Herbert Admire Makani v The Civil Service Commission

IN THE LABOUR COURT OF ZIMBABWE                          JUDGMENT NO.LC/H/182/24
HARARE,                                                 CASE NO. LC/H/464/21
8 MARCH, 2024 and 22 APRIL, 2024



HERBERT ADMIRE MAKANI                                                   APPELLANT


And


THE CIVIL SERVICE COMMISSION                                            RESPONDENT



Before the Honourable B.T Chivizhe, Judge;

For Appellant – Mr T.A.Mandizvidza with Mr Sheshe (Legal Practitioners)

For Respondent – Mr. L.T.Murahwa- Civil Division of the Attorney-General’s Office



CHIVIZHE, J:




RULING ON POINT IN LIMINE

       The Respondent, through its Notice of Response and Heads of Argument has taken a
point in limine. The Respondent contends that the grounds of appeal do not conform to Rule
19 (1) and more particularly Form LC4 of the Labour Court rules, 2017 in that the grounds
of appeal are not clear and concise. The Respondent further contends that grounds of appeal
4, 7 and 8 amount to narrations of events, they do not amount to grounds of appeal. The
Respondent’s prayer is that the appeal ought to therefore be struck off the roll on this basis.

       In oral submissions, Counsel for the Appellant, contended that it was incumbent upon
the Respondent to indicate clearly why it believes the grounds of appeal as presented are not
clear and concise. Counsel was relying on the authority of Sambaza v Al Shams Global
BVI, Limited Supreme Court judgment No. 399 of 2016. Counsel further submitted, that,
even if the grounds of appeal are indeed inconcise that would not result in the nullification of
the appeal, the Appellant could seek for an amendment of the particular grounds. Counsel
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also submitted that this court,as a court of equity, should not allow itself to be unnecessarily
detained over technical issues, rather it should focus on resolving the real issues between the
parties. Reference was made to the decision in Edmore Mazambane vs International Trading
Company (pvt) ltd where this principle was laid by the superior court.

       Appellant’s Counsel, for completeness however, proceeded to outline in more detail,
the basis of the attack on each particular ground of appeal. He insisted that the grounds of
appeal numbers 1 to 3 were clear and concise. With regards to grounds 4, 7 and 8 he
submitted that these grounds were attacking the determination sought to be impugned on the
basis that the determining authority did not, in assessing the evidence, apply the trite and
established principle in evidence that he who alleges must prove. It was apparent in this case
the Respondent had failed to lead any evidence in support of the charge levelled to the extent
that the disciplinary authority clearly erred and misdirected in convicting Appellant on the
charge. Counsel however, was of the view that Ground of appeal number 7 ought to be
abandoned. In relation to ground number 8, Counsel submitted that the ground was attacking
the determination on the basis of the error and misdirection by the disciplinary authority in
convicting the Appellant in circumstances where the complainant involved was not legally an
employee within the Civil Service Commission.

       Counsel for the Respondent, in reply insisted that the grounds of appeal not being
clear and concise, the notice of appeal was invalid for want of compliance with Form LC4.
The court was urged to strike the matter off the roll. Counsel did not address himself to the
case authority in Edmore Mazambane vs International Tradingf (pvt) ltd referred to by
Appellant’s Counsel. In my considered view that authority is inapplicable in the present
circumstances as the issues being raised relate to statutory provisions that ought to be
complied with by litigants. The issues cannot be regarded as mere technical issues.

       It is indeed settled law in Zimbabwe that a notice of appeal which does not concisely
set the grounds of appeal is invalid and incurably bad. In the matter of Econet Wireless
Private limited versus Trust Co Mobile (Pty) Limited and Another 2013 (2) ZLR 359 (5)
the Supreme Court stated at page 359 F that;

       “Rule 32 of the rules of the Supreme Court, 1964, requires that a notice of appeal
       concisely, “concise” means brief but comprehensive in expression. A notice of appeal
       must comply with the mandatory provisions of the rules, if it does not, it is a nullity
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        and cannot be condoned or amended. A notice of appeal which is unnecessarily prolix
        is not concise.”

It is also settled that where clear and concise grounds of appeal are included in an otherwise
solid notice of appeal cannot be disregarded because there are other defective grounds of
appeal in the same notice of appeal. I refer to the same judgment in Sambaza v Al Shams
Global BVI, Limited Supreme Court judgment No. 399 of 2016 referred to supra.

