Pasnose Chikove v University of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/206/2021
HARARE, 12 JULY 2021
CASE NO LC/H/158/2020
AND 05 NOVEMBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/206/2021

HARARE, 12 JULY  2021		 	            CASE NO LC/H/158/2020

AND 05 NOVEMBER 2021

In the matter between: -

PASNOS CHIKOVE				APPELLANT

AND

UNIVERSITY OF ZIMBABWE			RESPONDENT

Before the Honourable Manyangadze  J

For the Appellant			Mr C. Mateza  (Legal Practitioner)

For the Respondent			Mr N.M. Phiri (Legal Practitioner)

Mr C.J. Mahara  (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the decision of the respondent’s Appeals Committee, which upheld the dismissal of the appellant from employment by the Staff Disciplinary Committee (Disciplinary Committee).

The brief facts of the matter are that the appellant was employed by the respondent as a driver.  In the course of his duties, he drove the respondent’s staff bus on 28 June 2020.  It is alleged that about 120 litres of diesel was siphoned from the bus during the period the appellant had custody of the bus. As a consequence, the appellant was charged with misconduct, under the respondent’s code of conduct. The charge was contravening section 16, schedule D, subsection 16.2 of the University of Zimbabwe Employment Code of Conduct;

“Any act of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his/her contract.”

The factual particulars of the charge are specified as;

“On Sunday, 28th June 2020, between 0627 hours and 0807 hours, Mr Chikove allegedly tampered with the fuel tank of a University Bus, Registration No. CAIO ABZ 4782, which he was driving during one of his routine duty trips of ferrying staff from the University to town and back.  It was further reported that the act has resulted in the University being prejudiced about 120 litres of diesel, worth RTGS$8040,00.”

On 28 September 2020, the Disciplinary Committee found the appellant guilty as charged, and recommended a penalty of dismissal. In a letter dated 4 November 2020, the respondent approved the determination of the Disciplinary Committee, thus terminating the appellant’s employment.

The appellant appealed to the Appeals Committee, which on 16 November 2020, upheld the decision of the Disciplinary Committee.  This prompted the appeal to this court. The grounds of appeal are stated as follows;

“1. 	The tribunal a quo erred and misdirected itself in failing to find that the failure by the Staff Disciplinary Committee to take into account mitigation was a material irregularity fatal to the proceedings.

2.	The tribunal a quo erred and misdirected itself on the evidence and facts placed before it by failing to find that the Staff Disciplinary Committee had misdirected itself in convicting the Appellant on the following offences that he had not been charged with;

2.1.	Failing to explain 27km travelled on the 28th June 2020.

2.2.	Failure to dip the fuel tank to check the level of fuel on the 28th June 2020.

3.	The tribunal a quo erred and misdirected itself in failing to find that the Staff Disciplinary Committee had, in convicting the Appellant, misdirected itself in relying on inaccurate evidence.

4.	The tribunal a quo erred and misdirected itself in failing to find that the Staff Disciplinary Committee had, in convicting the Appellant, grossly misdirected itself by ignoring the facts and evidence before it and placed reliance on gestures and body language of the Appellant instead.

5.	The tribunal a quo erred and misdirected itself by failing to find that no evidence had been led by the Respondent to sustain the charge of the Appellant having tempered with the fuel tank for the bus ABZ4782.

6.	The tribunal a quo erred and misdirected itself by failing to find that the no evidence had been led by the Respondent to sustain the charge of Appellant having prejudiced Respondent of 120 litres of fuel.”

The Respondent has raised  two points in limine. These are that;

The notice of appeal is fatally defective in that it does not comply with Form LC4.

The notice of appeal is fatally defective in that the grounds of appeal are not clear and concise.

Non-compliance with Form LC4

This preliminary point need not detain the court.

The respondent avers that the appellant did not use the exact terminology contained in Form

LC4 In particular, the notice must show that the appeal is against

“the attached arbitration award/determination/dismissal;”

In his notice of appeal, the appellant states that he is appealing against the “judgement” of the Appeals Committee.  He further states that he is appealing against both conviction and sentence.

The respondent contends that the terms used by the appellant are alien to Form LC4. The terms “judgment”, “conviction” and “sentence” are not the ones specified, but “award”, “determination” or “dismissal”.

It seems to me the respondent is engaging everyone concerned in an exercise in semantics.  The terms “judgment”, “determination” or “decision” are often used interchangeably. They refer to what was decided by the tribunal a quo. As contended by the appellant, “There is no substantive difference between these terms,” and use of either term does not prejudice the respondent in any way.

The respondent also avers that the terms “conviction” and “sentence” are peculiar to criminal proceedings, and alien to civil proceedings.  Again, this appears to be an exercise in semantics. These terms have no substantial difference with the terms “liability” and “penalty”.  A person found guilty of misconduct can also be said to have been “convicted” or “found liable” of the misconduct. Also, a “: penalty” can also be referred to as a “sentence”, although the latter is often used in criminal trials. Both terms refer to punishment.

