Lenon Bhutayi v Upper Manyame Subcatchment Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/9/25
HARARE, 8th JULY, 2024
CASE NO LC/H/292/24
AND 7th JANUARY,2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/9/25 HARARE, 8th JULY, 2024		CASE NO LC/H/292/24 AND 7th JANUARY,2025

LENON BHUTAYI	APPLICANT

AND

UPPER MANYAME SUBCATCHMENT	RESPONDENT COUNCIL

Before the Honourable Chivizhe, Judge:

For Applicant - Ms. V. C. Chidzonga (Legal Practitioner) For Respondent – Mr. K. Mabaudhi (Legal Practitioner)

CHIVIZHE, J:

This is a chamber application for reinstatement of an application made in terms of Rule 46 (b) of the Labour Court Rules, 2017.

BACKGROUND

The Applicant was employed by the Respondent for a period of about six and a half years in the position of Co-ordinator in the Water Resources and compliance department. In December 2020, the Applicant was suspended by the Respondent on allegations of insulting and threatening the Respondent’s Finance Manager. The Applicant was charged with contravening Section 4 (a) of the Labour (National Employment Code of Conduct) Regulations, 2006. He was arraigned for a disciplinary hearing on the 25th of March, 2021 and the Applicant was found guilty and dismissed from the Respondent’s employ. The Applicant aggrieved by the Disciplinary Committees decision then filed an appeal with this court under case number LC/H/20/22. The appeal was dismissed on the 11th of May, 2023. The Applicant sought to appeal against the judgment of this court to the Supreme Court but failed to do so in

time on the basis that he had only become aware of the existence of the judgment in September, 4 months after its pronouncement. The Applicant then filed an application for condonation and extension of time within which to file an application for leave to appeal to the Supreme Court on the 8th of January, 2024 under case number LC/H/13/24. The application under LC/H/13/24 was dismissed by the Registrar on the 23rd of February, 2024 for failure to file heads of argument. The Applicant thus filed the present Application on the 25th of March, 2024, in which he is seeking to be condoned for failure to file heads of argument on time and for reinstatement of the application under LC/H/13/24.

POINT IN LIMINE

The Applicant raised a point in limine that the Board Resolution passed on June 11, 2024, by the Executive Board was invalid because the Executive Board lacked authority to pass such a resolution. The Applicant maintained that only the Council Board could lawfully make such decisions. Citing Section 7(4) of the Water Subcatchment Council Regulations, the Applicant emphasized that the Council Board Chairperson had ample time to convene a special meeting with seven days' notice to pass a proper resolution instead of delegating this responsibility to the Executive Board. Additionally, the Applicant submitted that a letter had been sent to the Chairperson of the Council Board on May 7, 2024, requesting minutes of any meeting authorizing the resolution, but no response was received. The Applicant contended that there was no evidence of a prior resolution by the Council, as of June 11, 2024 when the board resolution was signed. No authority had thus been properly established. For the matter to proceed on the basis of an unratified resolution, so the Applicant argued, would risk a miscarriage of justice if the Council ultimately decided not to ratify it.

The Respondent Counsel in counter submitted that the resolution was valid under the governing framework. He referred to the left column of the calendar for quarterly meetings, which explicitly allowed the Executive Board to deliberate on urgent matters and recommend resolutions for subsequent ratification by the Council Board. The Respondent position was further supported by Section 7(10) and Section 7(12) of the Water Subcatchment Council Regulations, which grants Council the authority to establish any procedures for the efficient operation of council business. The Respondent further relied on Section 33(1) and (2) of the Public Entities Corporate Governance Act, which allows decisions made by a board without a quorum to remain valid for up to 90 days, provided they are ratified within that period. Applying this, the Respondent argued that the Executive Board’s resolution was therefore valid

for 90 days and would be ratified in the Council meeting scheduled for August 9, 2024. The Respondent also submitted that convening a full Council meeting solely for this purpose would be unnecessarily costly and cumbersome, especially given that the matter could be adequately addressed by the Executive Board in the interim. Finally, the Respondent dismissed the Applicant's interpretation of Section 7(4) of the Water Subcatchment Council Regulations, on the basis that the provision only dealt with notices before catchment council meetings, itdid not mandate the Chairperson to convene an extraordinary meeting for every resolution.

