Munetsi Gwemba v Zimbabwe Electricity Transmission and Distribution Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT, NO LC/H/165/25
HARARE 26 SEPTEMBER 2024
AND
17TH APRIL, 2025
CASE NO LC/H/675/2024
MUNETSI GWEMBA
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 26 SEPTEMBER 2024
AND
17TH APRIL, 2025

MUNETSI GWEMBA

ZIMBABWE ELECTRICITY TRANSMISSION
AND DISTRIBUTION COMPANY (PVT) LTD

Before the Honourable Chivizhe, Judge:

For Applicant    Mr E. Nyakunika (Legal Practitioner)

For Respondent    Mr S. Mawere (Internal Counsel)

CHIVIZHE, J:

This is an appeal against the determination by the Respondent Appeals Committee dated 11th December, 2023. In relief the Applicant prays as follows: -

(i) The Appeal succeeds with costs
(ii) The Appellant be and is hereby found guilty of the two charges of misconduct raised against him
(iii) The Appellant be and is hereby reinstated to his former position without loss of salary and benefits, and
(iv) Should reinstatement not be possible, parties are ordered to agree on damages in lieu of reinstatement within 30 days from the date of the order of Court failing which either party may approach the Labour Court for purposes of quantification

The appeal is opposed.

BACKGROUND FACTS

The material background facts to the mater are as follows. The Applicant is a former employee of the Respondent. He was engaged in the position of Client Services Officer. He was suspended from duty on 13th March 2023. The Respondent levelled two charges of misconduct. Firstly, it was alleged, that, he had contravened section 7 (1)(d)(iii) of the National Employment Council for the Zimbabwe Energy Industry Code of Conduct and Grievance Handling Procedure 2011: Insubordination or disobedience that is to say “wilfully failing, neglecting or refusing to comply with any of the conditions of service, the company/organisation rules or regulations, any applicable laws, laid down policies or procedures, written standing Instructions” The allegations behind this charge were that Applicant had wilfully failed to comply with company policy or procedures (Commercial Guidelines Section 14(1) and (2) in that on the 17th August 2022 he assigned a line crew led by Mr Chuchu, the task of constructing an LT line to service a group of business at Loreto (Roma) Business without following laid down policy or procedures. The Respondent alleged that the group had not completed the necessary application forms and the project had not been paid for as provided for in the Commercial Guidelines.

On the second charge Applicant was alleged to have contravened section 7(1)(k)(ii) of the same Code, Corruption, that is to say, “soliciting, accepting or receiving any bribe, secret commission, reward favour in connection with the discharge of duties from any person with whom an employee conducts or is likely to conduct the business of the company /organisation” in that sometime in 2022 he was alleged to have solicited for a bribe of USD200.00 from Dr Nhamburo, the Loreto (Roma) Business Centre Scheme Treasurer and received it. The payment was said to be a facilitation fee for ensuring that work would be expedited and the project completed within the shortest time possible. The Respondent further alleged that Appellant had inspected some of the customer-supplied materials that were already on site and given permission for the purchase of more materials.

It was Respondent further allegation that on 17th of August 2022, Applicant had driven the line crew to the site and on the same day hole digging commenced. Upon realising that two additional wood poles were required Dr Nhamburo had contacted Applicant seeking his assistance. Applicant had allegedly indicated in response that he was able to supply the poles at a cost of USD $160.00. This communication was done in the presence of Mr Abureni. Dr Nhamburo was instructed by the Applicant to give the money to Mr E. Mvula, a ZETDC employee who was part of the crew working on the project. At the time charges were levelled the project had not yet been completed and the two additional poles paid for had not yet been delivered.

The disciplinary committee hearing was scheduled for 21st March 2023 Applicant was notified by letter on the 14th of March, 2023. On the day of hearing the Applicant’s representative wrote a letter to the Secretary of the committee seeking a postponement of the matter as the Applicant was not feeling well. The Appellant was a known chronic hypertensive patient. The representative was seeking a postponement to the following week. It is not a contested position that the letter arrived a minute before the hearing commenced. The Disciplinary Committee proceeded with the hearing in the absence of the Applicant and his representatives. Applicant was found guilty of both charges. In respect of first charge a penalty of deduction of 10% basic salary for 1 month was levied whilst for the second charge the Disciplinary Committee imposed a penalty of dismissal with effect from 21st March 2023. Dissatisfied, the Applicant noted an appeal to the Head Office Appeals Committee, which appeal was dismissed on 11th December 2023. Still aggrieved the Appellant noted the present appeal before this court.

GROUNDS OF APPEAL

The appeal has been noted on the basis of the following grounds:

1. The Appeals Committee erred and misdirected itself in finding that the appellant waived his right to be heard by failing to attend a disciplinary hearing, despite being hospitalized, which was communicated to the Disciplinary Committee before the hearing commenced.

2. The Appeals Committee grossly erred and misdirected itself in failing to find that the disciplinary hearing was not properly conducted, as the Disciplinary Committee prosecuted the Respondent's case by leading the respondent's witness, contrary to Section 20(2)(C)(4) of the National Employment Council for the Zimbabwe Energy Industry Code of Conduct.

