Elliot Kasu v Zimbabwe Broadcasting Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/656/2016
HARARE, 7 JUNE 2016 &
CASE NO LC/H/714/2015
21 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/656/2016

HARARE, 7 JUNE 2016 &					         CASE NO LC/H/714/2015

21 OCTOBER 2016

In the matter between

RETIRED BRIGADIER GENERAL					APPELLANT

ELLIOT KASU

Versus

ZIMBABWE BROADCASTING						RESPONDENT

CORPORATION

Before the Honourable Manyangadze J

For the Appellant	P Kawonde  (Legal Practitioner)

For the Respondent	Ms R Magundani (Legal Practitioner)

MANYANGADZE J:

In a judgment handed down on 12 May 2015 Justice Smith (Retired), found the appellant guilty of various acts of misconduct, in terms of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006. The retired judge was the Hearing Officer in a disciplinary hearing convened by the respondent, to determine various allegations of misconduct levelled against the appellant, during his tenure as General Manager Finance, Zimbabwe Broadcasting Holdings (Pvt) Ltd. Consequent to his conviction on the charges of misconduct, the respondent’s Board of Directors terminated the appellant’s contract of employment.

Aggrieved by his dismissal, he noted an appeal with this court. At the hearing of the appeal, the appellant signed a point in limine which prevented the hearing from proceeding onto the merits of the appeal.

The point in limine was to the effect that:

Certain documents are missing from the record of disciplinary proceedings conducted by the Hearing Officer on 12 May 2015.

The absence of these documents raises the question as to whether or not the Hearing Officer who conducted the disciplinary proceedings took into account those documents in his determination.

The absence of these documents has the effect of vitiating the disciplinary proceedings, which should accordingly be set aside.

The appellant referred the court to the case of S v Zuze 2013 (2) ZLR 25, wherein it was held that a judicial officer becomes functus officio on conducting the proceedings before him. The appellant pointed out that such a judicial officer would be in no position to supplement or subtract from the record he/she would have produced in the course of the hearing concerned.

The respondent, on the other hand, pointed out that the missing documents could have simply been a clerical or administrative issue. The transmission of the record from the Hearing Officer’s offices was done by his secretary. She possibly omitted the documents in question. Both parties are in fact in possession of copies of the missing documents. A schedule of the same was submitted to this court.

The respondent contended that it was misleading to say that the Hearing Officer did not take into account these documents when he came up with his determination. One would be speculating to so hold.

As I see it, this is a matter in which the appellant has taken the view that the documents in question did not form part of the record of the Hearing Officer. Mr Kuwonde, for the appellant, told the court, during oral submissions:

“What the Hearing Officer has created is to require this court to answer this question; ‘Did he at the time of the compilation of his judgment, take into account the missing documents – whether his judgment took into account the missing documents?’”

The appellant averred that the absence of the documents vitiates the disciplinary proceedings, which should be set aside on that basis alone.

Ms Magundani, who appeared for the respondent, contended that the Hearing Officer’s judgment shows that he took into account the said documents, which must certainly have been before him when he made his findings. Any other view would be speculative. Submitted Ms Magundani:

“At this point, would be misleading to say that Justice Smith does not have those documents. We can sit here and speculate whether or not the judge considered those documents. In his judgment, Justice Smith  makes reference to certain documents not in this record today. It is therefore clear those documents were considered …. It is glaringly obvious that those documents were considered, from the judgment.”

After carefully listening to argument from both Counsel, the court was of the view that it was not necessary for it to go into the Hearing Officer’s judgment, and examine it vis a vis the schedule of the missing documents that was submitted. That task would, in my view, be tantamount to delving into the appeal before the merits thereof are argued by the parties. The nature of the appellant’s point in limine is such that it calls upon the court to determine whether the Hearing Officer considered evidence he should not have considered. The court cannot do that at this stage of the proceedings. The appellant is effectively asking the court to allow the appeal before it is argued.

The question as to whether the Hearing Officer took into account evidence he should not have taken into account, or conversely, did not take into account evidence he should have taken into account, is a question that can be argued at the hearing of the appeal. This is one of those factors an appellate court looks into in considering whether or not to interfere with a trial tribunal’s judgment. The factors an appellate court considers were succinctly outlined in Barros & Anor v Chimphonda 1999 (1) ZLLR 58 (S):

“The attack upon the determination of the learned judge that there were no special circumstances for preferring the second purchaser above the first- one which clearly involved the exercise of a judicial discretion- may only be interfered with on limited grounds. See Farmers’ Co-operative Society (Reg.) v Berry 1912 AD 343 at 350. These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.” (underlining added)

In casu, the appellant is asking the court to consider the above-cited factors, or at least some of them, before the appeal is fully and comprehensively argued. The question that the appellant has raised, in my view, cannot properly be the basis for disposing of this matter, at this stage. It bears the complexion of a substantive argument, and not that of a point in limine. It raises issues of substance that should be argued at the appeal hearing.

In the circumstances, I find no merit in the point in limine.

In the result, it is ordered that:

The point in limine be and is hereby dismissed.

The Registrar shall set down the appeal for hearing at the next available date.

Costs shall be in the cause.

Kawonde Legal Services, appellant’s legal practitioners

Scanlen & Holderness, respondent’s legal practitioners