The court, after considering submissions made by the parties as well as the evidence tendered dismissed the point in limine. The court was persuaded by Respondent’s arguments. It was this court finding that the Respondent had amply demonstrated that the Executive Board had the authority to deliberate and pass interim resolutions subject to ratification by the Council Board. This was on the basis of the provisions in Section 7(10) and Section 7(12) of the Water Sub-catchment Council Regulations, 2000, which grant the Council the discretion to determine its own procedures for effective governance. Furthermore, Section 33(2) of the Public Entities Corporate Governance Act also allows decisions made by a board to remain valid for up to 90 days, pending ratification, ensuring continuity in operations.

In arriving at this conclusion the court was also alive to the fact that the purpose of the Labour Court is to advance social justice and democracy in the workplace without being unnecessarily hindered by technicalities. This principle was emphasized in Mapondera and 55 others vs Freda Rebecca Gold Mine SC 81/22. It was in light of this position, the court found that the Board Resolution of June 11, 2024, was valid, although it was still pending ratification at the next Council meeting. The Applicant’s point in limine was consequently dismissed.

MERITS

APPLICANTS’ SUBMISSIONS

The Applicant in this application is seeking reinstatement of a matter dismissed by this court. The Applicant contends that good cause has been shown in this case. It being the position of the law that a matter dismissed by the court can be reinstated by a Judge in chambers if good cause is shown. In Electoral Supervisory Commission v Tsvangirai SC 34/03, the court identified three factors relevant to establishing good cause: the duration of the delay, the explanation for the delay, and the prospects of success on the merits. The Applicant submitted

that his delay was occasioned by the ill health of his legal practitioner, as demonstrated by supporting affidavit and medical documentation. Citing Zindi v Zimbabwe Farmers Development Company Ltd HH 309-15, the Applicant argued that “good and sufficient cause” entails providing a bona fide explanation for default and showing a genuine intent to pursue the matter.

The Applicant submitted that the delay was not deliberate but arose from circumstances beyond his control. Relying on Museka v Museka HB 113/08, he argued that the incapacitation of his legal practitioner due to illness cannot be construed as wilful default on his part. He should not therefore be punished for his legal practitioner’s failure to act, as emphasized in The Combined Service Organizations Trust v Mitzi Carruthers & Anor SC 114/23. In that case, the court declined to punish a litigant for a lawyer's lapse, particularly where the delay was not inordinate and prompt action was taken to rectify the anomaly.

The Applicant submits that in the event that the court finds the explanation for delay unacceptable, he must still demonstrate strong prospects of success in the main matter. Reference has been made to Mahachi v Barclays Bank of Zimbabwe SC 6/06, which established this principle. The Applicant argues that his application for condonation of late noting of an application for leave in LC/H/13/24 and his intended appeal have good prospects of success. The delay, he argued, stemmed from the transition to an Integrated Electronic Case Management System, which led to some irregularities in filing procedures, as reflected in his Founding Affidavit.

The Applicant contends that his appeal has strong prospects of success on appeal. He is primarily challenging this court findings on the facts and the law. He submits that the court misdirected itself by failing to properly evaluate the evidence and the applicable legal principles in its judgment. He submits that the court erred by failing to properly assess discrepancies in the evidence presented during the disciplinary proceedings. Specifically, the discrepancies in testimonies of the witnesses. His view is that the court improperly relied on witness testimonies that were inconsistent. For instance, while the charge against the Applicant involved calling the Finance Manager, Mr. Runhare, an “idiot,” Mr. Runhare himself did not confirm this allegation in his testimony. Instead, the term “idiot” was introduced by Mr. Mabhaudhi, who was leading complainant evidence. Additionally, Mrs. Matsaira testified that she recalled the term “sell-out” being used, not “idiot.” The Applicant has therefore placed reliance on Matumani v Magistrate Gwezhira NO. & Anor HMT 16-21 and S v Nduna & Another 2003 (1) ZLR 440, in which it was held that discrepancies in evidence must be

significant enough to affect the outcome. His argument is that this court erred in finding the evidence consistent, despite the material differences. He further contends that the court failed to appreciate the legal implications of these discrepancies.

