Patrick Marufu v Minerals Marketing Corporation of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/89/13
HELD AT HARARE 11TH MARCH, 2013
CASE NO LC/H/572/11
In the matter between:-
---------




IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/89/13

HELD AT HARARE 11TH MARCH, 2013	      CASE NO LC/H/572/11

In the matter between:-

PATRICK MARUFU		     			Applicant

And

MINERALS MARKETING CORPORATION

OF ZIMBABWE 							Respondent

Before The Honourable G Mhuri, Senior President

For Applicant:  Mr R. Matsikidze (Legal Practitioner)

For Respondent: Mr T.E. Gumbo (Legal Practitioner)

MHURI, G:

This is an application for leave to appeal to the Supreme Court against this Court’s judgment of the 14th December 2012.

Appeals to the Supreme Court against decisions of the Labour Court are on a question of law. This is provided for in Section 92F (1) of the Labour Act [CAP 28:01] of the (The Act). It reads:-

“An appeal on a question of law only shall lie to the Supreme Court from any decision the of the Labour Court”.

Applicant’s grounds of appeal as captured in his Notice of Appeal to the Supreme Court are as follows:-

The Court aquo misdirected itself factually, a misdirection that a mounts to a point of law in upholding the dismissal of the Applicant when clearly, the allegations laid has(ve) not been proved on a balance of probabilities ........

The Court aquo erred at law in confirming dismissal when the essentials of the alleged misconducts factually were not proven on a balance of probabilities ....

This ground of appeal was withdrawn.

The Court aquo erred at law in finding that the dismissal was fair despite the fact that the record of proceedings in question does not have the evidence of the Applicant as required by the audi alteram paterm rule.

The Court aquo erred at law in finding that the dismissal (was) fair despite the fact that the record of proceedings in question does not have evidence in chief of the Respondent and at law one who alleges should prove

Applicant’s prayer is for the matter to be remitted for a hearing de novo on the merits by the Labour Court or an Arbitrator.

It is quite evident from the grounds of appeal and also from the oral submissions by Applicant’s Legal Practitioner that Applicant’s bone of contention is on the failure by Respondent to adduce evidence to substantiate the charges before the Disciplinary Committee.

The two charges upon which Applicant was found guilty were:-

Forgery and uttering (Section 3.3.10 of the Code)

Gross incompetence and/or gross inefficiency (Section 3.3.6 of the Code)

From the record of proceedings, Applicant was guilty of these two charges based on evidence which was common cause.

It was not in dispute that Applicant falsified  prices of parcels on a manifesto through his Memorandum dated the 28th March 2011. Manifesto to BCE Diamonds.

It was not in dispute that he sold diamonds to Red Mercury which did not have a valid licence. He did this on the basis of a payment receipt. This company had outstanding quarterly returns and therefore did not qualify to trade. Applicant as a senior person knew this.

On a balance of probabilities, with such undisputed facts, it was proper for the Court to confirm, the lower tribunals’ findings. To that end, I find that Applicant does not have good prospects of success on appeal. Further, the Court made the factual findings which findings, in view of the undisputed facts, are not so outrageous as to constitute a misdirection at law.

It is common cause that Applicant was served with a suspension letter dated the 26th June 2011 in which the acts of misconduct and the facts were stated quite clearly and in detail.  By a letter of the 28th June 2011 Applicant through his erstwhile lawyer Mr Nyandoro of Hamunakwadi, Nyandoro and Nyambuya responded to the charges as follows:-

“Your letter dated the 16th date of June 2011 to our client Patrick Marufu is noted and the same has been referred for perusal and appropriate response.

We are instructed to respond thereto as follows:

Our client denies all the charges and allegations levelled against him in toto. Our client is further prepared to outline his defence at the hearing of this matter once he is notified of the disciplinary hearing date.

In any event our client is surprised beyond measure by letter of suspension given that he has done and executed all his duties above board.

Our client ...........”

On the day of the initial hearing Applicant was still legally represented by Mr Nyandoro. Charges were read to the parties and Applicant indicated he fully understood the charges. He denied all the charges. Applicant through his lawyer cross-examined complainant at length and at the end of cross examination on each charge Mr Nyandoro made submissions in respect of each charge. At the end of the cross examination, he made submissions in conclusion.

“the allegations were not premised on any document to substantiate them ....... a determination was supposed to be made on what had been placed before the Committee and that further investigations cannot be done. The complainant was very clear that she was not going to disclose source of information and that needed to consult  further.

There is no case proven.”

After this closing submissions by Applicant’s lawyer, the complainant and him, were excused from the hearing to allow the Committee to deliberate. It is at this juncture that Applicant’s Legal Practitioner should have objected and insisted on giving evidence in chief. He did not. Neither was it one of his grounds of appeal to the Disciplinary Appeals Committee and this Court.

Taking all this into account, can it be said that the audi alteram parterm rule was not complied with? Can it be said that by not giving evidence in chief, Applicant was prejudiced?

The answer to these two questions is in the negative.

That being the case I do not believe that Applicant has an arguable case on appeal.

It was Applicant’s Legal Practitioner’s submission that it was clumsy the way issues were presented to this Court and had the Court been presented with all these issues it would have come to a different conclusion.

With this submission can the Court be faulted for confirming the decisions of the tribunals aquo? It is trite that a Court cannot be attacked for failure to determine issues that were never placed before it.

See: S.T. CHIKANDA VS UNITED TOURING COMPANY LIMITED SC 7/99 at page 3 – 4.

“the function of the Tribunal was to deal with the appeal on the basis of the grounds of appeal raised by the Appellant ........

If the argument was not raised before the Tribunal, the Tribunal cannot be faulted for not dealing with it.

It cannot be a ground of appeal from the Tribunal that it did not deal with a matter it was not asked to deal with”.

Applicant’s submission explains his prayer. He wants to have a second bite to the cherry.

As for the penalty, the two acts of misconduct each call for a dismissal penalty if one is found guilty. This is not disputed. Respondent exercised its discretion and imposed the dismissal. There was no basis for this Court to have interfered with the Respondent’s exercise of discretion in this regard.

Overally I find that Applicant has no arguable case on appeal as such there are prospects of success.

Accordingly leave to appeal to the Supreme is hereby denied.

Matsikidze and Mucheche – Applicant’s Legal Practitioner

T.E. Gumbo (Nyemba & Associates) – Respondent’s Legal Practitioner