Malvern Mano v Emmanuel Tshuma N.O. and Medical Aid Society of Central Africa (MASCA)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/48/2021
HARARE, 6 OCTOBER 2020 &
CASE NO LC/H/REV/119/19
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IN THE LABOUR COURT OF ZIMBABWE	   	JUDGMENT NO LC/H/48/2021

HARARE, 6 OCTOBER  2020 &			  	CASE NO LC/H/REV/119/19

21 MAY 2021

In the matter between:-

MALVERN MANO						APPLICANT

And

EMMANUEL TSHUMA IN HIS OFFICIAL	 	1st RESPONDENT

CAPACITY AS THE CHAIRMAN OF THE

DISCIPLINARY COMMITTEE MEDICAL

AID SOCIETY OF CENTRAL AFRICA (MASCA)

AND

MEDICAL AID SOCIETY OF CENTRAL		2nd RESPONDENT

AFRICA (MASCA)

Before the Honourable Kudya J

For the Applicant				T. Deme (Legal Practitioner)

For the Respondents				N. Mugandiwa (Legal Practitioner)

KUDYA, J:

This matter was set down as an application for a review of the disciplinary proceedings conducted by MASCA against its employee one Mano. Four preliminary points were raised at the outset of the review proceedings.  It is only these four preliminary points which are addressed by this judgment.

Review application filed out of time

MASCA contends that the application for review is bad at law as it has been filed out of the time lines set out by the labour court rules.  It is its argument that Mano was advised of his dismissal from work on 29 October 2019. Such notification took the form of a determination which was served at his lawyer’s offices on 29 October 2019 filed of record as Annexure M.  In MASCA’s view the review application should thus have been filed with the labour court within ten days of the 29 October 2019.

In response Mano maintains that he is well within his time to have filed the application on 11 December 2019.  His argument is that post the 29 October 2019 correspondence there was communication between him and MASCA in the form of letters filed as annexure N and Annexure O.  Both letters spoke to a purported resignation by Mano which if it did not occur Mano then stood to be dismissed.  It is patently clear from a reading of the above 3 documents that MASCA technically confused the date of dismissal by the post 29 October 2019 correspondences. The impression created was that post that date Mano did not stand dismissed.  It is settled that one can aprobate and reprobate which MASCA is trying to do.  It caused the confusion on the dates so it cannot be seen to want to hold that against Mano. The court is satisfied that this point is meritless.  It should accordingly fail.

2.	Improper Citation

MASCA argues that the correct citation of the parties should have been a citation of one Mazura (NO).  instead of Tshuma (NO).  Mano’s view is that the mis citation was also  authored by MASCA by the intermittent chairing of the proceedings by Mazura and Tshuma ogether with their communication to him under their different hands.  MASCA’s admission that there was the intermittent chairing and correspondence writing put to paid the argument which MASCA intends to place vis decision on Mano.  In any event, the fact that Mazura and Tshuma were being cited in their official capacities makes no issue of substitution of one by the other.  In the court’s view the pleadings are in order as they stand.  In the result the point also being ill placed should fail.

3.	Unclear and inconcise grounds

The test for review and appeal grounds is settled (See Nhari vs ZABG Ltd  SC-6-20).  A reading of the review grounds states clearly that what Mano is irked by is the fact that he was tried by an improperly constituted committee, he was tried under a non-existent law, the matter was sub judice and that he was not heard in mitigation.  The court is not persuaded that Mano needed to do more than he did if a reading of his grounds for review is anything to go by.  The review grounds do not offend the standard set out at law.  To that extent the court is convinced that the point in limine is badly taken so it should fail.

4.	Incompetent relief

MASCA contends that Mano is seeking a quashing of the disciplinary proceedings relief which in its view is only available on appeal and not on review.  Mano on the other hand states that the quashing and setting aside in his view conotes the same thing.  In his view the net effect of the success of his review application is that it would be as good as if he had not been disciplined which in his view would entitle him to reinstatement or damages.

A reading of the law on review speaks to the fact that upon success in such an application the proceeding complained can be set aside which is a sine qua non of quashing. It would then be up to the employer to restart the proceedings or let the matter rest.  In the court’s view there is nothing amiss about Mano seeking to have the disciplinary proceedings quashed if he satisfies the court that they did not meet the test of procedural dictates of the law. What however is  not available to him is the remedy of reinstatement as that is a by product of the merits of a matter which is tested by an appeal. In the ultimate however the use of the

term quash does not make the review application fatal as quashing and setting aside are 2 sides of the same coin.  The point being without merit should also fail.

Costs

Both parties have prayed for costs on an attorney client scale.  There is nothing submitted by either party which justified such a scale.  The court is therefore satisfied that each party should bear its own costs.

IT IS ORDERED THAT

The points in limine raised by the respondents being without merit they be and hereby dismissed. Each party bears own costs.

Thoughts Deme Attorneys at Law, Applicant Legal Practitioners

Kantor and Immermman, Respondent’s Legal Practitioners