Roy Nyabvure v J. Duve N.O. and City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/178/2020
HARARE, 22 JUNE 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/178/2020

HARARE, 22 JUNE 2020				       CASE NO. LC/H/REV/123/19

AND 31 JULY 2020

In the matter between:-

ROY NYABVURE							Applicant

And

J. DUVE N. O.							1st Respondent

CITY OF HARARE							2nd Respondent

Before Honourable B.T. Chivizhe, Judge

For Applicant 		Mr. O. Marwa

For Respondent 		Mr C. Kwaramba (Legal Practitioner)

CHIVIZHE, J:

This is an application for review in terms of Section 89(i)(di) and 92 EE(i) of the Labour Act [Cap 28:01] as amended by the Labour(Amendment) Act 5 of 2015 and as also read with rule 20(I) of the Labour Court  rules, 2017.

IN LIMINE

The Applicant through his heads of argument took a point in limine that the Respondents  were improperly before the court and were technically barred. It was Applicant contention that in terms of Rule 20(2) of the Labour Court Rules 2017, a Notice of Response to an application for review has to be filed within ten days of the date of receipt of this application. In this case the Respondents  having been served with the application for review on the 17th of December, 2019 were required to have filed their response within ten days of that date. The Respondents had however filed their Notice of Response on the 1st of January 2020 clearly out of time. It was Applicant’s submission that Respondents were therefore automatically barred. The Respondents had also not filed any application for condonation. In the circumstances the Respondents being technically barred before the court the court was urged to treat the matter as unopposed. The Applicant relied on the authority of Reverend Clement Nyathi and others vs Tony Tshuma HB105|15; Satellite television vs P.T.C 199(2)ZLR 226(H).

At the hearing of the matter on the 15th of June, 2020 parties agreed to have the matter determined on the merits. The preliminary point is therefore considered as abandoned by the Applicant.

GROUND FOR REIVEW

The application was filed on the basis of only one ground which reads as follows;

“1.	The decision of the Disciplinary Committee of the Second Respondent  chaired by the first Respondent  to dismiss the Applicant from employment with effect from the 31st of October 2019 is grossly irregular in that;

The Applicant was not given an opportunity to argue and present his case as provided for by the law. There was a failure to observe basic rules of nature by the Disciplinary Committee as the hearing was held in his absence”

SUBMISSIONS BY THE PARTIES

The Applicant, submitted in his heads of argument that there was a gross irregularity in the disciplinary proceedings convened by the Respondent. The gross irregularity was arising from the basis that he was not given an opportunity to argue and present his case as provided for by the law. In other words he had not been offered the right to be heard as the Respondent had proceeded to hold the hearing in his absence.

Mr Marwa, in oral submissions, explained the background circumstances leading to the conducting of the hearing in Applicant’s absence. The Applicant had received notification on the 21st of October, 2019 through his Legal Practitioner’s office. The hearing had been scheduled for the 24th of October 2019. It however so happened that all the legal practitioners from the Law firm i.e. Rubaya and Chatambudza were in Bulawayo at the material time attending a very important criminal matter involving one of the senior partners. (Applicant tendered a copy of the High Court decision in the matter in proof of this averment). It was Mr Marwa’s further submission that as a result of this position the notification of hearing had only come to the attention of Applicant’s Legal Practitioner on the actual hearing date, that is on the 24th of October, 2019 after the Legal Practitioner was called by a Disciplinary Committee member. The Legal Practitioner had then sought a postponement through a letter which was delivered on the same date to the Disciplinary Committee.

Mr Marwa, submitted that against this background the Applicant was not in wilful default on the date of hearing. The court was urged to find that in light of the genuine absence of Applicant’s Legal Practitioner the Disciplinary Committee ought to have granted the postponement as sought. The Respondent had previously conceded to another request for postponement and on that occasion the parties had agreed to postpone to a mutually convenient date. It was Applicant contention that this ought to have been the approach taken by the Respondent on this occasion. Respondent had in spite of this previous practice failed to consult Applicant’s Legal Practitioner.

