Samuel Hova v PetroZim Line (Pvt) Ltd and 4 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/180/24
HARARE, 25 JANUARY, 2024
CASE NO LC/H/534/22
19 APRIL 2024
SAMUEL HOVA
APPLICANT
PETROZIM LINE (PVT) LTD AND 4 OTHERS
RESPONDENTS
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 25 JANUARY, 2024
19 APRIL 2024

JUDGMENT NO LC/H/180/24

CASE NO LC/H/534/22

SAMUEL HOVA

APPLICANT

PETROZIM LINE (PVT) LTD AND 4 OTHERS

RESPONDENTS

Before the Honourable G. Musariri, Judge:

For Applicant - Mr PG Mutasa, Unionist

For Respondents - Mr AK Maguchu, Attorney

MUSARIRI, J:

Applicant applied to this Court for the review of the decision by respondents’ Disciplinary Committee to conclude his hearing without hearing his evidence. The application was made in terms of Section 89(1)1d of the Labour Act Chapter 28:01. Respondents opposed the application. The basis of the application appears in the founding affidavit thus;
 “15. The hearing proceeded on the 30th of May 2022 with the complainant presenting his case and I pleaded not guilty to the charges and hearing was adjourned to 2 June 2022.

16. From 2,3,6,7,9,10,13,14 June 2022 the complainant presented his evidence and called witnesses.

17. On the 13th we requested for the hearing scheduled on the 15th of June 2022 to attend conciliation at the Ministry of Labour. See Annexure D.

18. On the 14th of June 2022 the committee proceeded to hear the matter in my absence despite the fact that the defence team had notified them of the meeting at the Ministry of Labour. The parties being myself and National Oil Infrastructure of Zimbabwe. See Annexure E.

19. This decision made of the committee was made without a properly constituted quorum as required by Section 9 of the Code. See Annexure F.

20. On the same day the committee made a decision to proceed to request that I submit closing submissions contrary to the dictates of the code of conduct Section 20(2)(c)(v) of the National Employment Council for the Zimbabwe energy industry code of conduct. See Annexure G.

21. On the 16th of June 2022 my representative wrote a letter to educate the committee on the dictates of the code of conduct and requested for a date to lead his evidence and call witnesses. See Annexure H.


22. On the 16th June 2022 I received an email from the secretary of the disciplinary committee advising me that we will proceed by way of submissions and that the submissions were due at 12:00 noon on the 17th of June 2022. See Annexure I.”

It is apparent that the Disciplinary Committee (DC) proceeded to conclude the hearing without affording applicant the opportunity to lead evidence. Respondents countered through their opposing affidavit as follows:

“5. In casu, the attached record of proceedings will show that the parties attended before the Disciplinary Committee for the continuation of the disciplinary proceedings on 14 June 2022. At the conclusion of the day’s business, one D Kamungeremu was leading evidence. The matter was adjourned while he was still on the witness stand and was being cross examined by Applicant’s Advisor. He was advised that he will continue to be cross examined on the next sitting…

6. As business ended, it was proposed that the hearing proceeds the next day at 1000 hours. In response Applicant’s advisor requested that the hearing be stood down to 16th of June 2022. His request was on the singular basis that the defence needed time to contact witnesses and prepare for the commencement of their defence. The case presenter argued that the matter should proceed the next day…

7. The committee referred and decided that the hearing should proceed.”

The Disciplinary Committee sat on the 15th June 2022 in the absence of applicant and his representative. They heard the remainder of Kamungeremu’s evidence and concluded by directing that the parties file written closing submissions.

Applicant highlighted the fact that the Disciplinary Committee heard the complainant’s 6 witnesses over 7 days. Yet the Disciplinary Committee was unwilling to postpone the case by just 1 day to allow him to call his witnesses and prepare his defence.
 Judging by the number of days and witnesses involved this was clearly a complex case. Yet applicant asked only for a day to call his witnesses. The request was denied and thereafter it was foreclosed by the order to submit written closing submissions. This was clearly unfair conduct by the Disciplinary Committee. They had a duty to be even-handed in their treatment of both parties. They gave the complainant ample time to present his case but effectively shut out the defence case without satisfactory reasons. This flies in the face of precedents such as:

**Rwodzi v Chegutu** HH 86/03

Per MAVANGIRA JA

“The *audi alterem partem* principle requires that the party or parties involved in the matter should be given the proper opportunity to present their cases before the administrative decision maker decides the case” Paragraph 3

“Further, and to compound it all, the applicant’s request for more time to prepare his defence and to arrange for legal representation, which was communicated before the hearing, was disregarded. The respondent thus proceeded to make a determination on the matter without hearing the applicant’s version.” Paragraph 4

**Dawn v Mbano** HB 119/17

Per MATHONSI JA

“The *audi alterem partem* rule is the corner stone of all civilised systems of justice without which courts of law may not dispense justice. It is a requirement that before a decision is taken which affects a person that person must be afforded an opportunity to make representations. That is the whole essence of due process.” Paragraph 5

**Conclusion**

It is concluded that the conduct of the disciplinary proceedings in **casu** by the Disciplinary Committee was tainted by gross irregularity by the failure to afford applicant the opportunity to present his evidence.


Wherefore it is ordered that,

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

2. The disciplinary proceedings (and their outcome) by respondents against applicant are set aside;

3. The matter is remitted to the 1st respondent for a re-hearing by a new Disciplinary Committee within the next 60 (sixty) days;

4. Pending the conclusion of the hearing applicant shall be deemed as suspended without pay and benefits; and

5. If 1st respondent fails to comply with paragraph 3, it shall a) reinstate applicant without loss of salary and benefits; or b) pay applicant damages in lieu of reinstatement in a sum either agreed by the parties or assessed by this Court.

G. MUSARIRI
J-U-D-G-E
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