Stanbic Bank Zimbabwe Limited v Prodigy Chinanga and Elvis Mudzengerere

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT
NO.LC/H/285/25 CASE
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE, 2 JULY 2025

JUDGEMENT NO.LC/H/285/25 CASE NO. LC/H/364/25

In the matter between: -

STANBIC BANK ZIMBABWE LIMITED	APPLICANT

And

PRODIGY CHINANGA	1ST RESPONDENT

AND

ELVIS MUDZENGERERE	2ND RESPONDENT

BEFORE THE HONOURABLE KACHAMBWA J

For the Applicant:

For the 1ST Respondent:

For the 2nd Respondent:

E. Chagunda, Legal Practitioner

N.T. Marufu, Legal Practitioner

No appearance

KACHAMBWA, J:

THE REVIEW

1. This is an application for review of the decision that was made by the 2nd

Respondent on the 3rd of April 2025. The grounds for review are that:

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“1. That the 2nd Respondent in terms of the relevant law, did not have

jurisdiction at all to entertain the matter that was referred to him by the

Grievance and Disciplinary Committee, a committee set in terms of the

Code of Conduct of the Banking undertaking SI 273/2000, later on the

power to order the Grievance and Disciplinary Committee to re-

convene and rehear the matter. (my emphasis).

2. The decision by the 2nd Respondent is grossly irrational to the extent

that no reasonable person or Designated Agent exercising his mind

properly would have reached that decision.”

The applicant prayed for a setting aside of the 2nd respondent’s ruling with costs if the application was opposed.

FACTUAL BACKGROUND

2. On the 1st of September 2022, the 1st Respondent was charged for

contravening SI 273 of 2000 Category D (11)(1) of the Banking Undertaking

Code of Conduct (herein after referred to as “the Code”) which reads:

"Any serious act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract where such is not provided for under Category "A", "B" or "C”.

A Disciplinary Hearing was held. He was found guilty, and a penalty of dismissal

was imposed. He appealed the decision to the Grievance and Disciplinary

Committee (hereinafter referred to as the “GDC”). The GDC set aside the

decision of the Hearing Officer and ordered a hearing de novo.

3. The hearing de novo was set down for hearing on the 12th of October 2022.

The 1st respondent did not attend the hearing for unexplained reasons. The

matter was postponed to the 21st of October.In terms of the Code of Conduct.

On the 21st of October 2022, the 1st Respondent asked for a postponement to

allow him to make submissions, and the matter was postponed to the 28th of

October 2022.

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4. On the 26th of October 2022, whilst awaiting the Hearing of the 28th of

October 2022, the 1st respondent referred the disciplinary matter to the

Designated Agent (2nd respondent) in terms of Section 101 (6) of the Labour

Act [Chapter 28:01] (herein after referred to as “the act”).

Notwithstanding the referral, the matter was heard on the 28th of October. The

1st respondent was found guilty as charged, and following submissions in

mitigation, the 1st respondent was dismissed. Dissatisfied with the decision of

the Hearing Officer, the 1st respondent appealed to the GDC on the 2nd of

November 2022. The GDC referred the appeal to a designated agent

(hereinafter referred to as the DA) of the National Employment Council of the

Banking Industry. This was in terms of Section 109(6) of the Act.

5. Meanwhile, the 1st respondent had also approached the High Court for a

remedy. Following the dismissal of his case against the applicant at the High

Court on the 6th of February 2025, the 1st respondent wrote to the 2nd

respondent reviving the matter he had referred to the DA in terms of Section

101(6) of the Act on the 26th of October 2022. On the 14th March 2025, the

Applicant's legal practitioners and the 1st Respondent's legal practitioners

appeared before the 2nd Respondent, where they agreed that the 2nd

Respondent should determine two issues referred to him, namely;

(i) by the 1st Respondent on the 26th of October 2022; and

(ii) by the GDC.

On the referral made by the 1st respondent, the DA found that the matter had

been referred prematurely in terms of section 101 (6) of the Act.

As for the GDC's decision to refer or grant a relief of referring the matter to the

tribunal, the DA said that the Bank's GDC, as a tribunal of appeal, was limited

to allowing the appeal, dismissing the appeal, or remitting the matter for a

rehearing de novo. By granting the claimant's alternative relief by referring the

appeal back to the GDC for determination within fourteen working days, the

Bank's GDC acted ultra vires its powers and jurisdictional parameters. Section

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101(6) of the Act makes provision for either an employee or an employer to

refer the matter to a Labour Officer if the matter is not determined in terms of

the registered Code of Conduct within 30 days of the date of notification.

APPLICANT’S SUBMISSIONS

6. The applicant submitted that in directing that the matter should be remitted

to the GDC, the 2nd Respondent acted ultra vires his powers given by the Act,

which provides that where a matter is subject to being determined by a Code

of Conduct, the Labour Officer or a DA cannot interfere. The applicant further

added that, in any event, the 2nd Respondent, having accepted that he had

no powers to intervene, grossly misdirected himself by assuming powers or jurisdiction that he did not have when he referred the matter back for determination by the GDC. He should have ended at declining jurisdiction.

