committees erred grossly and misdirected themselves at law in coming up with a dismissal penalty when the penalty provided in the code of conduct for the offence in question was that of a final written warning and a dismissal was conditional in terms of the Code.

3.	The disciplinary committees erred and misdirected themselves in failing to consider that the exercise of their discretion in arriving at a dismissal penalty was grossly irrational and unreasonable in the circumstances of the case thereby rendering the decision irrational”

The prayer reads:

“WHEREFORE, Appellant pray (sic) as follows:

The appeal be and is hereby allowed.

The decision of the disciplinary committed (sic) dated 2 February 2021 be and is hereby set aside and substituted with the following

“The Appellant be and is hereby found not guilty of the offence Charged”-

The Respondent be and is hereby ordered to reinstate the Appellant back to his position without any loss of salary and benefits or alternatively payment of damages in lieu of reinstatement.

The Respondent to pay costs of suit”

(Emphasis added).

[7]	I will now consider the contents of the Notice of Appeal visa-vis argument for and against the preliminary points raised.

The introductory part of the notice of appeal refers to:

“…both conviction and penalty of the decision of the disciplinary and appeal hearing handed down in 2 February, 2021 at Ngezi Mhondoro”.

On 23 December 2020, a disciplinary hearing was conducted against the appellant.  Appellant was found in possession of property which was stolen from the respondent.  This was not disputed.  What was in dispute was how he got the said property.  At the conclusion of the hearing the Appellant was found guilty of provisions of the applicable code of conduct in respect of breaches relating to theft or fraud.  He was penalised with dismissal.  It is this Committee which made factual findings with respect to the charges levelled against the Appellant.

The appeal hearing was conducted on 23 January, 2021 and 2 February, 2021.  According to the record, on 2 February, 2021 the Disciplinary Appeals Committee (NOT the Disciplinary Committee) dismissed the Appellant’s appeal and confirmed the earlier decision.  The Disciplinary Appeals Committee considered the Appellant’s grounds of appeal in terms of the applicable code.  In so doing it clearly indicated that its purpose was not to rehear the matter but to hear the grounds of appeal.  At the conclusion of the appeal hearing the appellant and his legal practitioner were advised that there was no reason to depart from the decision of the Disciplinary Committee.  So the two decisions were handed down on two different dates.  What this means is that when the appellant refers to the 2nd of February 2021 as the date on which both decisions were handed down, he is incorrect.

[8]	In (1)  JOHN CHIKURA N.O.  (2)  DEPOSIT PROTECTION CORPORATION v AL SHAM’S GLOBAL BVI LIMITED SC 17/2017 the Supreme Court quoted with approval SONGONO V MINISTER OF LAW AND ORDER 1996 (4) SA 384, where the Court held that:

“…it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet…”

[9]	The Appellant in the present case refers to both the disciplinary and appeal hearing, that is, the “committees”.  That is vague.  The respondent and the court are left to wonder which is which.  That is exactly what the authorities say should not be the position.  The grounds refer to “committees” without identifying or being specific as to which committee erred and in what respect.  Given the fact that the only date which has been referred to is 2 February 2021, the grounds of appeal become even more vague.  On 2 February 2021 the Appeal Hearing concluded the appeal process and on the same date wrote a dismissal letter which the appellant signed as proof of receipt of the same. As noted earlier on, the initial tribunal had concluded its deliberations on 23 December 2021.  So what happened on 23 December 2021 cannot be said to have happened the 2nd February 2021.

[10]	The record is clear that the Disciplinary Appeals Committee confirmed or upheld a decision already made by the initial hearing.  It did not make its own new findings.  The case of FRASER MUYAKA V BAK LOGISTICS (PVT) LTD SC 39/17 makes this position clear where the Supreme Court at page 4 of the

cyclostyled judgment stated that:

“Findings of fact in any proceedings except where an appeal is heard in the wide sense (a rehearing) are made by the initial hearing authority, tribunal or court of first instance.  They can, except in the case of an appeal in the wide sense, only be made once by such disciplinary authority, tribunal or court.  In this case, they were made by the initial disciplinary authority.  Thereafter from the respondent’s internal appeals officer to the Labour Court, the task was not  to make findings of fact, but to assess the findings of fact made by the disciplinary authority…” (My underlining)