The Applicant also submits that this court did not properly assess whether the Respondent had proven its case on a balance of probabilities. He argues that the court overlooked the incoherence in the testimonies of the witnesses and failed to balance the competing claims. The Applicant submits that the court therefore did not meet its obligation to ensure that justice was done by carefully weighing the evidence.

The Applicant has specifically submitted that the court erred by disregarding the testimony of Mr. Tafadzwa Jonhera, who was his witness before the disciplinary committee. The evidence is said to have contradicted the allegations surrounding the charge levelled by the Respondent. Mr. Jonhera’s testimony was that the atmosphere at the event where the alleged misconduct occurred was cordial, he did not hear any insults directed at Mr. Runhare. The Applicant submits that this witness testimony was critical and should have cast doubt on the allegations by the Respondent. By dismissing it, the court clearly misdirected itself in both fact and law.

The Applicant also submits that the court failed to consider that disciplinary action must primarily be corrective and educational before it is punitive, as stipulated in Section 7(1) of Statutory Instrument 15 of 2006. He has placed reliance on Nhari v Zimbabwe Allied Banking Group Ltd SC 6/20 and Clouston & Co Ltd v Corry [1906] AC 122, in which Supreme Court emphasized that the imposition of the dismissal penalty should be a last resort. The court’s finding that the dismissal penalty was appropriate, despite the Disciplinary Authority having described the Applicant as someone whose conduct could be corrected, was therefore a clear misapplication of the principles laid.

The Applicant also challenges the court’s acceptance of the Disciplinary Authority’s finding that he had a track record of disrespecting superiors. He argues that this finding was unsupported by evidence. The court also overlooked the context of a prior ruling by a Labour Officer, which had exonerated him and uplifted a final written warning. This court, so he submits, failed to evaluate this procedural context.

The Applicant contends that this court’s judgment lacked a clear and detailed rationale for upholding the Disciplinary Authority’s findings. He relied on PG Industries (Zimbabwe) Ltd v Bvekerwa & Ors SC 53/16, which underscores the need for judgments to comprehensively address the issues in dispute. The absence of detailed reasoning, he argues,

undermines the court’s decision. He further asserts that this court’s findings were based on a flawed evaluation of evidence, misapplication of the legal principles including the principle of progressive disciplinary action. Through the intended application for leave he is seeking to test the correctness of the judgment in the Supreme Court. He believes that the errors by this court provide a solid foundation for his appeal to succeed.

The Applicant acknowledges the principle of finality in litigation, as outlined in Ndebele v Ncube 1992 (1) ZLR 288 (S). He believes however that the denial of his reinstatement by this will result in a gross miscarriage of justice. He maintains that his intention to prosecute this matter to finality has always been clear. The dismissal of the matter was caused solely by his legal practitioner’s failure to act. He should not therefore be made to suffer for the sins of his chosen Legal Practitioner. The Applicant further submits that costs on a higher scale are unwarranted in this case, as he did not act in bad faith or deliberately delay proceedings. Punitive costs are clearly inappropriate given the circumstances.

RESPONDENTS’ SUBMISSIONS

In reply to the issue as to whether there is a reasonable explanation for the failure to file the Heads of Argument, the Respondent submit that although it is accepted that Ms. Chinzanga, the Applicant’s legal practitioner, was unwell, this case is really about the Applicant, not his legal practitioner. The Respondent has also urged the court to note that Ms. Chinzanga worked alongside Mr. Effort Jera, a senior legal practitioner in her firm, whose initials appeared on multiple court documents. This demonstrated his involvement in the case. It is Respondent’s position that the matter could have been reassigned to Mr. Jera or another legal practitioner in the firm during Ms Chinzanga’s incapacitation. There has however been no explanation from the Applicant as to why this was not done. The Respondent has placed reliance on Doves Funeral Assurance (Pvt) Ltd v Harare Motorway (Pvt) Ltd & Others SC 64/23, where Makoni JA reiterated that an applicant seeking reinstatement must provide a reasonable explanation for the delay and demonstrate good prospects of success on appeal. Similarly, in Bessie Maheya v Independent Africa Church SC 58/07, Malaba JA (as he then was) outlined factors such as the degree of non-compliance, the explanation for the delay, and the prospects of success. The Respondent further distinguished the Applicant’s reliance on Museka v Museka HB 113/08, arguing that the case dealt with rescission of default judgment rather than reinstatement of applications, making it clearly inapplicable. Additionally, in Museka, the legal practitioner fell ill after the documents were forwarded, whereas in this case, the

application was filed before Ms. Chinzanga became unwell. The Respondent also argues that The Combined Service Organisations Trust v Carruthers & Anor SC 114/23 referred to by the Applicant is inapplicable as it involved a non-profit organization, unlike the present case which involved an employee challenging his dismissal.