A reading of Rule 19 of the Labour Court Rules, 2017 and more particularly Form LC4
reveals that grounds of appeal in a notice of appeal before the court must be ‘concise’ and
‘precise’. The grounds of appeal in this matter have been presented as follows;

   1.   The Disciplinary Authority erred in holding that the Appellant was guilty of misconduct without
        specifying which exact conduct constituted a contravention of paragraph 4, and which conduct
        constituted a breach of paragraph 7 of the First Schedule to the Public Service Regulations, 2000.


   2.   The Disciplinary Authority erred in holding that the Appellant was guilty of contravening paragraph 4
        of the First Schedule to the Public Service Regulations in circumstances where no conduct constituting
        improper, threatening or discourteous behaviour was established by way of acceptable evidence against
        him.


   3.   There having been no evidence at all in support of the charge of unbecoming or discourteous behaviour
        against him, the Disciplinary Authority erred in convicting the Appellant of contravening paragraph 7
        of the Public Service Regulations,2000.



   4.   The Disciplinary Committee erred in holding that the complainant (Mrs Nyamuremba) had managed to
        prove that she had been harassed by way of text messages between 2011, and 2013, in circumstances
        where she was unable to establish the material aspects of the charge, particularly, the content of the
        "harassing" messages, and the phone number which had allegedly been used to"harass" her.


   5.   The Disciplinary Authority erred in holding that the alleged failure by the Appellant to meet Mrs.
        Nyamuremba during one of his visits to Bulawayo constituted sexual harassment or discourteous
        conduct on his part.


   6.   The Disciplinary Authority erred in convicting the Appellant on the basis that he had failed to prove his
        innocence, when as a matter of law, the onus was on the Respondent to establish the Appellant's guilty,
        and the Appellant did not carry the burden of proof.


   7.   The Disciplinary Authority erred in holding that the Appellant's participation in Mrs.Nyamuremba's
        exit interview, at the invitation of the Department of Immigration's Human Resources Office
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        constituted conduct to be taken into account in assessing whether the Appellant was guilty of
        contravening paragraphs 4, and 7 of the Public Service Regulations, 2000.


   8.   Mrs. Nyamuremba having resigned prior to the exit interview, the Disciplinary Authority erred in
        holding that she had remained an employee of the Respondent, and was therefore entitled to be taken to
        hospital, or home by the Department of Immigration, and that the Appellant had committed misconduct
        by not organising transport for her in the circumstances.




        There is no doubt that the grounds of appeal as presented are generally neither
‘precise’ nor ‘concise’. They are also inelegantly crafted. It is also apparent that grounds of
appeal numbers 1, 2 and 3 all relate to the same issue. They are attacking the disciplinary
authority findings on the basis that the findings of guilty of breach of paragraphs 4 and 7 of
the First Schedule to the Public Service Regulations were made in the absence of evidence
to support both charges. This essentially means that grounds of appeal numbers 2 and 3 are
repetitive of the same issue raised in ground of appeal number 1. Grounds of appeal numbers
2 and 3 must therefore be struck out.

        Ground of appeal number 4, though inelegantly cast, is essentially attacking the
finding of fact that the complainant was sexually harassed by the Appellant where such
findings are contrary to the evidence as presented.

        Ground of appeal number 5, as submitted by the Respondent, is a narrative of events
that transpired. It simply does not amount to a ground of appeal. It must therefore be struck
out.

        Ground of appeal number 6 is attacking the disciplinary authority’s findings on the
basis that the authority erred and misdirected itself in placing the onus on the Appellant to
prove or establish his innocence on the charges whereas the law is clear that the onus is
placed upon the employer to prove or establish the charges leveled against the employee.

        Ground of appeal number 7 has been withdrawn by the Appellant. The last ground of
appeal is alleging an error and a misdirection on the facts by the disciplinary authority in
concluding that the complainant was still an employee of the Respondent whereas the
complainant was no longer an employee.

        It is clear on the basis of the above therefore that grounds of appeal numbers 2, 3 and
5 must be struck out of the proceedings. Ground of appeal number 7 has also been withdrawn
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by the Appellant himself. This essentially means that the court retains grounds of appeal
numbers 1, 4, 6 and 8.



In the result it is ordered as follows;

    1. The grounds of appeal numbers 2, 3 and 5 not being concise and precise are hereby
        struck out.
    2. Ground of appeal number 7 is withdrawn.
    3. The Registrar is directed to reset the matter for a hearing on the remaining grounds of
        appeal being ground numbers 1, 4, 6 and 8.