1st RESPONDENT’S SUBMISSIONS.

POINTS IN LIMINE

7. The 1st Respondent raised a point in limine that the applicant had

approached the court with dirty hands; therefore, the applicant should be barred from seeking review of the matter for want of compliance with the law. The dirty hands was that the applicant was in defiance of the Banking Industry CBA.

Section 5 of the Appendix IV of Statutory Instrument 273 of 2000, Collective

Bargaining Agreement: Banking Undertaking. The status of the 1st Respondent

as an employee under suspension entitles him to salary and benefits. He said

that the applicant’s suspension letter reflects the same. He said that contrary

to the law and the suspension letter, the applicant had not been paying him his dues since the 1st of November 2022, in total disregard of his suspended employee status.

MERITS

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8. On the merits, the 1st respondent submitted that the DA made a finding that

he lacked the jurisdiction to determine the matter on the merits, and not the

question of referrals by the employee and GDC. He said that by remitting the

matter back to the GDC to be decided on merits, the DA had considered that

the dismissal of the matter based on the question of referrals without deciding

the merits would have left the matter hanging. He further said that the DA’s order was judicious because it was spurred by the need to have the matter resolved to finality.

ANALYSIS

Did the applicant approach the court with Dirty hands?

9. The 1st respondent contended that the applicant approached the court

with dirty hands on the premise that he is under suspension and as an

employee under suspension he is entitled to salary and benefits as provided

for in Section 5 of the Appendix IV of the Statutory Instrument 273 of 2000,

Collective Bargaining Agreement: Banking Undertaking, and the applicant’s

suspension letter

10. He submitted that, contrary to the law and the suspension letter, the

applicant has not been paying him his dues since the 01st of November 2022,

the day he was suspended, in total disregard of the employee's status.

11.On the dirtyhands, the documents forming partof the record tell a different

story. The suspension letter shows that the 1st respondent was suspended on the 1st of August 2022. On the 1st of November, he was dismissed from employment after a finding of guilty of contravening Category D (11)(1) of the Code which reads, “any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract”.

12. The factual background shows that the 1st respondent never succeeded in

his appeal against the penalty imposed.

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Upon the filing and determination of this application, it is clear to the court that

the 1st respondent is not under suspension but is currently unemployed by the

applicant or was dismissed on the 1st of November 2022 by the applicant.

13. In 1. Richclover (Pvt) Ltd v Rambayi and Another 2. Rambayi v Royal Home

Furniture HH 269/24 Mutevedzi J, in explaining dirty hands referred to the case

of Deputy Sheriff, Harare v Mahleza & Anor 1997 (2) ZLR 425(H) where it was

said:

“People are not allowed to come to court seeking the court's assistance if

theyare guiltyofalack ofprobityor honestyin respectofthe circumstances

which cause them to seek relief from the court. It is called, in time-honoured legal parlance, the need to have clean hands. It is a basic principle that litigants should come to court without dirty hands. If a litigant with unclean hands is allowed to seek a court's assistance, then the court risks compromising its integrity and becoming a party to underhand transactions.”1

14. It is the failure to obey a previous order of the court that constitutes dirty

hands. The Judge also referred to Mafoshoro Farm (Pvt) Ltd v Hubert Nyanhongo & Tendai Mbereko HH-32-09, where it was said:

“Civil contempt is basically the wilful or mala fide failure to comply with

an order of court. There are three basic requirements for contempt

procedure that need to be proved, namely: -

1. That an order was granted by a competent court.

2. That the respondent was indeed served with the said order or that it

was brought to his attention; and

3. That respondent has either disobeyed it or has neglected to comply with it.”

15. In the case itself the court says that:

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“alitigantfailing toobeya courtorder standing on its own is notsufficient

to trigger the application of the dirty hands principle against thatlitigant.

There are requirements which must be satisfied. It must be proved that

the order was not only followed but that the non-compliance was

deliberate/wilful on the part of the transgressing party. In addition, the

defaultmustbe found tobe in bad faith.Some authorities have however held that once an applicant proves that the defaulting party failed to obey the court order which was brought to his/her attention, an inference that the default was both wilful and mala fide must automatically follow. See the cases of Scheelite King Mining Co. (Pvt) Ltd. v Mahachi 1998 (1) ZLR 173 (H) and Haddow v Haddow 1974 (1) RLR 5 at 7H-8A.”

16. The proceedings before the current application for review convince the

court that there is no court order directing the applicant to pay the 1st respondent any salaries or benefits. The parties went to arbitration before, and the claims were dismissed. The 1st respondent also approached the High Court for mandamus, and the application was dismissed as well. The court is satisfied that the applicantdid notapproach the courtwith dirty hands. The preliminary point is dismissed.

17. The preliminary point is also dismissible on the undertaking that it would not

be equitable to let the employee receive salary and benefits which he could find himself unable to reimburse should he be found guilty and dismissed. The Code itself is clear in section 7 (2) that “penalties may include suspension without pay, fines, or dismissal.” The first respondent’s claims stand dismissed in terms of the ruling of 28 November 2023. The 1st respondent does not have a clear claim that he can execute presently, and it would not be proper to keep the other party out of court. If the respondent has a claim, he has the opportunity to sue for it. This court cannot be used to explore such a claim at this point; consequently, the dirty hands principle is equally dismissed on this point.