The Respondent further submits that the delay of 35 working days (from February 3, 2024, to March 25, 2024) is inordinate. The Medical Certificate provided by the Applicant also shows that Ms. Chinzanga was unfit for duty from January 22 to January 23, 2024, there is no evidence to substantiate Applicant submission that she was incapacitated for the entire 35-day period. The Respondent has referred to Reserve Bank of Zimbabwe v Mufudzi & Others SC 29/18, where Ziyambi AJA held that a finding of inordinate delay must be based on the facts, and to Mugari v Chinhoyi University of Technology SC 126/23, where Chitakunye JA also emphasized that an Applicant must explain the entire period of delay. Additionally, the Respondent has cited Chituku & Others v Infrastructure Development Bank of Zimbabwe HH 414/21, which emphasized that condonation must be sought promptly and with an acceptable explanation for the delay.

The Respondent also contends that the Applicant lacks any reasonable prospects of success on appeal. Citing Kasukuwere & Another v Mutyambizi & Another HH 704/22, the Respondent argues that the test for prospects of success requires a sound and rational basis in order for one to reach a conclusion that the appeal has a realistic chance of succeeding. The Respondent submits that the Applicant’s reliance on discrepancies between the words “idiot” and “sell-out” is immaterial. The record of proceedings clearly shows it had been proved that the Applicant verbally abused the Finance Manager, Mr. Runhare, in front of witnesses. The issue of which word was used was immaterial. In Matumani v Magistrate Gwezhira NO & Another HMT 16/21, it was held that immaterial discrepancies in evidence should not affect the determination of the truth. The Respondent further contends that the Applicant had a Final Written Warning in place at the time of the offense, he was also unremorseful and even falsely accused his superiors of a conspiracy. This misconduct, the Respondent submits, was gross and justified a penalty of dismissal. Citing Nhari v Zimbabwe Allied Banking Group Ltd SC 6/20, the Respondent also emphasizes that while disciplinary action should first be corrective, the Applicant’s prior warning constituted such corrective measures, which he then failed to take heed of.

The Respondent submits that reinstating the Applicant in such circumstances would cause prejudice by prolonging litigation and would result in it incurring unnecessary legal

costs. The definition of “prejudice,” as provided by Merriam-Webster, was referenced to support this claim. The Respondent argued that litigation is costly and time-consuming and that reopening the matter would also be contrary to the principle of finality in litigation.

The Respondent underscored the importance of finality to litigation, citing Wangayi v Mudukuti HB 155/17 and Eugene Kondani Chimpondah & Anor v Gerald Pasipamire Muvami HH 81-07, which discouraged repeated litigation over the same issues. The court was urged to avoid allowing the Applicant to reopen litigation in a matter that had already been competently resolved. The Respondent argued that the Applicant’s lengthy litigation history, including the present application, the condonation applications, as well as the intended appeal before the Supreme court, were clearly vexatious to it and were unnecessarily burdensome on the court system. They therefore amount to an abuse of court process. The Respondent’s prayer is therefore for costs on a legal practitioner-and-client scale. Citing Crief Investments (Pvt) Ltd & Another v Grand Home Centre & Others HH 12/18, the Respondent submits that the general rule is that costs follow the event. In this case however on the basis of the authority in Nel v Waterberg Landbouwers Ko-Operative Vereeniging 1946 AD 597, in which the court allowed costs on an attorney-and-client scale to be awarded, it should also be awarded higher costs in view of the vexatious proceedings and the Applicant’s reckless conduct.

EVALUATION

The matter before the court is the Applicant's request for reinstatement of an application dismissed by this court under case number LC/H/13/24. It is common cause that the court must determine whether ‘good cause’ has been shown, warranting reinstatement under the established legal principles referred to supra. Three primary factors must be satisfied to establish whether or not the application ought to be granted these being, the explanation for the delay, the duration of the delay, and the prospects of success on the merits, as articulated in Electoral Supervisory Commission v Tsvangirai SC 34/03.