[11]	There is therefore no way in the present matter where the appeal can be against “committees”.  There is a clear distinction as to which committee made the initial decision and what happened after the initial decision.  The appellant can therefore not decide to vaguely refer to “committees” in order to leave both the respondent and the court unsure of what or which decision the grounds seek to challenge.  That is totally unacceptable.  What this means is that all the grounds of appeal, in as far as reference to the “committees” is concerned are vague.  On countless times the Supreme Court set out principles to follow when drafting grounds of appeal.  One would be inclined to think that where parties are legally represented, the grounds will meet the requisite standard.  This is so because legal practitioners are officers of the court and should assist and not abuse the Court.  In DR NOBERT KUNONGA V THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA SC 25/17 (KUNONGA).  The Supreme Court stated that:

“[19] Rule 32 of the Rules of this court provides that the grounds of appeal contained in a notice of appeal must be clear and concise.  Many decisions of this court and the courts in South Africa have, over a long period of time, explained what is meant by the term, but this notwithstanding, many lawyers, including very senior ones, continue to experience considerable difficulty in properly formulating grounds of appeal that comply with the Rule.”

The learned Judge of Appeal in the KUNONGA case (above) then traced the history of the term in an effort to give guidance to parties on how to formulate grounds of appeal.  The learned Judge of Appeal quoted with approval from SONGONO v MINISTER OF LAW AND ORDER 1996 (4) SA 384 (EASTERN CAPE DIVISION) as follows:

“… the point is that the notice must clearly set out the grounds and it is not for the court to analyse a lengthy document in an attempt to establish what grounds the applicant intended to rely upon but did not clearly set out…”

[12]	In the present case the notice of appeal is not a lengthy document.  However, it is very vague.  While it was submitted that the said grounds are clear and concise, I have failed to see the clarity and the conciseness.  I am therefore persuaded to agree with Mr. Dube that the grounds of appeal are vague.

[13]	The prayer is even more vague.  One cannot tell what is to be set aside.  The decision dated 2 February 2021 was made by the Disciplinary Appeals Committee.  It appears not to be the one intended to be set aside.  This is said in view of the wording of the prayer which seeks to have the decision of the disciplinary committee dated 2 February 2021 to be set aside.  Obviously the disciplinary committee did NOT make its decision on 2 February, 2021.  It is axiomatic that the decision which is referred to in the introductory part of the notice of appeal is NOT the one sought to be set aside.  This therefore means that what ever decision is sought to be set aside would still leave both the decision of the initial disciplinary hearing and the Disciplinary Appeals Committee extant.  If that were to happen, then the Appellant would not have achieved much.  When one considers the “prayer”, there appears to be no prayer at all.  He might as well have not appealed at all.  In FADZAI JOHN v DELTA BEVERAGES LIMITED SC 40/17 the Supreme Court stated that:

“It has been emphasised in several judgments of this court that the rules require that a prayer in the notice of appeal must (be) exact in nature…  In seeking to set aside the decision of the court a quo, the applicant neglected to address what should happen to the decision of the disciplinary hearing...”

The Court in FADZAI JOHN (above) quoted with approval from CHAMBOKO v DOROWA MINERALS LIMITED SC 26/15 where it was stated that

“In any case an applicant for leave to appeal must file a notice of appeal that conforms to the requirements of the rules of court at the time the application for leave to appeal is made.  Where the notice of appeal is fatally defective, there is no valid application.”

[14]	I respectfully associate myself with the above sentiments.  It is therefore my finding that there is merit in the preliminary issues raised.

The preliminary issues are upheld.

I am therefore persuaded to agree with Mr. Dube that there is no valid appeal before the Court.  It should be struck off the roll.

Accordingly it is ordered that the appeal be and is hereby struck off the roll with costs.

MUSONI, MASASIRE LAW CHAMBERS – Appellant’s legal practitioners

DUBE, MANIKAI & HWACHA – Respondent’s legal practitioners