Matthew Kamba v Agricultural and Rural Development Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/785/14
HELD AT HARARE 4TH SEPTEMBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/785/14

HELD AT HARARE 4TH SEPTEMBER 2014		CASE NO LC/REV/H/151/14

& 21ST NOVEMBER 2014

In the matter between:-

MATTHEW KAMBA						Applicant

And

AGRICULTURAL AND RURAL DEVELOPMENT		Respondent

AUTHORITY

Before The Honourable R.F. Manyangadze, Judge

For Applicant		L Chimuriwo (Legal Practitioner)

For Respondent		A Mudheredhe (Legal practitioner)

MANYANGADZE, J:

This is an application for a review of disciplinary proceedings held by the respondent’s Disciplinary Authority.  The Disciplinary Authority sat to inquire into misconduct allegations levelled against the applicant.  The disciplinary hearing did not go into the merits of the matter.  The applicant raised preliminary issues relating to the procedural fairness of the disciplinary proceedings, such as the composition of the disciplinary panel.

In a letter to the applicant’s legal practitioners dated 5 June 2014, the Chairman of the Hearing Committee advised, among other things, that the Disciplinary Committee membership was going to be re-constituted as the Board was going to set up a new Committee.

The matter did not proceed to a hearing, as the applicant then filed the present application for review.  The grounds for review are detailed in an affidavit captioned “APPLICANT’S FACTS AND GROUNDS OF REVIEW”.  They can be summarised as follows.

The matter is res judicata.  The matter was effectively disposed of when the applicant received a written warning in respect of the alleged misconduct.  He received the warning in the form of a letter dated 18 October 2013.  Further to that, he was demoted from his post as Head of Administration.

It was therefore improper for the respondent to institute disciplinary proceedings in respect of the same issues for which the applicant was punished.

The Disciplinary Committee was improperly constituted.  The respondent constituted a Disciplinary Committee in terms of section 12 of the Agricultural Rural Authority Act [Chapter 18:01] (ARDA Act) instead of section 6.1 (b) of the Agricultural and Rural Development Authority Code of Conduct (the Code).

The disciplinary proceedings violated the principles of natural justice.  The respondent appointed interested persons to the Disciplinary Committee, in that such persons were also witnesses to the alleged misconduct.

On the issue of res judicata, the first and apparently the main ground of review, the court was referred to the cases of Mvaami (Pvt) Ltd v Standard Finance Ltd 1997 (1) SA 861,

Banda & Others v ZISCO 1999 (1) ZLR 340

African Wanderers FC v Wanderers FC 1977 (2) SA 38.

The principles set out in these cases are basically that the judgment on the

basis of which the special plea of res judicata is based must meet certain essential requirements.  It must be in respect of the same subject matter, based on the same grounds or issues, and between the same parties.

First and foremost, there must be a previous  judgment, decision or determination, issued by an authority of competent jurisdiction.  Thus, the basis of the special plea is the existence of a judgment or determination that has already disposed of the issues in contention.

In this regard, the letter of 18 October 2013 warrants careful examination. The letter is captioned “INSUBORDINATION AND GENERAL INABILITY TO FULFIL YOUR IMPLIED TERMS OF CONTRACT”.  It was authored by the Acting General Manager, and was addressed to the applicant.

The letter raises  a number of issues concerning applicant’s work performance. These include handling of procurement processes, production of Board minutes, holding of departmental meetings, and general maintenance of buildings.  It also advises the applicant of his replacement as Head of Administration and Chair of the Tender Committee.

The applicant contended that this letter constituted disciplinary action against him.

On the other hand, the respondent contended that the actions specified in this letter were nothing more than administrative measures taken to address the respondent’s concerns on the issues raised.  The letter does not have the legal status of a disciplinary decision or determination.

In my view, there is nothing in the letter that lends it the status of a disciplinary determination.    It seems to me fundamentally administrative.  If it was intended to be a formal warning, it should have been stated as such.

On the applicant’s replacement with Ms L Saunyama, the relevant paragraph of the letter reads;

“As a result of these manifested shortfalls and following wide consultation,  Ms L Saunyama will effective 18 October 2013, take over and physically Head the Administration Division until further notice

(Underlining added).

This reads like a re-assignment of functions, in which physical, de facto

headship  of the Administration Division was transferred to Ms L Saunyama.  It does not say the appellant was stripped of his grade.  It appears further steps were to be taken as this was an interim measure.  This can be reasonably inferred from the use of the phrase “until further notice”.

The reason for the measures taken is given in the paragraph which reads

“This action has been necessary to create efficiency, multi – skilling and a stronger coercive pragmatic and innovative management team.”

The respondent drew the court’s attention to the procedure and

formalities associated with a written warning, as provided for in the Code of Conduct.  This is provided for in Appendix B of the Code of Conduct.  The requirements include specifying the misconduct, signatures of the Human Resources Officer, the Workers Committee Representative, and the affected employee.  What this shows is that it is a formality that must be executed in compliance with the grievance and disciplinary procedures outlined in the Code of Conduct.  None of this was followed in the letter under consideration.

