Glen Ray Landsberg v Advocate Samuel Banda and Zebra Waterproofing and Paint Centre

### Preamble
IN THE LABOUR COURT OF
ZIMBABWE HELD AT HARARE 15
JANUARY 2025
JUDGMENT NO.
LC/H/57/25 CASE NO.
LC/H/1071/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 15 JANUARY 2025

AND 20 FEBRUARY 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/57/25 CASE NO. LC/H/1071/24

GLEN RAY LANDSBERG	APPLICANT AND

ADVOCATE SAMUEL BANDA	FIRST RESPONDENT ZEBRA WATERPROOFING AND

PAINT CENTRE	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Advocate J. Wood

For Second Respondent	Mr. P. Dube No Appearance for First Respondent.

MURASI J.,

This an application for leave to appeal to the Supreme Court in terms of section 92 F (2) of the Labour Act, (Chapter 28:01) and Rule 43 of the Labour Court Rules, 2017. This Court rendered judgment in Case Number LC/H/364/24 on 6 August 2024. Applicant is dissatisfied with the decision. Hence the present application. Applicant’s prospective grounds of appeal are as follows:

The Court a quo erred at law in failing to find that by inviting the Appellant to appear before a Disciplinary Committee, the 2nd Respondent had exercised its discretion on the constitution of the Disciplinary Authority and had elected that the hearing would be done by a Disciplinary Committee.

In so failing, the Court a quo erred at law and thereby misdirected itself in dismissing the review on the basis that the disciplinary authority was properly constituted when the Appellant did not appear before a Disciplinary Committee.

The Court a quo erred and misdirected itself in failing to find that a conflict of interest arose in the matter as a result of the relationship between the 1st and 2nd Respondent.

The Court a quo erred in finding that it was proper that the 1st Respondent presided over the proceedings in the circumstances.

The Court a quo erred and misdirected itself at law in failing to find that by failing to comply with the Court Order of Musariri J under Case No. LCH965/23, the issue of the Appellant’s reinstatement had not been resolved and as such, the disciplinary hearing should not have proceeded.

The Court a quo erred in finding that reinstatement was bona fide and proper in the circumstances.

Preliminary Issues

Advocate Wood stated that she intended to apply for a postponement because of certain procedural issues which Applicant had failed to comply with. She indicated to the Court that as at that date, Applicant had filed an application for reinstatement which was still in its infancy. The Court inquired of Mr. Dube whether Second Respondent was not ready to proceed with the matter on merits as it stood. He indicated that he would need to consult before giving Second Respondent’s position. After a brief adjournment, Mr. Dube informed the Court the Second Respondent was able to proceed with the matter on the merits. Mr. Dube also informed the Court that the second preliminary point which had been raised in the papers was being abandoned.

THE MERITS

Applicant’s Submissions

Advocate Wood stated that she had three points she wanted to emphasize on. It was argued that the first point related to the appointment of a Disciplinary Authority instead of a Disciplinary Committee. It was stated that the case law referred was distinguishable in that in the present case, the employer had indicated to the Applicant that he was to appear before a Disciplinary Committee. It was added that such appearance before a Disciplinary Committee would have allowed the Applicant to bring his representatives as opposed to the appearance before the Disciplinary Authority. Advocate Wood further submitted that the person who acted as the Disciplinary Authority did not deal with matters at the workplace and was therefore disqualified from presiding.

Advocate Wood further submitted that the First Respondent was appearing as the Second Respondent’s representative as he had been appointed by Mr. Sinyoro who was Second Respondent’s legal practitioner and that was why First Respondent was biased. She averred that First Respondent was once employed by Mr. Sinyoro and there must be a suspicion that he would be influenced by Mr. Sinyoro and that the situation created a reasonable apprehension of bias. Advocate Wood further submitted that First Respondent could subconsciously be influenced by Mr. Sinyoro in wanting to please him. Advocate Wood referred to the Leopards Rock case. She argued that there has to be a real possibility of bias as in this case as the First Respondent had not applied his mind to the charges levelled against the Applicant.

As far as the issue of reinstatement of the Applicant was concerned, it was submitted that this reinstatement came about when there were allegations of theft being levelled against the Applicant. It was argued that the bail conditions showed that Applicant was not to interfere with witnesses

and that Applicant had found the situation intolerable. Advocate Wood submitted that it was not a genuine attempt to reinstate the Applicant. Asked by the Court whether the Order for reinstatement was not by consent, she replied that it was by consent. She further stated that Mr. Sinyoro had indicated that Applicant could retire or resign which amounted to constructive dismissal showing that the reinstatement was not bona fide.

