Gabriel Dizha v Zimbabwe Leaf Tobacco

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/163/2016
HARARE, 19 FEBRUARY 2016 &
18 MARCH 2016
CASE NO LC/H/235/2015
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/163/2016

HARARE, 19 FEBRUARY 2016 &				         CASE NO LC/H/235/2015

18 MARCH 2016

In the matter between

GABRIEL DIZHA								APPELLANT

Versus

ZIMBABWE LEAF TOBACCO						RESPONDENT

Before the Honourable F C Maxwell J

The Appellant in Person

For the Respondent	S Sadomba (Legal Practitioner)

MAXWELL J:

This is an appeal against the determination of the National Employment Council for the Tobacco Industry (“NECTI”) dated 6 March 2015.

The appellant was dismissed from the respondent’s employment with effect from 21 April 2011. He noted an appeal to the Works Council in October 2013. The Works Council dismissed the appeal on the basis that it was out of time. The appellant then appealed to NECTI which also dismissed the appeal for the same reason. The appellant approached this court seeking condonation of late noting of appeal at the Works Council. This court declined jurisdiction and dismissed the application.

On 28 February 2014 the appellant approached the Works Council seeking condonation. The application was not successful. The appellant appealed to the Grievance and Disciplinary Committee. On 6 March 2015 the Designated Agent for NECTI advised the appellant that the committee would not hear the matter if condonation of late noting of appeal has not been granted by the appropriate authority. On 16 March 2015 the appellant noted the current appeal. The grounds of appeal are:

The Honourable NEC erred and misdirected itself both at law and fact as an appellate tribunal by failing to exercise its discretion clothed on it by the S I 322 of 1996 (Tobacco industry Code of Conduct) hereinafter referred to as the “Code of Conduct” since it did not bother to the (sic) look into the merits of the case which was before it.

The Honourable NEC grossly erred and misdirected itself both at law and fact by failing to provide minutes of its hearing and let alone reasons for its decision.

The NEC erred and grossly misdirected itself both at law and fact by failing to take into account of (sic) the fact that the Disciplinary Hearing Committee violated section 1 (1) (a) of Code of Conduct which require that a hearing be held by a properly Constituted Committee for the decision to be binding.

The Honourable NEC further erred and grossly misdirected itself both at law and fact by failing to take into account of (sic) the fact that the respondent violated section 16 (b) of the Code of Conduct by suspending the appellant for more than ten (10) working days.

The NEC also erred and grossly misdirected itself both at law and fact by failing to consider that two contrasting figures were reported against the respondent.

The honourable NEC further erred and grossly misdirected itself both at law and fact by failing to take into cognisance of the fact that the respondent’s failure to attend the hearing at the material time was due to the bail conditions set by the Criminal Court on him.

The NEC grossly erred and misdirected itself both at law and fact by failing to take into consideration of (sic) the fact that the respondent through its conduct had violated section 22 (3) of the Code of Conduct which does not permit dismissal of an employee solely because he is absent after having been remanded in custody or held for questioning by the police as was in casu.

The NEC also grossly erred and misdirected itself both at law and fact by failing to take into account that the respondent in holding a hearing in the absence of the appellant breached the audi alteram partem rule which require both sides to a dispute to be heard before a determination is made.

The appellant prayed for the substitution of the NEC’s decision of 6 March 2015 with an order allowing the respondent (sic) file its appeal out of time. The prayer obviously is wrongly worded as the respondent is not the one seeking to appeal.

In response the respondent pointed out that when the appellant appealed to the NEC on 28 August 2013 the matter had already prescribed and it is incompetent for him to be applying for condonation now. The respondent also stated that the appellant had confessed to abusing his position by stealing money from the respondent therefore his prospects of success on the merits are non-existent. Further, the appellant had been convicted of theft of trust property by the Magistrates Court and was sentenced to a term of imprisonment. It is incomprehensible for the appellant to challenge his dismissal on charges of theft, fraud, embezzlement which require proof on a balance of probability when he was convicted where proof beyond a reasonable doubt was required. The respondent also pointed out that the grounds of appeal raise review issues and it is incompetent for the appellant to raise review issues in an appeal.

I find merit in the respondent’s submissions. On being asked by the court, the appellant confirmed that he was aggrieved with procedural irregularities. Procedural irregularities are dealt with on review, not on appeal. See National Foods Ltd v Kare & Ors 1990 (1) ZLR 223. As stated in Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa 4th ed at page 932:

“Where the reason for wanting judgment to be set aside is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where however, the real grievance is against the method of trial, it is proper to bring the case on review.”

See also Fikilini v Attorney General 1990 (1) ZLR 105. The appellant’s appeal is therefore improper and cannot succeed.

Consequently I order as follows:

The appeal be and is hereby struck off the roll for being improperly before the court. The appellant seeks to challenge procedural issues.

Gill, Godlonton & Gerrans, respondent’s legal practitioners