Olivia Makoto v MacDonald Timbers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
HARARE, 11 MAY 2023
AND 4, JULY 2023
JUDGMENT NO: LC/H/189/23
CASE NO. LC/H/450/22
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==============================IN THE LABOUR COURT OF
ZIMBABWE
HARARE, 11 MAY 2023
AND 4TH, JULY 2023

In the matter between:

OLIVIA MAKOTO

AND

MACDONALD TIMBERS

RESPONDENT

Before The Honourable Kachambwa J

For the Appellant: In Person

For the Respondent: T. Muchini (Legal Practitioner)

KACHAMBWA J:

The Application

This is an application for review of the proceedings of the disciplinary committee. Initially the review was based on six grounds but they were reduced to two as the other four were abandoned. The remaining grounds are grounds 1(b) and (c) These read;

“Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the Authority as the case may be.

b) Disciplinary Committee did not deliberate on the submissions from (the) parties and there was no reason given for the decisions.


c) The minutes of the hearing were not a correct record of the proceedings and it is clear from them that the decision was predetermined before the hearing”.

2. The applicant prayed that;

1. The decision by the chairman be set aside.
2. This matter be remitted to the NEC or the Designated Agent for the industry to determine the matter fairly on behalf of the employer; or alternatively.
3. The matter be heard by the Labour Court on merits.

Application opposed

3. The application for review was opposed. On ground 1(b) it was said that the Disciplinary Authority deliberated on the issues and gave reasons. It was also said that the evidence was analysed as shown and thereafter a verdict was made.

4. On the record not being a correct record this was said to be incorrect and just a bald assertion without any proof. The ground was not clear on whether it was a question of evidence being left out or whether wrong information was included. In other words in what respect is the record not correct?.

Point In *Limine* Raised *Mero Motu*

5. The Court observed that the applicant was applying for a review of the initial hearing and not the appeal. The question was put to the parties as to whether this review was not supposed to have been before the previous authority, the
 Appeal Authority. The applicant’s position was that it could not raise review issues before the appeal authority because the regulations talk of an appeal only and an appeal is distinct from a review. On the other hand the respondent was of the view that the appeal at that level includes a review, that an aggrieved party raises both in the appeal.

6. The court allowed the parties to argue the review on the understanding that a decision on the point in *limine* would be determined first.

**Arguments on the merits**

7. The applicant’s argument on 1 (b),

(The disciplinary committee did not deliberate on the submissions from (the) parties and there was no reason given for the decisions) was that infact the whole issue was one of bias. This bias was said to be evident in that there was selective consideration of mitigating grounds, unnecessary interjections. The bias was attributed to the fact that the disciplinary authority wanted to please the appointing authority who is the employer. It was said to be a bias beyond just an apprehension of it which apprehension would be adequate to set aside the proceedings. It was said to be clear bias, there for everyone to see. A reasonable, objective and informed person would see that there was bias. The applicant referred to the cases of **Leopard Rock Hotel v Walen Construction 1994 (1) ZLR** and that of **SARF v President of the Republic of South Africa 1999 (4) SA 147**.

8. On the minutes not being a correct record the applicant argued that a lot of issues which could have assisted the applicant were left out deliberately. This information was said to be in favour of the applicant and could have exonerated him. An example given of the omitted evidence is that the applicant mentioned that this matter happened before the General Manager who charged the applicant had joined the company. His version of what happened was therefore said to be hearsay from Nyandebvu and Luck Zungu who had participated in the conduct leading to the charges. These two would be biased in their evidence as they would be seeking to exonerate themselves. Their evidence was said not to be credible. The applicant said that several issues were left out deliberately. However the court takes note that these issues were not listed. One would expect that they are listed so that the court may assess whether they are so serious as to have the effect of prejudicing the applicant. On the other hand we must accept that the applicant’s argument is not that what was left out resulted in distorted minutes that painted a picture that prejudiced him as such. He is simply saying that it is a sign of bias. There is need to go further and show that the decision is wrong because of bias, that the information left out proves otherwise, that there is no information to convict, that because of bias one was denied an opportunity to defend himself, if that is the case. What was the effect of the bias to the outcome if any?.

9. The respondent opposed the application and said that in terms of the case of Hama v NRZ 1996 (1) ZLR 664 (S) the standard for the court to interfere with the decision of a lower tribunal is very high and was not present in the case. On the issue of the chairperson interjecting it was said that it is the duty of the chairperson to guide proceedings by interjecting where necessary. On the interjections on record they were said to be within the acceptable range, they were not outrageous.

10. Coming to the issue of an inadequate record it was submitted that the applicant had not raised this issue before when given the record. It was only being raised now and without details to enable the other party to make an informed decision, that there was nothing to support the allegation. A reading of the record should show the bias alleged and such is not apparent in the present case. The applicant was just shooting in the dark by including all the grounds of review known to him.


11. The law on bias has been stated over and over again. Recently Garwe JA (as he then was) repeated it in **Pomelo Mining (Pvt) Ltd v Annadale Trust & Anor 2019 (3)** ZLR 1033(S). At page 1040 E-G he says that;

> “Where it is sought to disqualify a person from exercising a judicial function on the basis of bias or lack of impartiality, the test to be applied is an objective and not a subjective one. The question to be answered is whether there exist grounds upon which a reasonable person would think there is a genuine likelihood of the adjudicator not determining the issues fairly and on the basis of the evidence and arguments presented before him or her. The approach of the courts in this jurisdiction was eloquently expressed in **Leopard Rock Hotel Co (Pvt) Ltd and Anor v Walenn Construction (Pvt) Ltd 1994 (1)** ZLR 255 (S) at 275A-B:

> “A common theme which runs through the authorities is, therefore, that the test to be applied is an objective one. One does not enquire into the mind of the person challenged to determine whether or not he was or would be actually biased. Thus the character, professionalism, experience or ability as to make it unlikely, despite the existence of circumstances suggesting a possibility of bias arising out of some conflict of interest, that he would yield to infamy, do not fall for consideration. Again, the authorities are agreed that a mere suspicion of bias is not enough”.

Indeed, it is clear from the authorities that an apprehension of bias and lack of impartiality that is whimsical or morbid cannot be a ground for seeking a recusal and this is what the court a quo found. It was fortified in that regard by the signal failure of the appellant to
 substantiate any of the allegations it made against the second respondent”.


Applying the Law To The Facts

12. This court is satisfied that the allegations of bias are not sustained to the extent requiring this court to interfere with the outcome. As already pointed out there is need to substantiate the allegations with visible and serious evidence that is observable objectively. On the issue of the minutes not being a correct record it is expected that a complainant would point out poignant omissions not just to rumble over. It is also helpful to show how such omissions prejudiced a party. We do not have all this in the present case. There is just a feeble complaint, what one may call a collection of all that is known about a ground, without clothing it. Bias has to be shown and its effect has to be clearly articulated. We do not have that. Even if we accept that the applicant was initially a self-actor there is still not enough from that point of view. The complaint is not sustained.

Disposition

13. In view of the position that the complaint is not sustained the application must fail. The applicant has the appeal door open if he feels that he has a case to fight.

14. Costs normally follow the result. There are no reasons for that not to happen in this case. Consequently the court orders as follows;

The application be and is hereby dismissed with costs.
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