Second Respondent’s Submissions

In response, Mr. Dube stated that when regard was had to Applicant’s prospective grounds of appeal, particularly the one alleging that there was a pending matter, Applicant had failed to demonstrate what pending proceedings were pending before the Labour Court. He added that the preferment of criminal charges could not have affected the prosecution of misconduct charges arising from the employment relationship. He added that the Order of Justice Musariri was by consent and had the effect of reinstating the Applicant. Mr. Dube stated that there were no other proceedings pending and therefore the prospective ground of appeal was devoid of merit.

As to the second prospective ground of appeal, Mr. Dube submitted that the Second Respondent was permitted by the law to appoint a disciplinary authority and this is what happened. He also referred to the minutes of the hearing at pages 38 to 40 of the record and submitted that Applicant had not objected to the jurisdiction of the First Respondent in those proceedings. He argued that, by conduct, Applicant had waived his rights in this respect. He added that the Applicant could not seek to resile and seek to point out that it was wrong to have First Respondent preside over the matter when he had not objected at the crucial time.

In respect of the third prospective ground of appeal, Mr. Dube submitted First Respondent was appointed by the Second Respondent. The Applicant had failed in the court a quo to establish facts leading to the conclusion of the existence of bias. He added that First Respondent had left the employment in Mr. Sinyoro’s practice and joined a law firm by the name of Mambara and Partners. He submitted that First Respondent had also left the latter firm and joined the Advocates’ Chambers at Tanganyika House and was thus operating independently. He referred to S v Mawadze SC 46/24 and stated that the subconscious bias referred to by Advocate Wood only arises from instances where an authority cannot act independently. He further argued that First Respondent, as an Advocate, could not be swayed to compromise his ethical values. He concluded by stating that the application for leave to appeal to the Supreme Court did not have prospects of success and should accordingly be dismissed.

ANALYSIS

The Supreme Court has dealt with the requirements of appeals which emanate from this Court to that Court in many cases. It is a truism that, in terms of section 92 F (2), such appeals should raise points of law. This was reiterated by MAKARAU JA (as she then was) in Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 11/20 where the following was stated at page 7 of the cyclostyle judgment:

“It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law has said in

other binding cases on the issue to be determined, presumably in matters where the court has discretion, or questions what the law is on the specific issue or issues raised in the appeal or attacks the decision a quo on the facts as being irrational. The remit of this court in determining appeals from the court a quoi is therefore fairly narrow.

Put differently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of law on the matter in dispute or, if based on the facts of the matter, to set aside the decision as being irrational. It cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.”

I should also hasten to add that the peculiar facts of this case are that Applicant’s legal practitioners appeared before the First Respondent and made an application for postponement based solely on the fact that the matter was pending before the Labour Court. The First Respondent ruled on the matter and declined to postpone the hearing. Applicant’s legal practitioners abandoned the proceedings and the matter was heard in their absence. Most of the issues that were raised before the court a quo and in this application were not placed before the First Respondent for comment or adjudication. Precedent has dealt with such situations on many occasions. In Zesa Enterprises (Pvt) Limited v Stevawo SC 6/16, MALABA DCJ (as he then was) had this to say at page 5:

“Where a person willfully defaults from attending a disciplinary hearing, he or she would have waived the right to challenge the conduct of the proceedings. The rationale was aptly and eloquently captured by ZIYAMBI JA in David Moyo v Rural Electrification Agency SC 4/14..”

In Pacprint (Pvt) Ltd v Kumbula SC 67/17, MAVANGIRA AJA (as she then was) took the point further and stated thus:

“In casu the mere boycotting of their hearings by the respondents disentitled them from challenging the outcomes of the hearings or any procedure that may have been adopted during the hearings. By their non-appearance the respondents waived the right to defend themselves. On the other hand, by bringing the application for review they sought to defend themselves. In effect this translates to approbating and reprobating at the same time. The law does not countenance this prevarication. The two positions or stances are mutually exclusive and cannot co-exist.

The respondents having decided not to attend the disciplinary hearings and defend themselves, the court a quo ought not to have granted their application for review. By refusing to attend the hearings the respondents waived their opportunity to assert their tights. They thereby forfeited their tight to challenge the findings and procedures of the disciplinary committees.”