EXPLANATION FOR DELAY

The Applicant attributed the delay in filing Heads of Argument to the ill health of his legal practitioner, Ms. Chinzanga. This is supported by the Legal Practitioner supporting affidavit and medical certificates. He further argued that the delay was neither deliberate nor inordinate and cited Museka v Museka HB 113/08 to support the principle that incapacitation of a legal practitioner does not amount to willful default. However, the Respondent challenged

this explanation, highlighting the involvement of another senior legal practitioner in the same firm, Mr. Effort Jera, whose initials appeared on court documents. The Respondent argued that no explanation was provided for why the matter was not reassigned to Mr. Jera or another colleague, rendering the Applicant’s explanation as insufficient. This contention is bolstered by Reserve Bank of Zimbabwe v Mufudzi & Others SC 29/18 and Mugari v Chinhoyi University of Technology SC 126/23, which emphasize the need to account for the entire period of delay. While the Applicant provided medical evidence of Ms. Chinzanga’s incapacity, the court finds the failure to utilize alternative counsel in the firm problematic. The explanation tendered is incomplete, given the lack of justification for the firm's broader inaction. This undermines the Applicant’s claim of a bona fide intention to pursue the matter promptly.

DURATION OF DELAY

The delay of 35 working days is considerable, particularly when juxtaposed with Mugari v Chinhoyi University of Technology SC 126/23, which stresses that an applicant must provide a comprehensive explanation for any period of delay. The medical certificate for Ms Chinzanga accounted for only two days of incapacity, leaving the remainder unexplained. The court’s finding is that although the delay itself cannot be regarded as inordinate, the period of delay has not been adequately explained, undermining the Applicant's assertion of good cause.

PROSPECTS OF SUCCESS

The application therefore hinges on whether there are reasonable prospects of success. The Applicant has argued that there were inconsistencies in the witnesses’ testimony, that there were procedural irregularities during disciplinary proceedings. He also pointed to the alleged failure by the Disciplinary Authority to substantiate the allegations against him as warranting a favorable outcome in the Supreme Court. The Applicant has also emphasized on the principle of proportionality in disciplinary action, citing Nhari v Zimbabwe Allied Banking Group Ltd SC 6/20 and Clouston & Co Ltd v Corry [1906] AC 122. The Respondent does not agree with the Applicant contending that he has no reasonable prospects of success. The Respondent has dismissed the alleged discrepancies in witness testimony as immaterial, referencing Matumani v Magistrate Gwezhira NO & Another HMT 16/21. The Respondent also highlights the Applicant’s prior Final Written Warning and failure to show remorse, asserting that these factors justified his dismissal from employment. While the Applicant has raised concern with regards inconsistencies in witnesses testimony, these inconsistences do not appear

significant enough to materially alter the findings of guilty on the charge levelled. The court finds compelling the Respondent’s argument that the evidence in the record points to gross misconduct, especially given the Applicant’s disciplinary history (the record indeed shows he was sitting on a Final Written Warning) and his lack of remorse. The Applicant’s prospects of success, do appear to be weak in the circumstances.

The Respondent also emphasized the principle of finality in litigation, arguing that reinstating the application would prolong proceedings and cause undue prejudice. The court agrees that the protracted nature of this dispute, coupled with the Applicant’s failure to act promptly, militates against reinstatement of the application for leave. Wangayi v Mudukuti HB 155/17 and Eugene Kondani Chimpondah & Anor v Gerald Pasipamire Muvami HH 81-07 highlight the importance of avoiding unnecessary litigation.

The Respondent has also asked for costs on a higher scale, arguing that the Applicant’s conduct was vexatious and an abuse of the court process. While the Applicant has indeed failed to adequately explain the delay and demonstrate strong prospects of success his conduct in filing the present application cannot be regarded as reckless or frivolous. He was only seeking to pursue his matter to finality. Costs on the ordinary scale would be appropriate. The principle established in Crief Investments (Pvt) Ltd & Another v Grand Home Centre & Others HH 12/18 supports this approach.

In the result it is ordered as follows;

The application for reinstatement be and is hereby dismissed with costs