3. The Appeals Committee misdirected itself and grossly erred in finding that the Appellant had not convinced it that, on a balance of probability, he was not guilty, when he had no burden to prove his innocence and was not accorded the opportunity to defend himself.

4. The Appeals Committee grossly erred in finding the appellant guilty of the two acts of misconduct in the absence of proper and corroborative evidence adduced on behalf of the respondent, specifically that the appellant solicited, accepted, or received a bribe from the respondent's witness and that he wilfully failed to comply with company policy or procedures.

The appeal is opposed by the Respondent. The Respondent through the Opposing Affidavit of Judith Tsimba, the Company Secretary and Legal Advisor, had taken a point in limine that the relief as sought was fatally defective. In regards the specific grounds of appeal the Respondent submitted as follows, on the first ground, that, the Applicant was properly notified of the date, time and place of the disciplinary hearing. His representatives were also aware of the same. Both he and his representative opted not to attend. The Respondent had proceeded as provided under the Code of Conduct. The email written by Applicant representative only arrived a minute before the hearing in clear violation of the provision of the Code requiring three days notification.

On the second ground of appeal the Respondent contends that the hearing had proceeded in Applicant’s absence, it was also conducted in an informal manner. The Respondent contends the Disciplinary Committee had only raised questions with the witnesses in clarification of the essential elements of the charge. It was the position of the law, in any event, that Applicant having opted not to attend the hearing had waived his right to challenge the proceedings and the findings. On the third ground of appeal Respondent contends that the Appellant was properly found guilty on the charges on the basis of the evidence as led against him. The Appeals Committee properly found no basis for interference with the determination by the Disciplinary Committee.

In regards the fourth and last ground of appeal the Respondent submits the ground is so widely cast it is hampered to respond to it. On the basis of these averments the Respondent prays for the appeal to be dismissed as it is clearly not merited.

PARTIES SUBMISSIONS

At the commencement of proceedings, the parties notified the court of their decision to abandon arguments on the preliminary point as taken by the Respondent. The point in limine was accordingly recorded by the court as abandoned.

On the merits, Mr Nyakunika, for the Appellant, submitted that he would abide with heads of Argument as filed. He however was placing emphasis on the point that the Appeals Committee erred and misdirected itself in finding that Applicant had waived his right to be heard. His submission was that the Appeals Committee had specifically failed to note that the Code allowed the Disciplinary Committee to proceed only in instances of wilful default by the employee. In this case the Appellant’s default was not wilful. He was actually hospitalised on the date of hearing. He had communicated with the secretary of the Disciplinary Committee before the hearing commenced. The Disciplinary Committee ought to have postponed the hearing in the circumstances.


On the second ground he submitted that the Disciplinary Committee members had improperly prosecuted the matter themselves, contrary to the provisions of the Code which provide that the complainant should prosecute the case. The Disciplinary Committee members were said to have conducted themselves in that manner as they had a preconceived decision to terminate Appellant’s employment.

In relation to the third ground that the Appeals Committee had erred in arriving at a conclusion that the Appellant had failed to prove/establish before them that he was not guilty of the charges, Mr Nyakunika submitted that it was actually the Respondent who had the onus to discharge as the employer. It was incumbent on Respondent therefore to prove/establish the two chargers levelled against the Applicant. The Respondent had clearly failed to discharge the onus on it in this case.

On the fourth ground of appeal Mr Nyakunika contended that the Applicant had been improperly found guilty of the charges as insufficient evidence had been led to prove establish the charge. There was, for an example, no evidence led to prove that he had requested and received the $200 as a bribe to facilitate the speedy completion of the project. He also specifically pointed to the absence of evidence led from Mahahula who had allegedly received the $200 from Mr Nhamburo, the treasurer of the scheme. Mr Nyakunika also pointed to the absence of evidence from the workers who had allegedly received the $160 for the purchase of the two poles which was for onward transmission to the Applicant. His submission was that in the absence of such critical evidence, the Disciplinary Committee erred in arriving at a conviction. The Appeals Committee in turn erred and misdirected itself in upholding his conviction on the charges and the penalty imposed. On this basis Mr Nyakunika prayed for the appeal to be upheld, the decision of the Disciplinary as well as the Appeals Committee be set aside. The Applicant is to be reinstated to his original position without loss of salary/benefits failing which the Respondent must pay damages in lieu of reinstatement.

Mr Mawere, per contra, submitted, on the first ground of appeal, that the Applicant was timeously notified of the time, place, venue of the disciplinary proceedings. He was also advised of the consequences of his failure to attend. The Applicant and his representatives however opted not to attend on the day of the hearing. Assuming the Applicant was indeed in hospital, his representatives who were also aware of the date, time place of the hearing also did not attend. On the basis of Section 17(2) of the Code notification to the Secretary of the Disciplinary Committee should have been received 3 working days before the hearing. The communication in this case had only been received a minute before the hearing. The
 Respondent position was that Applicant actions were designed to frustrate the disciplinary process. Relying on the principles as laid in **ZESA vs Stevavo SC 29/2017** the right to be heard is not obsolete it can be waived. The Applicant conduct clearly amounted to a waiver of his right to be heard. The Appeals Committee was therefore correct in their findings on this point.