I should also mention that as pointed out in the Zimbabwe Institute of Management Case (supra), the grounds of appeal must raise points of law. It is not enough to show a general disgruntlement with the findings of fact made by the court a quo, the appellant must show how

that misdirection came about. This was confirmed in Zimbabwe Open University v Ndekwere

SC 52/19 thus:

“A ground of appeal which attacks findings of fact must, therefore, not only allege that the lower court misdirected itself on the facts but must go further and show how that misdirection came about. Merely alleging a misdirection without further substantiation would not be enough as the attack would remain one against a factual finding. In other words, in alleging a misdirection on the facts, the ground of appeal must also show in what way those findings of fact are irrational.”

I now turn to the first prospective ground of appeal. It attacks the finding by the court a quo that the Second Respondent had exercised its discretion in appointing the Disciplinary Authority. What is missing is the fact that the Court a quo based its findings on a Supreme Court judgment. The fact of whether the Second Respondent had indeed issued a letter stating that there would be a Disciplinary Committee is a factual finding. Such issue is confirmed in the case of The Trustees of the Leonard Cheshire Home Zimbabwe Central Trust v Robert Chiite & Others S-24-15 where MALABA DCJ (as he then was) stated thus:

“Once a question requires a court to consider whether certain facts have been established in order to answer it, the court is to determine a question of fact.”

No point of law arises from this ground of appeal. In any event, Applicant does not seek to distinguish the case law cited by the Court a quo supporting its findings. There are therefore no prospects of success on this ground of appeal.

The second ground of appeal raises the same issue as the first ground of appeal where it avers that the Court a quo misdirected itself in dismissing the review on the basis that the disciplinary authority was properly constituted when the Applicant did not appear before a Disciplinary Committee. Elsewhere in this judgment I raised the issue of non-attendance at the hearing after the legal practitioners had abandoned the proceedings. These issues should have been properly raised in that forum. They were not. The consequences in the Pacprint Case should surely visit the Applicant.

The third ground of appeal is equally afflicted by such non-attendance by the Applicant. Advocate Wood went to some lengths to address the issue. These are factual issues which were supposed to have been brought and ventilated by the First Respondent. The Applicant would have, in that forum, applied for the recusal of the First Respondent. This was a missed opportunity. What Applicant intends to do is to have the Supreme Court sit as a court of first instance and evaluate whether First Respondent was indeed biased against the Applicant without any evidence having been produced before the First Respondent and the Court a quo. It was stated in S.T. Chitanda v United Touring Co. Ltd SC 7/99 that:

“If the argument was not raised before the Tribunal, the Tribunal cannot be faulted for not dealing with it. It cannot be a ground of appeal from the Tribunal that it did not deal with a matter it was not asked to deal with.”

This Court is of the view that there are no prospects of success on this ground of appeal.

The fourth ground is vague. It only avers that the Court a quo erred in finding that it was proper that the 1st Respondent presided over the proceedings in the circumstances. What point of law arises from this ground of appeal? None. I believe that it requires no further attention from this Court.

The fifth ground of appeal is evidence of a failure to appreciate the facts and the law. Firstly, the Order granted by Justice Musariri was by consent. Applicant and his legal practitioners participated in the formulation of the Order. The Order reinstated the Applicant. That is the factual issue that arises from those proceedings. The question as to whether it was bona fide or not does not arise as the Applicant consented to its being granted. The second issue is that once Justice Musariri issued that Order, he became functus officio. There was no pending matter before him. It is trite in this jurisdiction and other civilized jurisdictions that once a court has pronounced itself on a dispute between parties, its work is done. It cannot re-visit the matter without any new application being placed before that court. It is my view that this position is trite. The Supreme Court will not depart from this well-known legal principle. The suggestion that the Court was still bound to deal with the issue of damages in lieu of reinstatement is a non-issue. Such proceedings are clearly FRESH proceedings which are dependent on a litigant filing an application for quantification. Without such fresh application, there cannot be a matter pending in the Court pursuant to an Order issued by that Court. There is no merit in this ground of appeal.

The last ground of appeal is clearly meaningless, and the Court will not devote its time in addressing it. It is just a statement which does not raise anything for the Supreme Court to determine.

It is thus my view that the application for leave to appeal is devoid of merit and ought to be dismissed.

The following Order is appropriate:

The application for leave to appeal to the Supreme Court, being devoid of merit, is hereby dismissed.

Applicant to meet Second Respondent’s costs.

Venturas and Samukange-	Applicant’s legal practitioners

Dube, Manikai and Hwacha-	Second Respondent’s legal practitioners.