Mr Marwa also submitted in respect of the sick note which he tendered in evidence. It was his submission that the Disciplinary Committee ought to have excused Applicant from attending the hearing as the letter was effectively exonerating him from any strenuous activities. On this basis the court was urged to find that there had been a gross irregularity in that Applicant had been denied his right to be heard when the Disciplinary Committee decided to proceed with the hearing. The court was urged to grant relief to Applicant so that Applicant could be granted an opportunity to present his defence to the matter.

The 1st Respondent, who was the Presiding Officer, did not file any papers in opposition. This was to be expected as he is only cited as a nominal Respondent. He is therefore under no obligation to file opposing papers. The 2nd Respondent filed a Notice of Response as well as heads of argument. The gist of the 2nd Respondent submission is that there was no irregularity in the disciplinary proceedings convened against the Applicant.

It is 2nd Respondent contention that the factual circumstances indicated that Applicant had previously sought a postponement and it had been granted. The Applicant had thereafter been notified in writing of the new hearing date i.e. 24th October, 2019. The letter was duly served upon his legal practitioners. Despite the notification Applicant failed to attend. The Disciplinary Committee in view of  the absence of Applicant and his Legal Practitioners decided to proceed with hearing as provided in the relevant code of conduct i.e. 11.6(9) of Statutory Instrument 13 of 2015. The 2nd Respondent submission is based on these factual circumstances there was no irregularity in the proceedings.

Mr Kwaramba, in oral submissions elaborated on the nature of application before the court. It was his submission the application before the court was a review application it was not an application for rescission as the Applicant’s counsel seemed to suggest in his oral submissions and prayer. Being an Application for review a litigant is required to demonstrate that in this case, a fatal irregularity had been committed in the proceedings a quo. The Applicant in this case had failed to establish a fatal irregularity. The facts as outlined before the court did not establish that Applicant had been denied his right to be heard. The facts in the record disclosed that it was Applicant who had sought and been granted the first postponement. The matter had been postponed with suggested alternative dates for the hearing i.e. the 14th, 15th and 16th of October, 2019. The Applicant did not show up on any of the suggested dates. The Applicant had then been notified through a letter dated 21st of October 2019 of the new date of 24th October 2019 at 10.00am. Neither the Applicant nor his Legal Practitioners had appeared on the set date and time. There was no communication from Applicant or from his legal practitioners. The Disciplinary Committee had only received a letter from Applicant Legal Practitioners at 12.26 pm when the hearing had already commenced. The Disciplinary Committee decided to proceed with the hearing.

Mr Kwaramba submitted that against this factual background the court could not find any irregularity. The Disciplinary Committee could not be faulted for proceeding with the hearing. Mr Kwaramba also addressed the aspect of the sick note. He had noted contents of the sick note. He observed that the sick note did not state that Applicant was sick on the day of the hearing i.e. 24th of October 2019. It only referred to the off days from 30th to 6th October, 2019 which would have been the first day of the hearing. The Applicant had actually sought a postponement then which postponement had duly been granted. The sick note however did not explain why the Applicant and his Legal Practitioners had failed to advise the Disciplinary Committee in advance that Applicant was not well. It also did not explain why Applicant had failed to advise the Disciplinary Committee that his legal practitioners were otherwise committed in another hearing. In the absence of any explanation from the Applicant and his Legal Practitioners for their absence from the hearing the Disciplinary Committee was entitled to proceed with hearing.

Mr Kwaramba also referred to several authorities as cited in his heads of argument which authorities outlined the principle applicable with regard to the observance of the right to be heard as a component of natural justice. Respondent relied on Moyo vs Rural Electrification Agency SC4|14; Pacprint (Pvt) vs Pilani Kumbula and 10 others SC67|17. He further submitted that on the basis of the factual circumstances the Applicant’s right to be heard had not been denied to him. The Applicant had actually been offered the opportunity to make representation. He had however waived the right by failing to attend the hearing. Finally Mr Karamba submitted that on the basis of the cited authorities the court ought to find that the application was without merit and had to be dismissed with costs.

Mr Marwa, for the Applicant, in reply, submitted that the Applicant argument was that Disciplinary Committee had on previous occasions consulted his legal practitioners in arriving at a mutually convenient date for postponement. The Disciplinary Committee had not done this on this occasion. Their decision to proceed was therefore an arbitrary decision. The Applicant was therefore denied his right to be heard. There was a fatal irregularity in the proceedings as a result.