On the second ground of appeal, Mr Mawere submitted that Section 18 of the Code requires proceedings to be conducted in an informal manner with no strict adherence to civil or criminal rules of procedure. Ultimately the proceedings must reflect justice and fairness. The Respondent position was that justice and fairness had been done in this case. On the basis of the principle laid in **Moyo vs REA SC 4/2014** the Applicant having deliberately absented himself from the proceedings he waived his right to be heard. He also clearly waived the right to challenge the process and the findings made. The second ground of appeal also had to fail.

On the third ground of appeal, Mr Mawere, submitted that, Applicant when presented with an opportunity, had failed to convince the Appeals Committee that the Disciplinary Committee had erred or misdirected itself in any respect. The ground was clearly lacking in merit and also had to be dismissed by the court.

On the fourth and last ground of appeal, Mr Mawere, contended, that, the ground was lacking in precision and conciseness. The Respondent was relying on **Chimwaiwache vs S SC 18/2013** where the Supreme Court held that grounds of appeal must be brief and concise. Notwithstanding, the Respondent position on this point was that sufficient evidence had been led to show that Applicant had received $200 from Dr Nhamburo. On the issue of the witness’s failure to corroborate Dr Nhamburo testimony the Disciplinary Committee had noted that they were afraid to say who had received the money for fear of being disciplined by the employer. There was however sufficient evidence led to show that indeed the witness Dr Nhamburo had parted with $200 and a further $160 ostensibly for the purchase of the two poles. The evidence was in the form of the WhatsApp group chat to which the Appellant had also been party. The Appellant had clearly not commented when the issue of the two payments were made on the group chat. On this basis the ground clearly lacked merit and had to also be dismissed. The Respondent prayer was for the dismissal of the whole appeal as meritless.

**EVALUATION**


Although Appellant has raised four grounds of appeal, there is however only one issue for determination, that is whether or not the Appellant’s right to be heard was waived/abandoned by him as found by the Appeals Committee.

The law regarding waiver of the right to be heard was espoused in case of *Moyo vs REA SC 4/14* wherein the Supreme Court held that:

“The main point taken by Magwaliba before us, was that the disciplinary proceedings were irregular and unfair in that the Appellant was not heard in person and the proceedings were not conducted within fourteen (14) days as required by S 6(2) of the Regulations. In our view the Appellant by deliberately absenting himself without leave from the hearing waived his right to challenge the conduct of the disciplinary proceedings. He had the option which he did not exercise of seeking a postponement since he knew that he would not be available on the date of hearing. In these circumstances we do not feel the failure by the Respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”

This position of the law has been reiterated over the years by the same court. In *Zesa Enterprises vs Stevavo SC 61/16 Malaba DCJ* (as he then was) at p. 5 stated thus;

“Where a person willfully defaults from attending a hearing, he or she would have waived the right to challenge the conduct of the proceedings. The rationale was aptly and eloquently captured by *ZIYAMBI JA in David Moyo vs REA SC 4/14”*

The law is therefore clear that while an employee has a right to be heard, such right may however be waived in certain circumstances. It is also apparent based on these authorities that in such circumstances a hearing may proceed in absentia. See for example *Munyuki vs City of Gweru 1998) ZLR 182(S)*. The employee as a consequence waives the right to challenge the proceedings and the outcome of such proceedings *See Pacprint (Pvt) Limited vs Khumbula SC67 of 2017.*

In *casu*, the Appellant’s position is that although he was notified of the hearing he however could not attend as he was in hospital, he had notified the employer of his hospitalisation. The conduct of the Appellant clearly amounted to a waiver of his rights. The Appellant did not dispute before the Appeals committee that he was notified in time of the date, time, place of the hearing. He failed to attend the hearing for the reason that he was sick. He however was unable to justify why his representatives also did not attend on the date. He also could not explain why he or his chosen representatives did not communicate on time, in any event within the time period stipulated by the Code. Even whilst he was on his sick-bed he could still have made a phone call to his representatives to at least appear and seek for the postponement. The Disciplinary Committee was clearly correct in proceeding with the hearing in this case The Appeals Committee was also correct in upholding the finding by the Disciplinary Committee as the Appellant took a calculated risk that the hearing would be concluded adversely against him. With respect of the rest of the grounds, on the basis of the authority in *Pacprint (Pvt) vs Khumbula* referred to *supra* the Appellant not only waived his right to be heard he also clearly forfeited the right to challenge the proceedings as well as the outcome of the proceedings. On this basis the rest of the grounds of appeal cannot succeed. In the result the following order is made:

-The appeal be and is hereby dismissed for lack of merit.
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