Modester Chirimuuta v Hwedza Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/381/14
HELD AT HARARE 27TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/381/14

HELD AT HARARE	27TH MAY 2014			CASE NO LC/H/391/10

& 4TH JULY 2014

In the matter between:-

MODESTER CHIRIMUUTA				Applicant

And

HWEDZA RURAL DISTRICT COUNCIL			Respondent

Before The Honourable P Muzofa, Judge

For Applicant		P Mabundu (Legal practitioner)

For Respondent		C Chikore (Legal Practitioner)

MUZOFA, J:

This is an application for review of a decision by respondent’s Appeals Committee dismissing the applicant’s appeal.

The background to this case is as follows.  Applicant was employed by the respondent as an Assistant Executive Finance.  She was suspected of having committed certain offences in contravention of the respondent’s Code of Conduct.  She was duly suspended and she appeared before a disciplinary committee which found her liable and dismissed her.  The applicant thereafter filed an appeal with this court against the determination of the disciplinary committee.  The appeal was dismissed on the basis that the applicant as a requirement should have exhausted local remedies before approaching the Labour Court.  Thereafter the applicant filed an appeal before the respondent’s Appeals Committee.  The appeal was dismissed in that it was noted outside the seven days within which an appeal should be noted in terms of the respondent’s Code of Conduct.  The applicant then filed this application for review.  There are two grounds for review that:-

The Appeals Committee erred in dismissing the appeal on a technicality.  The Appeals Committee should have dealt with the case on the merits.

The Appeals Committee also erred in its failure to condone the failure by applicant to file her appeal within 7 days of the decision of the disciplinary committee considering that a reasonable explanation had been given.

The first ground of appeal raises the question whether the Appeals

Committee erred in dismissing the appeal on a technicality.  I must say at the outset that the issue of technicalities should not be used by litigants in order to avoid compliance with set rules and regulations.  The applicant was duly found liable for the offences she was facing on 2 August 2010.  The Appeals Committee was ceased with applicant’s appeal on 29 February 2012.  It was submitted by the respondent that in terms of the Hwedza Rural District Council  Code of Conduct an appeal should be noted within seven days of the determination.  This position was not disputed.  Applicant noted her appeal almost two years after the determination of the disciplinary hearing.  Clearly the Appeals Committee was correct to decline to hear the appeal.

Applicant submitted that the Appeals Committee should not have dealt with the matter on technicalities but should have dealt with the matter on the merits and referred to the case of Dalney Mine v Musa Banda 1999 (1) ZLR 220 (S).  The cited case cannot apply to this case.  In this case it is the conduct by the applicant that has brought the difficulties in her case.  A flagrant defiance of the Code of Conduct as the case in this matter should not be allowed to benefit the applicant.  Codes of Conduct are put in place to regulate the affairs of the employment relationship.  One of the cornerstone of these codes is to set out the conduct of the disciplinary proceedings.  These feed into the fundamental requirement to expedite disciplinary proceedings and bring finality to labour disputes.  The requirement to file an appeal within seven days in my view was meant to achieve quick resolution of matters.   The issue of time lines is important in the finalization of labour disputes that is why section 101 (6) of the Act provides for a procedure where matters are not concluded within 30 days.  For appellant having neglected to comply and seek to lay the blame on the respondent is unfair.  The Appeals Committee simply followed the requirements of the Code of Conduct.  This ground of review has no merit and should be dismissed.

The second ground for review is that the respondent erred by not condoning the applicant’s conduct.  It is an accepted principle that an authority clothed with powers to adjudicate has powers to condone actions violating the rules.  In this case the Appeals Committee had the capacity to hear an application for condonation and determine on it.  However it cannot grant condonation where no application for condonation has been made see Forestry Commission v Moyo  1997 (1) ZLR 254 (SC).  Applicant submitted that an application for condonation was made.  Respondent submitted that no application was made.  The documents filed of record show that after the applicant’s appeal was dismissed, applicant’s legal representative wrote to the respondent requesting for an appeal hearing.  The letter was not produced before this court.  However the record of the Appeals Committee hearing has valuable evidence.  The chairperson of the committee indicated that the parties’ sitting was “necessitated by a letter from Ms Chirimuuta lawyer requesting for an appeal hearing.”  Thereafter the legal practitioner gave the background to the matter.  There is no indication that the legal representative applied for condonation for the late noting of an appeal.

My interpretation of what transpired is that the legal representative intended to address the Appeals Committee on the matter.  However she had to begin from the time the order of the disciplinary committee was made.  As a legal practitioner she must have been diligent enough to first apply for condonation.  The Appeals Committee was then to determine that application before addressing the merits of the case.  The application is necessary to trigger the discretion to extend the time.  The application was not made and therefore the Appeals Committee was not obliged to grant a non existent application.  It is interesting to note that even in the applicant’s heads of argument there is no indication that an application for condonation was made.  In the background section of the applicant’s heads of argument the applicant states in line 4 thereof.

She eventually appealed to the Appeals Committee which ruled that the time limit within which she was supposed to appeal has lapsed…”

Clearly the applicant approached the Appeals Committee with an appeal and not an application for condonation.  This ground for review has no merit and it should also be dismissed.

Accordingly the application for review be and is hereby dismissed with costs.

Mabuya Law Chambers, applicant’s legal practitioners

C Mutsahuni Chikore & Partners, respondent’s legal practitioners