Use of the said terms cannot, in my view, render a notice of appeal fatally defective.  To do so would be to call for a slavish adherence to the rules not even contemplated by the drafters of the rules.  Such an approach has been discouraged.  See Telecel Zimbabwe (Pvt) Ltd v PORTRAZ & Ors.  HH446/15, Zvokusetwa v Bikita Rural District Council, SC  44/15.

In the circumstances, I find no merit in the first preliminary point.  It must accordingly be dismissed.

Grounds of Appeal are not clear and concise

Whilst the first preliminary point has been found to be too technical, almost bordering on

nit-picking, the same cannot be said of the second preliminary point.  It deals with the fundamental question of whether or not the grounds of appeal before the court are sufficiently clear to constitute a valid appeal.

On this point, the respondent avers that the grounds of appeal are too broad and general.  They are not “concise and precise” as required by the rules of court.  This point is amplified in paragraphs 5.5 -  5. 7 of the respondent’s heads of argument.  The thrust of the respondent’s contention is that the grounds of appeal do not clearly specify where the Appeals Committee erred or misdirected itself.  In this regard, the respondent made reference to the cases of Master of the High Court v Lilian Grace Turner SC  77/93, Reserve Bank of Zimbabwe v Granger & Anor SC 34/01, Reserve Bank of Zimbabwe v Lloyd Mufudzi & Ars SC  29/18.

On the other hand, the appellant contends that there is nothing wrong with his grounds of appeal.  Instead, it is the respondent who must be clear and specific on what he is attacking in the grounds of appeal. The appellant rebuffs the objection raised by the respondent as “a tired blanket attack on Appellant’s ground of Appeal which does not demonstrate the substance of the attack.”

The appellant further argues that “nothing has been pleaded or deposed to demonstrating this point. In other words, the appellant is objecting to the point in limine,

without questioning the issue raised therein. The objection being that the preliminary point is too broad and general.

This is a rather unusual response to a preliminary point. In essence, the appellant is raising a preliminary point against another preliminary point, without addressing it.  The respondent cannot be expected to provide the details that are lacking in the grounds of appeal.

Indeed, a reading of the grounds of appeal reveals some vagueness and ambiguity that makes any response thereto difficult.  The grounds of appeal have been cited in full in the portion of this judgement that outlines the background to the case.

In the first ground of appeal, it is not clear whether the applicant is appealing against penalty or seeking a review of the proceedings.  By alleging failure to take into account mitigation, it could mean the resultant penalty was too harsh.  However, the appellant is also alleging “a material irregularity fatal to the proceedings”.  This comes through as a review issue that is being thrown into an appeal.  As pointed out by Mr Phiri, on behalf of the respondent during oral submissions;

“There must be comprehensive expression of the ground of appeal….it is not respondent’s duty to fish out what exactly the Appellant is saying”

The Court also must not be put in a position where it has to figure out what the ground of appeal is all about.

In the second ground of appeal, the averment is that the appellant was convicted of offences he had not been charged with. These offences are failing to explain mileage and failing to dip the fuel tank.

As submitted by respondent in its heads of argument, the appellant, it appears, is mistaken on what charge he is facing. The charge is conduct inconsistent with the fulfilment of the express/implied conditions of the contract of employment. What appellant is alleging he has been wrongly charged with are the factual particulars of the misconduct, that is, the facts forming the basis of the charge.  Averring that he has been wrongly charged, as a ground of appeal, confuses the factual particulars and the charge. The result is a vague ground of appeal where the legal basis of the charge and its factual basis are mixed up.

Grounds 3 to 6 are all characterised by the terse averment that the evidence was inaccurate or inadequate.  This is precisely what was decried in the case of Dr Nobert Kunonga v The Church of the Province of Central Africa SC 25/17. In that case, GARWE JA went to great lengths, from pages 11 to 16 of the cyclostyled judgment, in highlighting the need for clear and concise grounds of appeal. It is not enough to simply aver that the evidence was inadequate.  There must be a sufficient degree of clarity and specificity in the averments.  The court must not be left to figure out on its own what exactly is being impugned.

It is the court’s considered view, in the circumstances, that the grounds of appeal in casu have failed the test of clear, concise and precise grounds of appeal.  The proper course of action is to order that the appeal be struck off the roll. Whilst the first point in limine has failed and thus cannot be upheld, the second point in limine has merit and must be upheld.  It is therefore on the basis of the second point in limine that the appeal will be struck off the roll.

In the result, it is ordered that;

The respondent’s first point in limine be and is hereby dismissed.

The respondent’s second point in limine be and is hereby upheld.

The appeal be and is hereby struck off the roll.

The appellant bears the respondent’s costs.

Chimwamurombe Legal Practice, Appellant’s Legal Practitioners

Muvingi and Mugadza, Respondent’s Legal Practitioners