Justine Bande v Zimbabwe Parks and Wildlife Management Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/47/2023
HARARE, 21 NOVEMBER 2022 &
CASE NO LC/H/575/22
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IN THE LABOUR COURT OF ZIMBABWE	   	JUDGMENT NO LC/H/47/2023

HARARE, 21 NOVEMBER  2022 &			   	CASE NO LC/H/575/22

23 FEBRUARY  2023

In the matter between:-

JUSTINE BANDE							APPLICANT

ZIMBABWE PARKS AND WILDLIFE 				RESPONDENT

MANAGEMENT AUTHORITY

Before the Honourable Kudya J

For the Applicant			Mauwa (Legal Practitioner)

For the Respondent			R. Makuva  (Legal Officer)

KUDYA, J:

This is an application for the review of the respondent’s disciplinary committee decision.  Applicant raises 3 issues for review.  The first one is that he was wrongly charged under the Tourism Industry Code instead of under the Procurement Act.  Secondly he says that the Chairman did not have jurisdiction to hear his matter as he was biased on account of the fact that he was husband to applicant’s superior.   Thirdly he argues that the complainant in the matter was his immediate supervisor and signatory to the procurement process now under challenge so he gave a biased account of the events as he was an interested party. Each of the review grounds is dealt with below.

Use of wrong Code

It is settled that the prerogative to discipline an employee lies with the employer.  In the case at hand the respondent says it chose to proceed under the Tourism Industry Code of conduct as it falls under that area and also because the Procurement Act does not have an attendant code of conduct under which it should have charged the applicant.  The reasoning to that extent is well founded and can not be faulted by the court.  The ground being without merit should fail.

Chairperson’s bias

It is settled law that bias allegations should not be imagined or fanciful.  See Nhari v Z.A.B.G.  SC/6/20. A reading of the record shows clearly that applicant was under the chairperson’s  wife’s management and that she did sign some of the documents which were subject of the enquiry that gave rise to the misconduct allegation.  The critical question to be argued is whether justice was seen to be done where the chairperson sat on a case which directly affected his spouse.  The court’s view is that the perception that the chairperson could have been conflicted can not be said to be without foundation. Granted the organisation might be small but there was need for a clearly impartial arbitrator to sit over the proceedings.  Since that was not done the applicant’s argument is therefore sustainable.  The second ground being well founded should succeed.

Complainant’s  coloured evidence

It is settled that it is not proper that a man sits as judge in his own case. The record shows clearly that Jura had an interest in the matter since he was a signatory to the process complained about.  It was thus irregular for the guilt of the applicant to be founded based on the evidence of a complainant who had an interest in the matter. To that extent the 3rd ground is merited.  It should thus succeed.   It is settled that a person should only escape if he is not guilty not to escape on the basis of technicalities.  It is therefore imperative that correct due process be followed in the matter so that it becomes clear whether or not the applicant was guilty.  In that respect the review succeeds to the extent of remitting the matter denovo to be dealt with properly.

IT IS ORDERED THAT

Application for review being partially with merit it be and hereby succeeds. The proceedings leading to the applicants guilt and dismissal are hereby set aside and in their stead the matter is remitted to the employer to be heard afresh before an impartial umpire and with non coloured evidence.  Each party bears own costs.

Mauwa and Associates, Applicant’s Legal Practitioners