Sheiby Maponga V ISB Securities

IN THE LABOUR COURT OF ZIMBABWE                      JUDGMENT NO. LC/H/182/2013
HELD AT HARARE ON 05 MARCH, 2013                     CASE NO. LC/ H/147/2011


In the matter between




SHEIBY MAPONGA                                   –              Appellant
And

ISB SECURITIES                                   –              Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant        -Mr T. Kutswa(Unionist)
For Respondent       - Mr H. Muchirewesi (Legal Practitioner)


MATANDA-MOYO, L.

      The brief facts are that the Appellant was employed as an agent or dealer

of the Respondent.       On 25 October 2010 Appellant was suspended from

employment using SI 15/06. He was suspended on allegations of contravening

sections 4 (a), (b), (d) and (f) of SI 15 of 2006. He appeared before a hearing

which found him guilty and dismissed him from employment.                      Appellant

referred the matter for conciliation. There was no settlement resulting in the

matter being referred for arbitration.         The Arbitrator confirmed Appellant’s

dismissal from employment.        The Appellant appealed to this court on the

following grounds;

   1) That the Arbitrator erred and misdirected himself in holding that the

      Certificate of Settlement dated 19 October 2010 was fully complied with

      despite evidence led to the contrary.
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   2) That the Arbitrator erred at law in holding that the Appellant was bound

        by the member’s rules yet the Appellant was a dealer (agent) of the

        member.



   The Appellant submitted that the Arbitrator erred in holding that the

Certificate of Conciliation dated 19 October 2011 was fully complied with. The

Appellant submitted that the evidence before the Arbitrator showed that the

Certificate of Conciliation was not complied with.                  It is common cause that

Appellant was initially charged and dismissed from work on 25 October 2010.

Appellant referred such matter for conciliation. Appellant had been dismissed

without a hearing having been conducted.                     The parties agreed that such

suspension and dismissal was unlawful. A Certificate of Settlement was issued

with the following;


         “1) Applicant (Appellant herein) to be reinstated with full salary and benefits with effect
             from Monday 25 October 2010.
        2) Employer to notify ZSE of decision to reinstate and further advise ZSE that the decision to
            terminate Mr Maponga’s contract had been done not in accordance with the provisions of
            the Labour Act
        3) The    letter to ZSE to be copied to Kamusasa and Musendo Legal Practitioners
            (Applicant’s lawyers)
        4) All salary and benefits in arrears to be paid on or before 25 October 2010.
        5) Employer to consider employee’s claim for motor vehicle maintenance expenses and a
            refund of $200-00 for tyres.
        6) Employer to furnish employee with a copy of a letter dated 28 July 2010 addressed to
            ZSE-------“


   It is the Appellant’s submission that the above agreement was not complied

with.    Appellant submitted that the Arbitrator erred in finding that the


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Certificate of Conciliation was complied with. Firstly the determination whether

a Certificate of Conciliation was complied with raises factual issues. An appeal

from an Arbitrator to this court lies on points of law, not on points of fact. See

Section 98(10) of the Labour Act (Chapter28:05). Such ground of appeal does

not raise a point of law and as such is improperly before me. The Appellant

failed to show which evidence was disregarded by the Arbitrator in arriving at

such a decision.



   Secondly the Appellant submitted that the Arbitrator erred at law by holding

that the Appellant was bound by the Member’s Rules yet the Appellant was a

dealer (agent) of the member. Appellant argued that Respondent realized that

and charged Appellant in terms of the National Code.         If Appellant was a

member he should have been charged under the Zimbabwe Stock Exchange

Code of Conduct and not under the National Code of Conduct.             Appellant

argued that he was only an agent or authorized dealer.



I have perused the Arbitrator’s terms of reference which were determine;

   1) Whether or not the complainant was unfairly dismissed;

   2) Whether or not the disciplinary panel was biased;

   3) Whether or not the Certificate of Settlement dated 9 October 2010 was

      fully complied with and

   4) The appropriate remedy of the employee.



   The Arbitrator found that the Appellant failed to follow the laid down

instructions and procedures of the Member’s Rules of the Zimbabwe Stock

Exchange Code of Conduct. Such failure to follow the instructions constituted


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disobeying lawfully given orders.              Appellant argued the Arbitrator erred in

finding him guilty of failing to adhere to procedures laid out in the Members’

Rules when Appellant was not a member.



   Respondent on the other hand argued that Appellant received training and

induction for trading on the exchange. He was trained in the Members Rules

and tested on his knowledge of such rules. Appellant obtained a licence under

the Securities Act (Chapter24:25) and is therefore a member of the Zimbabwe

Stock Exchange. The Appellant was bound by the Members’ Rules. Respondent

argued therefore that the Members’ Rules are binding an employee and agents

of members’.



   I have perused the Securities (Registration, Licensing and Corporate

Governance) Rules SI 100 of 2010 in particular Section 17 thereof which deals

with the conditions of licences. Section17 (1) (b) provides


      “it shall be a condition of every licence that-
      (a) ---------
      (b) The holder shall
          (i)comply with the Act and these rules and any other law or requirement applicable to him
          or her in relation to any licensable activity, as well as all the terms and conditions
          attaching to the licence.”



      I have also perused the Members’ Rules in particular the ‘Application’

section which provides;



      “APPLICATIONS


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         The Rules and usage of the Exchange shall apply to and be binding upon members of the
         Exchange and all persons claiming under the Rules and usage or where claim is derived from
         a member-----“



         Appellant argued that he is an agent of a member. He is therefore obliged

to observe the rules where he is acting for the member. I do not therefore find

fault with the Arbitrator’s findings that indeed the Appellant was bound by the

Rules.



         Of importance is that the Appellant is not challenging his guilt. He is

relying on procedural irregularities. His claim is deemed to fail when he failed

to show prejudice suffered as a result. See Nyahuma vs Barclays Bank (Pvt)

Limited S/C 67/05. The Supreme Court in the above case held that before a

party can succeed in setting aside proceedings due to a procedural irregularity,

such a party must show that he or she was prejudiced by the irregularity. The

Appellant herein failed to show such prejudice. It is clear from the evidence led

that Appellant is indeed guilty of the offences he was charged with. It is trite

that labour matters are determined on merits and not on technicalities.



I am thus satisfied that the Appellant was properly dismissed from employment.

Accordingly the appeal fails and is dismissed with no order as to costs.




Zimbabwe Labour Centre– Appellant’s Representative


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Mushangwe and Company- Respondent’s Legal Practitioners




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