The applicant was on his part relying on Moyo vs Rural Electrification Agency SC 4/14 and Dombodzvuku and Another vs CMED SC 14.

THE APPLICABLE LAW

The application was placed before this court as an application for review. This court is empowered in terms of Section 92EE to review proceedings or decisions conducted or made in connection with the Labour Act [Cap 28:01]. Section 92EE provides as follows;

“92EE Grounds of review by Labour Court

Subject to this act and any other law, the grounds on which any proceedings or decision conducted or made in connection with this act may be brought on review before the Labour Court  shall be

absence of jurisdiction on the part of the Arbitral or adjudicating authority concerned;

interest in the cause, bias, malice or corruption on the part of the Arbitral or adjudicating authority concerning

gross irregularity in the proceedings or the decision of the Arbitral or adjudication authority concerned

nothing in subsection (i) shall affect any other law relating to the review of proceeding or decisions of inferior courts, tribunals or authorities.”

It is clear from the Applicant papers and submissions that the Disciplinary Committee’s decisions is challenged on the basis of irregularity in the decision. The irregularity that is relied upon by Applicant is that he was not afforded the right to be heard.

The concept of right to be heard which is also referred to as the audi alterem partem rule is a principle of natural justice. It is a cornerstone of our law. The right to be heard is however not an absolute rule of law. It can be waived or forfeited where the beneficiary is at fault. The principle was referred to in ZESA Enterprises (Pvt) Ltd vs Alloyce Roy Stevawo SC29/17 where Bhunu JA made the following remarks;

“The crisp issue for determination is whether the respondent was denied the right to be heard in the circumstances of this case.  The right to be heard is a fundamental cornerstone of our law.  It is a fundamental principle of the rules of natural justice forming the backbone of a fair hearing enshrined in our constitution as read with the Administrative Justice Act [Chapter 10:28].  The maxim that no one shall be condemned without being heard holds sway in our law.

The right to be heard is however not an absolute immutable rule of law.  It can be waived or forfeited where the beneficiary is at fault.  It is now necessary to ventilate the law and apply it to the undisputed established facts as narrated above.

Professor G Feltoe in his booklet, A Basic Introduction to The Administrative Law of Zimbabwe, states at p 18 that the principle of natural justice can be waived when he says:

“Clearly when a person is offered the chance to exercise one of the rights recognized as being part of the principles of natural justice and he declines to avail himself of this right, then he has waived his right.””

The principles as laid in ZESA Enterprises (pvt)ltd vs Alloyce Roy Stevawo SC29|17 were also followed in Pacprint (Pvt) vs Pilani Kumbula and 10 others SC67|17. Mavangira AJA writing on behalf of the Supreme Court stated as follows;

“The principle has also been laid in several authorities in this jurisdiction that where an employee fails to attend a Disciplinary Hearing he abandons his right to be present and the Disciplinary Committee is entitled to proceed with the hearing in his absence.”

In Moyo v Rural Electrification Agency SC 4/14 ZIYAMBI JA had this to say:

“The main point taken by Mr 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 concluded 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 the hearing. In these circumstances we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”

In Zesa Enterprises (Pvt) Ltd v Aloyce Roy Stevawo SC 61/16 MALABA DCJ (as he then was), citing Moyo v Rural Electrification Agency (supra), with approval, stated at page 5 of the judgment:

“Where a person wilfully defaults from attending a disciplinary 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 v Rural Electrification Agency SC 4/14 ….

He continued at page 6:

“The above sentiments were also echoed in the cases of St Johns Educational Trust v David Edward Gardner SC 26/08 and Gershum Hombarume v Zimbabwe Revenue Authority SC 20/14. It is therefore a cardinal principle of law that where a party deliberately absents himself or herself from a disciplinary hearing without leave, he or she would have waived his or her right to challenge the conduct of the disciplinary hearing.”

In casu the mere boycotting of their hearings by the respondents disentitled them from challenging the outcomes of the hearings or any procedure that may have been adopted during the hearings. By their non-appearance the respondents waived the right to defend themselves. On the other hand, by bringing the application for review they sought to defend themselves. In effect this translates to approbating and reprobating at the same time. The law does not countenance this prevarication. The two positions or stances are mutually exclusive and cannot co-exist.”