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2. Did the Designated officer err by referring the matter back to the Bank’s

Grievance and Disciplinary Committee for a determination of the appeal, as

well as dictating the period the GDC was to hear the matter?

18. The applicant submitted that the 2nd respondent, having accepted that he

had no powers to intervene, could not at the same time assume powers or

jurisdiction which he did not have by referring the matter back to the Bank’s

GDC for a determination of the appeal and dictating the period within which

the GDC was to make the determination. The applicant, relied on the case of

Medicines Control Authority of Zimbabwe vToranga and Ors SC 10/17, wherein

Gwaunza JA (as she then was) stated that:

“Jurisdiction, in simple terms, can be defined as the power or

competence of a particular court or tribunal to hear and determine an

issue brought before it. A plea of jurisdiction, therefore, attacks the

competence of a court or tribunal to hear and determine the matter. It

follows that a court or tribunal that has no jurisdiction, for whatever

reason, to entertain a matter is not in a position to go beyond the

question of its jurisdiction to determine any other issues to do with the

dispute in question.”

19.The 1st respondentsubmitted thatthe 2nd respondent's saying “justice would

not be served if he usurps jurisdiction from the internal dispute resolution

mechanisms” cannotbe equated toa finding thathe lackedjurisdiction,given

the absence of an express statutory provision denying him the authority to refer

the matter back for determination of the merits.

20. The 1st respondent submitted that the 2nd respondent reasoned that the

GDC ought to have interrogated the appeal on both procedure and merits, as it was the rightful course instead of referring the matter to this tribunal. However, the tribunal desisted from discharging its obligation. Following that reasoning, the 2nd respondent, attempting to redress the matter, remitted the matter to the lower tribunal for determination on the merits. 1st respondent argued that this was within the 2nd respondent’s purview.

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However, the hearing itself shows that the DA held that section 101 (6) of the

Act says- either an employee or an employer may refer the matter to a Labour

Officer if the matter is not determined in terms of the registered Code of

Conduct within 30 days of the notification. The DA highlighted that the GDC

was neither employee nor employer but an impartial appellate tribunal with a

specified quasi-judicial function within an undertaking. Consequently, he found that the GDC had no scope to clothe him with jurisdiction.

By saying that the GDC could not clothe him with jurisdiction, the 2nd

respondent was saying he had no jurisdiction to hear the matter. The 1st

respondent is relying on semantics to take away from the import of the DA’s

findings.

By referring the matter back to the Bank’s GDC for a determination of the

appeal and dictating the period within which the GDC was to make the

determination, the DA usurped the litigants’ independence to decide how

they wished to proceed upon learning that the DA did nothave the jurisdiction

to hear the matter.

21. The law is clear. An order by an incompetent court not vested with jurisdiction is impotent.

In Dube v Maphepha 2009 (1) ZLR 29 the import of a lack of jurisdiction was

explained as follows:

“When a magistrates’ court does what is not within its jurisdiction, the result of what it purports to do is void and it is a nullity in law with no force or effect. No benefit can be derived from it. It has been repeatedly stated that it is like trying to build something on nothing and expect it to stand; it will collapse.”

22. The same conclusion can be seen to have been reached in foreign

jurisdictions. In Carneiro v The State ZASCA 154, the court referred to the case

of Communication Workers Union v Telkom SA Ltd 1999 (2) SA 586 (T),the Court

said:

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“A court must have jurisdiction for its judgment and/or order to be valid.

If the court does not have jurisdiction, its judgment and/or order is a

nullity. No pronouncement to that effect is required. It is simply treated

as such …”2

23. Similarly, in the Zambian case of Eastern and Southern Africa Trade v

Finsbury Investment Limited CAZ/8/85/2022, the court referred to the case of

JNC Holdings Limited, Post Newspapers Limited, Mutembo Nchito v.

Development Bank of Zambia, where the Supreme Court held inter alia that: -

"... it is settled law that if a matter is not properly before a court, that court has

no jurisdiction to make any orders or grant any remedies" "... it is clear from the Chituta and New Plast Industries case that if a court has no jurisdiction to hear and determine a matter, it cannot make any lawful orders or grant any remedies sought by a party to that matter."3

24. It is clear from case law that once the DA was convinced that he did not

have any jurisdiction, the matter should have been struck off for lack of

jurisdiction. He directly interfered with the case as he not only referred the

matter back to the GDC but also directed the GDC to hear the matter within 10 days after the order. The order, as shown by the foregoing case law, is void and has no effect. The DA should have ended at declining jurisdiction. He had no authority to give further directions.

Disposition.

After having looked at both parties’ arguments before this court, it is ordered

that:

1. The 2nd respondent’s decision issued on the 3rd of April 2025 be and is hereby set aside and replaced as follows:

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“ The matter is struck off for lack of jurisdiction.”