Hlupeko Moyo v National Employment Council for the Zimbabwe Energy Industry & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 18 JANUARY, 2023 AND 30 MARCH, 2023
JUDGMENT NO. LC/H/91/23
CASE NO. LC/H/765/22
In the matter between:-
HLUPEKO MOYO Applicant
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 18 JANUARY,
2023 AND 30 MARCH, 2023

JUDGMENT NO. LC/H/91/23
CASE NO. LC/H/765/22

In the matter between:-

HLUPEKO MOYO
Applicant

Versus

NATIONAL EMPLOYEMENT COUNCIL FOR THE
ZIMBABWE ENERGY INDUSTRY
1ST
Respondent
2nd
Respondent

THOMAS MASVINGWE N.O.

Before The Honourable L. Hove, Judge:

For Applicant : I. Goto (Legal Practitioner)
: A. Mugandiwa (Legal
For 1st Respondent Practitioner)
For 2nd
Respondent : In person

HOVE J:

This is an application to review the disciplinary proceedings conducted against the applicant which proceedings, the applicant refused to participate in.

The application is premised on three grounds which are briefly stated hereunder: a) The suspension letter was improper as it failed to state reasons and grounds of suspension

b) Conflict of interest


c) Failure by the disciplinary committee to accord the applicant the right to Legal representation.


At the hearing of the matter, the respondent raised two preliminary points. The parties agreed to deal with the preliminary points first before proceeding into the merits of the application for review depending on the court’s findings on the preliminary issues.

The first preliminary point raised was;

Whether or not the applicant is estopped from challenging, on review the disciplinary proceedings when he elected not to participate in the disciplinary proceedings.

It is alleged by the respondent that the applicant chose not to participate in the disciplinary hearing after his application for a postponement was dismissed.

The record will show that on the 1st hearing date, the applicant applied for 10 working days to enable him to seek legal representation. This application was not granted but instead, the applicant was given until the 21st of July 2022 to find Legal representation. On the 22nd of July 2022 the applicant appeared and made another application for a postponement on the basis that he needed to secure the services of a Legal practitioner of his choice. This 2nd application did not find favor with the disciplinary authority which dismissed the application and directed that the matter should proceed.

The applicant continued to sit in during the proceedings but refused to take part in the proceedings in spite of the committee inviting him to participate or to comment on the proceedings.

The respondent submitted that by deliberately choosing not to participate, not to controvert the National Employment Council’s case and not to present a defense to the charge during the proceedings, the applicant waived his right to challenge the propriety of the proceedings. The issues that he now seeks to raise with the Labour Court, sitting as an appellate court, were not considered before the tribunal of first instance and they cannot now be raised for the first time during the application for review. The appropriateness of the suspension letter, the alleged conflict of interest and the alleged denial of legal representation cannot be appropriately raised before an appellate court when they were not argued before the court of first instance.

It was further submitted that the applicant is seeking to foist original jurisdiction on the Labour Court in respect of matters he could have motivated and ventilated before the disciplinary authority to enable it to decide those issues before bringing this review application. The Labour Court does not have the original jurisdiction to hear disputes as a court of first instance. This is what the Supreme Court frowned upon in the case of ANZ Grindlay Bank (Zim) (Pvt) Ltd v Hungwe 1994 (2) ZLR 1(S). The learned judge of appeal stated as follows,

> “I venture to say it would be highly irregular if not unfair and dangerous for an appeal court to assume the jurisdiction of a court of first instance, and pronounce on issues which are properly cognizable in a court of first instance, but have not been canvassed before that court. To do so would be to deprive the losing party of the right to appeal should our determination be wrong.”

The same reasoning also carried the day in the case of Total Marketing Zimbabwe (Pvt) Ltd v Pollyamp Investments (Pvt) Ltd 2007 (2) ZLR 60 (5).

This court on review should therefore be slow to usurp the original jurisdiction of statutory tribunals created to resolve disputes in the first instance.

The applicant’s arguments in response were simply that the preliminary point raised was hopeless and meritless and should be dismissed. It was argued that the applicant had not waived his right. He had pleaded with the disciplinary authority to postpone the matter. The committee granted an insufficient period for him to acquire legal services. When he again sought the same indulgence, he was denied the indulgence and he did not wish to participate in the proceeding for fear that it would be interpreted as him having agreed to the flawed process.


The position of law is as was stated in the *Moyo v Rural Electrification Agency SC 4/14*.

In that case the Supreme Court stated as follows;
 “In our view the appellant, by deliberately absenting himself without leave from the hearing waived his right to challenge the conduct of the disciplinary proceedings.”

In casu the appellant was not absent, he sat in but he refused to take part in the proceedings. It is my view that his conduct was akin to that of someone who was not in the hearing. He denied himself the chance to ventilate all his arguments about the alleged notice given him, the alleged refusal to give him the right to legal representations. It is only after he had participated and protested that those issues would now be properly raised before this court. He cannot seek to impose upon this court the jurisdiction enjoyed by the tribunal aquo.

In Emmanuel Masvikeniv National Blood Services Zimbabwe SC 28| 19 on page 7 of the cyclostyle judgment the court of appeal stated that;

“It is common cause that the appellant did not attend the hearing. For that reason, his decision to challenge the composition and appointment of the committee at the appeal stage was no longer available to him.”

The applicant’s decision to ignore and snub the proceedings is akin to that of a litigant who decides to deliberately fail to attend or absents himself. In that unfortunate decision, the applicant waived his right to challenge on review or on appeal the conduct and/or outcome of those proceedings.

See also the case of Dombodzvuku v CMED SC 31/12.

It is clear that an employee who has been extended the opportunity to contest the employer’s case but who decides, deliberately and voluntarily, not to participate waives the right to challenge the proceedings as he refused to participate. This court does not enjoy original jurisdiction similar to that enjoyed by the tribunal aquo.

It is therefore this court’s finding that the first preliminary point is with merit. There is therefore no need to consider the 2nd preliminary point since the 1st preliminary point effectively dispose of the matter.


In the result, it is ordered as follows;

**Order:**

The application is dismissed with each party bearing its own costs.

*Masiya-Sheshe and Associates*, applicant’s legal practitioners *Wintertons*, 1st respondent’s legal practitioners
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