Naison Machingauta & Anor v Douglas Chinawa N.O. & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/44/22
HARARE, 10 FEBRUARY, 2022
CASE NO.
JUDGMENT NO. LC/H/44/22
CASE NO. LC/H/240/21
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IN THE LABOUR COURT OF ZIMBABWE           JUDGMENT NO.LC/H/44/22

HARARE, 10 FEBRUARY, 2022                          CASE NO. LC/H/240/21

AND 25 FEBRUARY, 2022

NAISON MACHINGAUTA					     1st Applicant

LOVEMORE WARURAMA                                    	              2nd Applicant

DOUGLAS CHINAWA N.O.                                                    1st Respondent

MUNICIPALITY OF BINDURA                                              2nd Respondent

Before the Honourable G. Musariri, Judge;

For Applicants		          :Mr J. Mambara(Attorney)

For 1st  Respondent		:No Appearance

For 2nd Respondent                  :Mr T. Zhuwarara (Advocate)

MUSARIRI, J:

Applicants applied to this Court for the review of their dismissal from employment by Respondents.  The Respondents opposed the application.  The grounds for review were four-fold.  I will deal with the grounds ad seriatim

1st Ground

“Acting Town Clerk irregularly appointed and his actions of suspending and charging the Applicants were irregular null and void.”

There is a presumption of regularity of the actions of public officials unless the contrary is shown or determined.  Perhaps mindful of this presumption Applicants had filed an application in the High Court challenging the appointment of the Acting Town Clerk.  It is common cause that that application is still pending.  The result is that there are 2 cases in which the regularity of the Town Clerks appointment is being challenged.  This substantiates Respondent’s argument that the defence of lis pendens avails.  The defence though is a dilatory one.  The effect is that the matter ought to be held over pending the determination of the High court matter.

2nd Ground

“Gross irregularity in the decision of the adjudicating authority including that of presiding over a prescribed charge”

Whether or not the charge was prescribed entails a determination based on the applicable law and facts.  The fact that the determination might be wrong does not found a ground for review.  This is borne out by the case of,

Charumbira v Commissioner of Taxes 1998(1) ZLR 584 where McNally JA at p586B opined thus,

“Essentially all that was alleged was that the magistrates came to wrong conclusions on the evidence.  I find very little to support these allegations, but the real point is that that is not by itself a ground for review.”

3rd Ground

‘Interest in the cause, bias and or malice on the part of the adjudicating   authority.”

The ground is developed in Applicants’ Heads of Argument as follows,

“The manner in which the evidence of Applicants was assessed and treated leaves a lot to be desired.  The Prosecutor was regarded as a witness.  A report that was never referred to in the evidence in chief or cross-examination with statements attributed to Mr Muzunde, Mr Mutupo and Mrs Nyapfere was considered at length as part of the evidence.  One can only infer bias, malice or interest in the cause ……”

Applicants take issue with the assessment of evidence by the disciplinary authority.  They urge the court to infer bias therefrom.  The assessment of evidence is the critical part of a determination/decision in matters such as the present one.  The correctness or otherwise of the decision is tested on appeal rather than review.  See the case of, Muringi v Air Zimbabwe 1997 (2) ZLR 488 at 490 F where Gubbay CJ stated that

“Judicial review, as the phrase implies, is concerned not with the correctness of the decision but the decision making process.”

Absent any extrinsic evidence of bias it was incompetent to base this ground for review on the merits of the decision itself.

4th Ground

“Bad reasons given for the decision.”  All that was argued by the Applicants attacked the merits of the decision of the disciplinary authority .  This ground has the same defect as the 3rd ground.  It is devoid of merit.

Counsel for Respondent argued that this application is an appeal disguised as a review.  I am persuaded to agree.  I associate myself with the penultimate paragraph in 2nd Respondent’s Heads of Argument which reads,

“67. The fact that Applicants are not happy with the reasoned determination of the Disciplinary Authority does not make the reasoning bad in the manner contemplated by the Applicants.  Nothing calls for a review.”

WHEREFORE IT ORDERED THAT,

1.	The application for review be and is hereby dismissed; and

2.	Applicants shall pay 50% of Respondents’ costs.

G.MUSARIRI

J-U-D-G-E