Kevin Maposa v CABS

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/287/23
HELD AT HARARE 16TH JUNE 2023 AND 29 SEPTEMBER 2023
CASE NO. LC/H/82/23
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/287/23

HELD AT HARARE 16TH JUNE 2023 AND 29 SEPTEMBER 2023

In the matter between

KEVIN MAPOSA

And

CASE NO. LC/H/82/23

APPLICANT

CABS	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPLICANT	: ADVOCATE B. MAGOGO

FOR THE RESPONDENT :A.K.MAGUCHU(LEGAL PRACTITIONER0

MAKAMURE J.

This is a judgment in a preliminary issue raised on behalf of the respondent before an application for review could be argued. The preliminary issue was to the effect that the matter is now moot because it was overtaken by events. The preliminary issue is vehemently opposed.

Background

It is necessary to narrate the background of this matter in order to deal with the question of mootness which has been raised. The background is as follows.

On the 28th of November 2022 the applicant was invited for a disciplinary hearing .He was alleged to have violated Part VI Group 4 of the National Employment Council for the Commercial Sector Employment Code of Conduct and Grievance Procedures (NECCS)( the code). He appeared for the hearing on 7th December 2022 before Designated Officer, one Ndingindi (Ndingindi). On 21st December 2022 Ndingindi made findings and convicted the

applicant and penalized the applicant with dismissal. On the 23rd of December 2022 Ndingindi wrote the applicant withdrawing his letter of the 21st of December .On that same date the 23rd of December one Zvokuomba(Zvokuomba) , another Designated Officer of the respondent, invited the applicant to appear before him on the 29th of December 2022.This was done. On the 30th of December 2022 Zvokuomba found the applicant guilty of misconduct on the basis of the proceedings that were conducted before Ndingindi. This is the procedure that aggrieved the applicant leading him to file an application for review with this Court.

Before this Court

From argument on behalf of both parties it appears that , both parties are agreed that the decision which was made by Ndingindi is still extant . Mr Maguchu who appeared on behalf of the respondent is the view that ,that decision is now moot because the applicant will face fresh disciplinary proceedings before the employer. Mr Magogo on the other hand submits that because the decision by Ndingindi of the 21st of December is still extant so is Zvokuomba’s decision of the 30th of December .The application for review is therefore with respect to proceedings before both designated officers .Mr Magogo proceeded to refer the Court to the provisions of the applicable code.

The Law

Provisions of the Code

Paragraph 5 of the code provides as follows:

‘If, after having conducted the investigation referred to in Paragraph 4, the Designated Officer is :-

5.1…

5.2 satisfied that the employee has committed an offence he may impose the appropriate penalty in relation to that offence as set out in Part IV and Part V of this Code provided that, if the appropriate penalty is dismissal, the Designated Officer may suspend the employee with or without pay and shall submit all the evidence , in whatever form, assembled by him together with the summary referred to in

Paragraph4.6 to the employer for his decision.’

The Act

S92EE (1) of the Labour Act Chapter 28:01(the Act)provides for review of proceedings by this Court. Where jurisdiction and or procedural irregularities are alleged , the course of action to take is to have the proceedings reviewed.

Analysis

It is trite that employment codes are drafted by lay persons who may not be legally trained . Equally tribunals at workplaces are presided over by laypersons who may not appreciate the consequences of the steps they take in implementing provisions of the relevant employment codes. In the interests of justice my view is that this matter cannot be resolved on the basis of the preliminary issue. It is undesirable. Dalny Mine v Banda 1999(1) ZLR 220. There has to be clarity on what , in the present matter, the employer ought to have done after realizing that Ndingindi should not have proceeded to impose the penalty of dismissal. In my view therefore the issue cannot be regarded as moot where a decision by a court of law has not been made with respect to how the employer ,using domestic remedies, ought to have proceeded.

Conclusion

In Francis Bere v Judicial Service Commission and Six Others SC1/22 the Supreme Court quoting with approval from Thokozani Khupe & Anor v Parliament of Zimbabwe & Others SC 1/22 had this to say on the doctrine of mootness:

‘ A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed

circumstances the Court’s jurisdiction ceases and the case becomes moot… The mere fact that the matter is moot does not constitute an absolute bar to a court to hear a matter. Whilst a matter may be moot as between parties, that does not without more render it unjustifiable. The court retains a discretion to hear a moot case where it is in the interests of justice to do so.’

I respectfully associate myself with what the Supreme Court said above. While I hold the view that the matter is not moot, I also think that in the interests of justice the review matter ought to be heard.

In view of the foregoing I find that there is no merit in the preliminary issue raised.

Accordingly ,it is ordered that the preliminary issue be and is hereby dismissed.

RUZVIDZO & MAHLANGU, APPLICANT”S LEGAL PRACTITIONERS. MAGUCHU & MUCHADA, RESPONDENT’S LEGAL PRACTITIONERS/.