The main point taken by the Applicant in this case is that he was denied his right to be heard and as a result there was gross irregularity in the proceedings. The simple issue before the court is whether the Applicant was indeed denied his right to be heard in the circumstances of this case. It is clear upon a consideration of the parties submissions and upon a careful reading of the record of proceedings that the court is unable to find that there was a gross irregularity in the manner in which the proceedings were undertaken before the Disciplinary Authority and in the decision they arrived at.

It would appear the circumstances in this matter are on all fours with the matter in ZESA Enterprises (pvt)ltd vs Alloyce Roy Stevawo SC29|17. The record of proceedings clearly shows that notification of the disciplinary hearing was sent out. The notification was received at Applicant Legal Practitioners Office on the 21st of October, 2019. The hearing was scheduled for 24th of October, 2019. The Applicant has submitted that the notification did not come to the attention of his Legal Practitioner as he was in Bulawayo attending a very crucial matter involving one of the senior partners. All the Legal Practitioners at the law firm were in fact in Bulawayo attending to the crucial matter in the High Court. Whilst the averment made has indeed been supported by evidence it is however difficult to comprehend how the notification did not come to the attention of the Applicant’s Legal Practitioner. The law firm was not closed. There would have been other staff available at the law firm. Indeed the Applicant does not state that the notification was not received at the firm. It was received at the firm. What he is saying however is his Legal Practitioners did not immediately become aware of the notification. For that the Applicant cannot blame anyone. It would have been the responsibility of the person receiving the notification to alert Applicant Legal Practitioner in Bulawayo that notification had been received in respect of a matter which was scheduled to go to court in four days time. The fact that this did not happen is really unfortunate.

The Applicant has also referred to the short period of notification. The record however shows on the notification form which is a standard form that the notification is to be issued at least 3 days prior to the hearing. At the bottom of the form it is endorsed as follows; “Please note that if you do not attend the hearing after receiving this notification the hearing shall proceed without you to the possible detriment of your interests”

The Applicant has also made a separate submission that he was actually sick during the time. The Applicant referred to the sick note which was attached as Annexure ‘C’ to his papers. The Court agrees with the Respondent’s counsel’s submission that the sick note tendered in evidence by the Applicant does not assist his case. The sick note is dated 4th December, 2019. It refers to off-days from the 30th September 2019 to 6th October 2019 which is some time before the actual hearing date in issue i.e. 24th of October 2019. The record shows in any event that the Applicant did request for a postponement on the 6th of October 2019 which was the first day of the hearing. It was duly granted by the Disciplinary Committee. The sick note does not support the averment made by the Applicant that he was sick on the 24th of October, 2019. The Disciplinary Committee in the absence of Applicant and his Legal Practitioners was clearly entitled to proceed with the hearing, as provided under the relevant provisions of the Code of Conduct.

The Applicant has submitted that in the circumstances of his case he did not waive his right to be heard and there was reasonable cause for this absence. He submits that he requested for a postponement on the basis that his Legal Practitioners were not available. The facts however show that the request was made at around 12:26pm on the date of the hearing. It is common cause the Disciplinary Committee was at the time already hearing the matter. The Disciplinary Committee in making a decision on the date of hearing could not have guessed firstly, that he was sick, secondly, that his Legal Practitioners were otherwise committed. He also submitted that he ought to have been given an opportunity to engage another Legal Practitioner. This could only have been granted him had he appeared at the hearing. He did not. I can do no better than quote the words of Bhunu JA in ZESA Enterprises (Pvt) Ltd vs Alloyce Roy Stevano. Where he stated as follows;

“The facts before the court a quo established beyond question that the respondent was given notification of the hearing date.  He successfully negotiated for a date convenient to himself but defaulted on the date of hearing.  His request for a further compromise by email could not absolve him from attending the hearing unless it was granted by the employer.  By deliberately absenting himself from the hearing the respondent irrevocably waived his right to be heard.”

In all the circumstances I make a finding that the application for review has no basis at law and in fact. I accordingly dismiss the application.

Mbidzo Muchadehama & Makoni, respondent’s legal practitioners