George Shonge v City of Harare & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/175/2020
HARARE, 12 MARCH 2020
CASE NO. LC/H/REV/127/19
AND 31 JULY 2020
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/175/2020

HARARE, 12 MARCH 2020 				CASE NO. LC/H/REV/127/19

AND 31 JULY 2020

In the matter between:

GEORGE SHONGE								APPLICANT

versus

CITY OF HARARE								1ST RESPONDENT

CHAIRPERSON OF THE DISCIPLINARY

COMMITTEE (MS B. SIBANDA) N.O.					2ND RESPONDENT

Before The Honourable Makamure J

For the Applicant			Mr J. Mambara (Legal Practitioner)

For the 1st – 2nd Respondents		Mr E. Mushava (Legal Practitioner)

MAKAMURE J:

This is an application for Review. The question of jurisdiction and prescription have been raised on behalf of the applicant. The sole ground for review is therefore:

“Absence of jurisdiction on part of the Disciplinary Committee on the basis that the matter has prescribed.”

The matter is presently still pending before the respondents. This is so as the applicant raised a preliminary issue that the matter had prescribed and could therefore not be heard by the Disciplinary Committee as this would be in violation of s 94 of the Labour Act [Chapter 28:01] (the Act).

The applicant was charged with the offence of fraud in terms of the Harare Municipal undertaking (Employment Code of Conduct) Statutory Instrument 13/2015 as follows:

“Clause 10.5 (f) Fraud – To unlawfully make misrepresentation whether written or oral which misrepresentation cause (sic) actual or potential prejudice to the employer or any person in that: -

On 13th December 2016 you deliberately used Milestone Investments voucher number EXP 213/12/16 to fraudulently pay Mirgod Enterprise US$9 980-00 resulting in City of Harare being prejudiced of US$9 980-00”

The facts of this matter are that on 19 October 2017 an audit report was presented to the respondent (through the Acting Town Clerk) showing that the applicant, on 13 December 2016 had allegedly committed an act of fraud. A recommendation was made in that report to refer the matter for a disciplinary process. This was, as is clear, a report and not charges against the applicant. As of that date, there is not a document on record showing that the applicant himself had been formally charged or asked to make a comment to the auditor’s report.

Charges were eventually raised against him. This was in 2019. The hearing was set for

5 December 2019. That is when he raised the preliminary point that the dispute had prescribed. The Disciplinary Authority deliberated on this issue and dismissed it. The Disciplinary Authority ruled that the prescription in question is raised where a matter has been referred to a Labour Officer. In the present case the matter was at that point in time still being dealt with in terms of the applicable domestic procedures.

When parties appeared before the court the submission on behalf of the applicant was that firstly, a designated officer is equivalent to a labour officer. Secondly, if this matter were to be referred to a designated officer, in terms of the applicable code, the matter would be found to have prescribed.

In other words, the applicant was not looking at what was taking place then but at what would happen should the proceedings be referred to a labour officer. What this means is that the applicant did not even bother to ensure that domestic remedies are completed. That is inappropriate. It is a settled principle in this jurisdiction that domestic remedies be completed before resort is had to outside remedies. Had the question been the propriety of the procedure adopted by the respondents, then the matter would have been properly before the court. In Zikiti v United Bottlers 1998 (1) ZLR 389 it was held that the court had the discretion to withhold jurisdiction where domestic remedies were underway. In the present matter, and as already noted, the applicant does not challenge the jurisdiction of the Disciplinary Authority. He is challenging the possible referral of the matter following an anticipated conviction. This means that as matters stand, there is no decision to refer the matter to either a designated agent or a labour officer. A referral in terms of the domestic remedies only arises after the tribunal in this case the Disciplinary Authority, has made its decision to so refer. At the moment there is no basis for this matter to be before this court. This is so because the Disciplinary Authority has not even concluded, its deliberations. The application for review is not even relevant at this juncture. It should not have even been brought to court at all.

It was submitted on behalf of the respondents that firstly s 94 of the Act specifically refers to matters which are referred to a labour officer. It was further submitted that the provision referred to does not apply to the present matter. Secondly, even if had s 94 applied, which was denied, it should be noted that the 19 of October 2017 is the time when respondents were alerted of the allegations. This therefore marked the beginning of the investigation into the allegations. This date can therefore not be taken to be the date from which prescription started running.

Section 94 of the Act provides that:

“(1) (1) subject to subsection (2) no labour officer shall entertain any dispute or unfair labour

practice unless –

(a) it has been referred to him; or

(b) has otherwise come to his attention: within two years from the date when the dispute or unfair

labour practice first arose.” (My underlining)

The present review application is premised on the fact that the applicant anticipates that he will be convicted. Only after conviction, (that is if he is convicted) will the matter be referred to a designated agent. Section 11.8 (j) of the Collective Bargaining Agreement: Harare Municipal Undertaking (Employment Code of Conduct) Statutory Instrument

13 of 2015 which is the applicable code provides that:

“(j)	Should the employee (or either party) be unhappy with the decision made by the Disciplinary Committee, he or she may refer the matter to a Designated Agent within fourteen (14) working days of receiving communication of the decision.”

There has to be a decision first before a matter can be referred to a Designated Agent. The applicant has applied for review on the basis of what he anticipates will happen after the respondent has convicted him. The application is in the circumstances premature.

It is not known at this point in time as to what the outcome of the proceedings before the respondent will be. Firstly, the court deals with the actual procedural irregularities by a party and not what is anticipated. Secondly, the provisions of The Act are specific. They refer to where and when a matter is referred to a labour officer. The present matter has not been referred to a labour officer. It was still being considered in terms of domestic remedies. This means that the question of a violation of the provisions of section 94 (1) does not arise. In the circumstances there is no basis to allege that the Disciplinary Authority had no jurisdiction.

In view of the foregoing the application has no merit. The application fails.

Accordingly, it is ordered that:

1.	The application for Review be and is hereby dismissed.

2.	There is no order as to costs.

J Mambara & Partners, Applicants Legal Practitioners