Egness Dube and Others v Givemore Nderere and Others

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Judgment No LC/H/236/25
Case No LC/H/399/24
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Judgment No LC/H/236/25

Case No LC/H/399/24

EGNESS DUBE AND OTHERS VS

GIVEMORE NDERERE AND OTHERS

THE LABOUR COURT OF ZIMBABWE BULAWAYO, 3 DECEMBER2024, 2 JULY 2025

For the applicants;	Mr. J.Dondo For the respondent; Mrs Madzonge

JUDGEMENT

HOVE J: This was an application for a review against a decision by the 3rd respondent against the applicants.

BRIEF FACTS

The 1st applicant was employed as a School Head at Windview Primary School. She, in her capacity as School Head, instituted disciplinary proceedings against an employee of the school, one Mrs Nderere. Mrs Nderere was found guilty and dismissed.

Mr Nderere who was Mrs Nderere’s husband purporting to act as the majority shareholder of the 2nd respondent, instituted disciplinary proceedings against the school head, the first respondent and the other applicants in these proceedings.

A legal battle then ensued between the applicants and Mr Nderere who alleged to be the majority shareholder of the school.

The dispute was brought before a disciplinary authority which had been allegedly appointed by the school. The said disciplinary authority summoned the four applicants and

charged them with an act or conduct or omission inconsistent with the fulfillment of the express or implied conditions of his or her conduct in contravention of section 4 (a) of the National Code. The factual basis of the charge was that they had charged Mrs Nderere, the deputy head when they had no authority to charge her. They had proceeded to find her guilty and to dismiss her. The complainant in these proceedings was Mrs Nderere. The applicants denied the charges and raised several grounds for resisting the charges which included that;

Mr Nderere had no locus standi to bring disciplinary proceedings against employees of Windview Primary School.

The claim of being the majority shareholder was disputed. Mr Nderere was neither an employee nor an employer and had no authority what so ever to represent the school. It was also argued that he was not in the school structures and lacked authority to act on behalf of the school. Further, it was submitted that he did not sit in the School Management Board.

It was further argued that the disciplinary authority had no jurisdiction as it had been appointed by Mr Nderere who had no authority to appoint him in the first place.

The disciplinary authority dismissed the preliminary point and ruled that it had jurisdiction over the matter and that the disciplinary proceedings had to proceed. The disciplinary authority then proceeded with the disciplinary process and found the applicants guilty.

The applicants were aggrieved and approached this court on review.

When the matter came up for hearing before this court, a preliminary issue was raised on behalf of the respondent that the matter was now moot and no useful purpose could be gained in persisting with the matter. The court held that the matter was not moot and that the matter should proceed to be argued on the merits of the application for review.

THE APPLICANT’S GROUNDS FOR REVIEW

Four grounds for review were raised by the applicants.

Bias on the part of the disciplinary authority.

Gross unreasonableness again on the part of the disciplinary authority whose decisions were alleged to be grossly unreasonable.

Lack of jurisdiction or authority on the part of the disciplinary authority.

Vengeance

The application for review was opposed. The court considered it appropriate to first deal with the ground for review which alleged bias and non-disclosure.

BIAS AND FAILURE TO DISCLOSE VITAL INFORMATION

The applicants allege that up until sometime in 2019 the 3rd respondent was a partner at Messers Matsikidze and Mucheche Legal Practitioners. The 3rd Respondent practiced law together with Mr Matsikidze. Mr Matsikizde is currently practicing law at Messrs Matsikidze attorneys at law who are currently representing the first and seconds respondents in these proceedings.

The 3rd respondent is alleged to have failed to disclose that he practiced law together with Mr Matsikidze as partners. Further, it was alleged that this information ought to have been disclosed to the parties as it was material information. A reasonable person would have formed the opinion that the 3rd respondent who had been appointed as the disciplinary authority by 1st and 2nd respondents who are represented by the Law Firm, Messrs Matsikidze attorneys, would most likely be biased in favor of his former partner’s clients.

THE RESPONDENT’S ARGUMENTS

It was argued on behalf of the respondents, in resisting this allegation of bias that the apprehension of bias are without merit and farfetched. The appointment had been made by the employer and not the legal practitioners. The basis of the appointment was that the 3rd respondent was professional and was an experienced person. It was argued that an employer

has a right to appoint a disciplinary authority. The applicants had failed to prove bias, it was argued that one had to show proof that indeed there was bias and the applicants had failed to demonstrate such.