There is no record of disciplinary proceedings whose outcome was the alleged warning or demotion.

In my view the letter is consistent with the respondent’s averments that it was  conveying administrative measures the employer had taken to deal with the problems arising out of the department headed by the applicant.  It was still open for the employer to resort to formal disciplinary proceedings.  The letter cannot reasonably constitute a bar to such disciplinary measures.  In my view, it clearly fails the test for a plea of res judicata.  I find no merit in this ground for review.

The second and third grounds of review are related.  It is perhaps more convenient to look at the 3rd ground first, as it naturally leads to what has been placed as the second ground.

The third ground of review concerns the violation of principles of natural justice.  In particular, it is the principle that requires adjudicators in disciplinary proceedings to be impartial.  They should not have an interest in the matter under adjudication.

The record shows that this issue was attended to.  It was redressed.  Those members of the Disciplinary Committee the applicant objected to recused themselves.   It appears, in consideration of the applicant’s concerns, the initial Disciplinary Committee was dissolved, and another one re-constituted.

In the circumstances, the alleged non-observance of the principles of natural justice falls away.  There is no reason why submissions continued to be made in this regard.  After the recusal of members perceived to be impartial because of their position as potential witnesses, the issue was no longer in contention. It cannot therefore be upheld as a ground for review.

The applicant however, continued to take issue with the re-constituted Disciplinary Committee, as appears in the second ground of review.  As I have pointed out above, it should have logically come as the third ground of review, as it emanates from steps taken to redress the applicant’s concerns on natural justice.

This is a peculiar ground for review, in that the composition of the re-constituted Disciplinary Committee is not yet known.  It appears the basis of the applicant’s objection is that this Committee was set up by the respondent’s Board.  The Board has powers, in terms of the First Schedule to the ARDA Act, to

“Appoint, upon such terms and conditions as the Board thinks fit, such persons, other than the general manager, as may be necessary  for conducting the affairs of the Authority and suspend or discharge any such persons and to pay such persons such remuneration and allowances and grant such leave of absence as the Board thinks fit.”

The applicant is classified as a managerial employee.  This much is not

in contention.  The composition of a Disciplinary Committees is provided for in Section 6.1 of the respondent’s Code of Conduct. The section reads as follows:

“A disciplinary committee shall therefore be established as follows:

For non-management employee:

Head of Department					Chairperson

Chairperson Supervisor					Member

Two Workers Committee Representatives		Members

Human Resources						Advisor

For a Managerial employee:

Head of Department					Chairperson

Estate Manager						Member

Two Managerial Representatives				Member

Human Resources						Advisor

It is not clear why the applicant is persisting with this ground for

review, as the identities of the members of the re-constituted Disciplinary Committee are not at this stage known.  Their portfolios within the respondent’s organisation have also not been disclosed.  They may after all  not be ultra vires the provisions of the Code.  It has also not been shown what prejudice the applicant will suffer from the composition of the re-constituted Disciplinary Committee.

This aspect was considered by the Supreme Court in the case of Dulys Holdings v Chanaiwa 2007 (2) ZLR 1.  GWAUNZA JA stated at p 6:

“To the extent that the respondent was given an opportunity to answer to the charges and present his side of the story, he should not be heard to say that there was no observance of the audi alteram partem rule.  The court a quo correctly noted in its judgment that the rules of justice required no more than that the domestic tribunal acts according to the common sense precepts of fairness.  Given the circumstances outlined above, I respectfully disagree with the court a quo’s conclusion that it could, in casu, not be said that the rules of natural justice were observed.  I am satisfied that the respondent was therefore, not prejudiced in any way by the disciplinary procedures followed.

The appellant argues, correctly, that the adoption of disciplinary proceedings not specifically outlined in the Code finds support in ZFC v Geza 1998 (1) ZLR 137 (S), where this court emphasized the importance of flexibility in the conduct of disciplinary tribunals, and the principle that they were there to conduct an enquiry.  It cannot, in my view, be said in this case that the disciplinary tribunal did not conduct an enquiry.”

The applicant has not shown to what extent he will be prejudiced by the

re-constituted Committee.  The Committee was re-constituted to accommodate his concerns on the need to adhere to principles of natural justice.  As already indicated, it is yet to be seen who is in that Committee, and what position they hold in the respondent’s organisation.  In this regard, I agree with the respondent’s submission that the applicant’s objection has been made prematurely.

In the circumstances, the only ground of review that could properly be looked at, at this stage, was the one on res judicata.   That ground of review has already been disposed of.

In the result, it is ordered that the application for review be and is hereby dismissed with costs.

Lawman Chimuriwo Attorneys, applicant’s legal practitioners

G.N. Mlotshwa & Co, respondent’s legal practitioners