Lucky Musaengana v Sporrow Hauliers (Pvt) Ltd t/a J&J Transport

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT No: LC/H/349/25
HELD AT HARARE
CASE No: LCH 609/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT No: LC/H/349/25

HELD AT HARARE	CASE No: LCH 609/25

In the matter between:-

LUCKY MUSAENGANA	APPLICANT

Versus

SPORROW HAULIERS (PVT) LTD t/a J&J TRANSPORT	RESPONDENT

JUDGMENT

Harare 17 September 2025

Before Honourable Mr Justice Jaravani J. For the Applicant: M.V Kasvaurere

For the Respondent: A. Manyonga Opposed Application for Review. Ex Tempore

JARAVANI J: This is an application for review of disciplinary proceedings that were conducted by the Respondent against the Applicant where the Respondent convicted the Applicant on a single charge of gross negligence arising from a motor vehicle accident. The application was based on 3 grounds of review and the applicant abandoned 2 of the grounds of review namely; grounds 2 and 3 leaving a single ground of review before the court namely that the disciplinary committee lacked jurisdiction.

The details of the grounds of review are that the proceedings that were conducted by the respondent against the applicant were conducted in terms of the applicable Code of conduct namely SI 42 of 2022 that is the Collective Bargaining Agreement for the Transport Operating Industry which incorporate a code of conduct in its 6th schedule.

The relevant part of the code of conduct which was invoked by the applicant in its argument is Clause E.8 of the code of conduct which gives a 30-day moratorium for completion of proceedings by the Respondent’s disciplinary mechanisms failure upon which such proceedings should either be referred to the National Employment Council for the Transport Operating Industry or if the parties agree in writing such proceedings may continue before the Respondent’s disciplinary mechanisms.

The facts in casu are common cause to a great extent. A period of 30 days from the date of notification of hearing lapsed before the conclusion of the proceedings. There was neither a written agreement between the parties to proceed with the disciplinary proceedings, nor was the matter referred to the National Employment Council (N.E.C) for Transport Operating Industry after the lapse of the 30-day period. Instead, it is also common cause that the respondent’s disciplinary mechanism unilaterally proceeded with the disciplinary proceedings until it churned out a determination where it convicted and dismissed the applicant for the alleged misconduct culminating in the present proceedings.

It is this Court’s view that once the 30-day moratorium has expired the disciplinary committee loses temporal jurisdiction over the dispute unless there is an agreement in writing between the parties which agreement was not entered into. Clause E.8 of the Code of Conduct is distinguishable from s101(6) of the Labour Act [Chapter 28:01] in that it provides that the proceedings may continue upon agreement while s101(6) of the Labour Court Act provides that a party may refer a case to the Labour officer after the expiry of the temporal moratorium of the jurisdiction of the disciplinary mechanism. The referral of the matter to a Labour Officer, after the lapse of a period of thirty days from the date of notification of the proceedings, before a determination by the disciplinary committee deprives the disciplinary mechanism of jurisdiction in s101(6) of the Labour Act- Matenhere v Cornway College SC 13-25. The use of the word ‘may’ in Clause E.8 of the Code does not render the need for the parties to agree in writing for the proceedings to procced after 30 days directory because such an interpretation will be against the context and purpose of the Clause which is to protect subjects of disciplinary proceedings from delayed proceedings- see Matanhire case supra at p8-9.

Clause E.8 of the Code of Conduct which is immediately relevant to the present proceedings, is clear that after the lapse of 30 days the jurisdictional moratorium of the disciplinary mechanism expires and there will be need to explore either of the options provided in Clause

E.8 of the Code, which is either securing a written agreement between the parties to extend that moratorium for the proceedings to proceed under the Code or referring the matter to the National Employment Council.

It is common cause that none of these options was explored and implemented in the present proceedings. Instead, the Respondent adamantly proceeded with the proceedings despite objection by the Applicant.

In the premises, the court makes a finding that the Respondent’s disciplinary committee jurisdiction expired upon the lapse of 30 days and it was improper, irregular and unlawful for the Disciplinary Committee to proceed with the hearing without the agreement of the Applicant. The Court, therefore, sustains the Applicant’s single ground of review.

On the issue of costs, the Court notices that the Applicant abandoned grounds of review 2 and 3 at the hearing but both the parties and the Court worked with the load of all the three grounds of review from inception of the application to the hearing. Ultimately, the court is of the view that the Applicant was not absolutely successful in his application because of the abandonment of grounds of review 2 and 3. For these reasons, costs in these proceedings will not follow the cause. The court will not make an order as to costs. The Court’s order is as follows:-

The application for review be and is hereby granted.

The disciplinary proceedings that were conducted by the Respondent against the Applicant for the charge of gross negligence and their outcome thereof are hereby set aside.

The matter is hereby remitted for hearing de novo before a Designated Agent of the National Employment Council for the Transport Operating Industry.

There shall be no order as to costs.

JARAVANI J