The respondents argued further that the test for bias had not been satisfied. The applicants merely had a perception of bias or apprehension of bias which was not reasonable. Reliance was placed on the case of Nhari V ZABG Limited SC6/20 where it was stated that an apprehension of bias that it whimsical or morbid cannot pass the test. The respondents argued that an application for recusal on the basis that practitioners once worked together was whimsical and no reasonable person can form the view that there could be bias.

THE APPLICANT’S ARGUMENTS

The applicants argue that the 3rd respondent should have disclosed that he had worked together with Mr Matsikidze as partners practicing law in the same law firm. This was material and should have been disclosed to the parties for them to make informed decisions.

It was submitted that the test for bias is not to prove that bias had actually been proved but it was sufficient to show that a reasonable suspicion of bias existed. The test is a reasonable suspicion of bias.

THE LAW

The position of law is as was set out in the case of Metropolitan Properties Ltd V Lannon

1968 (3) Aller 308 where the learned Judge stated as follows;

“In considering whether there was a real likelihood of bias, the court does not look at the mind of the Chairman of the tribunal, or whoever it is who sits in the Judicial capacity. It does not look to see if there was a real likelihood that he would, or did in fact favor one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was impartial as could be, nevertheless, if right minded persons would think that, in the circumstances, there was

a real likelihood of bias on his part, then he should not sit, and if he sits, his decision cannot stand…. nevertheless, there must appear to be a real likelihood of bias, surmise or conjecture is not enough….. There must be circumstances from which a reasonable man would think it likely or probable that the justice ….. would, or did favor one side unfairly.”

This case summarizes the position of law which is that the test for bias is that of a reasonable suspicion of bias.

THE NHARI CASE (SUPRA)

The position of law stated in the Nhari case is that the apprehension of bias must not be whimsical or morbid. It would therefore be important to establish whether or not the circumstances of this case disclose a morbid or whimsical apprehension of bias. Or whether a reasonable person could have gone away thinking there would be bias.

ANALYSIS

The courts have previously had occasion to consider facts similar to those before this court in casu. In the case of Zemqos Incorporated (Pvt) Ltd V City Parking (Pvt) Ltd and others HH 172/20, Mr Lloyd had worked together with Mr Muchada Masunda. The Judge had no reason to doubt the professionalism of both Mr Masunda and Mr Lloyd but they had failed to disclose their previous relationship as work mates. The court in that case held that there had been a material non disclosure and the proceedings could not be allowed to stand. The court stated in that case that it is important to disclose a previous work relationship. This is important so as to dispel any fears that the former partner would not be biased.

The respondent’s argument that no real bias had been proved and that the 3rd respondent was professional and experienced is really irrelevant to the enquiry. In the case of Leopard Rock V Wallen Construction 1994 (1) ZLR 55 the court stated that:

“one does not enquire into the mind of the person challenged…. What is important is what it creates in the mind of a reasonable person.”

The 3rd respondent could have been impartial as could be but what could a reasonable man have thought? Would he not have formed the impression that there would be bias. The disciplinary authority was appointed by one of the parties he, the disciplinary authority worked as partners with Mr Matsikidze whose firm was representing the respondents.

Further, this relationship was not disclosed. The facts would in my opinion create the impression that justice would not be done and the disciplinary authority would be biased in favor of his former partner’s client otherwise why would he fail to disclose the previous relationship. One can easily conclude that the disciplinary authority deliberately failed to disclose this fact so that his relationship with Mr Matsikidze would not be exposed so as to allow him to unfairly be biased in favor of his former partner’s client. It is my considered view thereof that the test for bias was satisfied. The apprehension for bias was neither whimsical nor morbid. There was a reasonable suspicion of bias.

The court having found that there was a reasonable fear for bias, it upheld the application for review on that basis alone and had no need to consider the other grounds for review.

DONDO AND PARTNERS LAEGAL PRACTITIONERS – APPLICANTS

MATSIKIDZE	ATTORNEYS	AT	LAW	LEGAL	PRACTITIONERS	- RESPONDENTS