Samuel Mahlupeka & 2 Ors v Hatcliffe High School Development Association

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/184/2020
HARARE, 28 FEBRUARY, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/184/2020

HARARE, 28 FEBRUARY, 2020		     	     CASE NO. LC/H/REV/59/19 (A)

AND 14 AUGUST, 2020

In the matter between:-

SAMUEL MAHLUPELA							1st Applicant

AND

GEORGE DANGAREMBIZI						2nd Applicant

VIOLA CHISENYE								3rd Applicant

Versus

HATCLIFFE HIGH SCHOOL DEVELOPMENT

ASSOCIATION								Respondent

Before The Honorable L. Hove, Judge:

For Applicants:				Ms S. Chihombe, Zimbabwe Educational

Scientific Social & Cultural Union

For Respondent:	Mr S. Mangoma, Zimbabwe School Development (Trade Unionist)

HOVE J:

This is an application for review.

The applicants were employees of the respondent. They were charged under section 4(b) of the Statutory Instrument 15 of 2006 [SI 15 of 2006] (the national code).

They sought to be represented by an official from Zimbabwe Educational Scientific Social Cultural Workers Union (ZESSCWU). The Chairperson of the disciplinary committee ruled that ZESSCWU was not a registered trade union and the official could not represent the applicants. The applicants were grieved by this decision and upon advise from their would be representative, they abandoned the proceedings. The hearing proceeded in their absence and they were found guilty and they were dismissed.

The applicants were dismissed on 19 March 2012. They registered the dispute with the National Employment Council for Welfare and Educational Institutions (NECWEI) a decision was made in their favour on 18 December 2014.

On 23 June 2015, the applicants referred the same dispute to the National Employment Council for Zimbabwe Schools Development Associations and Committees (NEC ZSDA/C).

Terms of reference before NEC ZSDA/C were “Alleged unfair termination of contract”.

When the matter came up for hearing, the respondent raised preliminary points which were;

failure to exhaust domestic remedies

That the Designated agent had no jurisdiction and

Terminal benefits had been paid

The designated agent made a finding that she had no jurisdiction and dismissed the applicants’s claims.

The applicants then filed this application for review.

The grounds for review are briefly that;

1)	The Designated Agent deviated from the terms of reference and dealt with issues that were not before her.

2)	The Designated Agent issued two contrasting rulings with the initial ruling in favour of the applicants then another one in favour of the respondent.

3)	The Designated Agent took a long time to finalise the matter and thus she was biased.

4)	The Designated Agent was biased in making the finding that she had no jurisdiction.

The court will first consider the 2nd preliminary point and that is that the

Designated Agent issued two contrasting rulings.

In the respondent’s opposing affidavit by Lawrence Mandevhani, the deponent

stated in paragraph 7 that;

“I am aware that the Designated Agent presided over only one ruling which is dated February 2019 and received by the applicants’ representative on 17 June 2019”.

The record however clearly shows that there are two decisions in the matter and both were issued by the Designated agent, one gives the date of ruling as 27 September 2018 and its filed as of record and it is in favour of the applicants. The other is on pages 8 to 12 of the record. It gives 5 February 2019 as the date of the ruling. This 2nd decision was now in favour of the Respondent. The Designated Agent acknowledged that she issued two

rulings on the matter although she states that the first ruling was made in error. The Designated Agent wrote to the applicants on 25 October 2018 to this effect (in part);

“a ruling was issued on the 27th of September 2018 in the matter Mahlupeka and 3 others versus Hatcliffe High School SDC. There was a typing pool error and rulings were swapped resulting to (sic) issuance of a wrong ruling to you.

This serves to withdraw that ruling. A fresh ruling will be served in due course”.

The Designated Agent could not competently withdraw a ruling which she made even if it was made in error. That decision is final. It makes the Designated Agent functus officio. A presiding officer cannot issue and withdraw a ruling. Once a ruling is made, it can only be set aside or upheld on appeal or on review. For the Designated Agent to withdraw a ruling by a letter to one of the parties, is highly improper.

The applicants acquired rights in terms of the first ruling and these rights could not be withdrawn for that would be contrary to the doctrine of functus officio. See Lapham v Minister of Mines and others 1989 (2) ZLR 56 (HC).

This doctrine provides that when a matter is pronounced upon, the functions of the Judicial body tasked with such pronunciation ceases and terminate by law, the matter cannot be related to again. See in this regard the cases of;

Commercial Farmers Union v Mhuriro and others 2000(1) ZLR 405

Harare Sports Clun and Another v United Bottlers Ltd 2000 (1) ZLR 264 (HC)

The Designated Agent had fully pronounced herself on the matter with the first ruling and could not in any way relate to the matter again.

The withdrawing and issuing another ruling was a misdirection on the part of the Designated Agent and it warrants interference by this court.

Having found thus, it becomes unnecessary to consider the other grounds for review. The application succeeds on this ground alone.

The law provides that where procedural irregularities have been established as is the case in casu, the court may hear the matter itself in a procedurally correct manner to cure the irregularities or remit the matter for the matter to be dealt with in a procedurally correct manner.

Dalny Mine v Musa Banda SC 39/99.

In view of the fact that this matter is long outstanding, the dismissal complained of is a 2012 dismissal, the court considers it expedient to hear the matter itself and to that effect, directs the registrar to set the matter before the Labour court.

Order

The application succeeds with costs.

The rulings by the Designated agent are set aside.

The Registrar will set the matter down for hearing before this Court.