Thomas Mavhurumutse v Seedco Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/337/14
HELD AT HARARE 14TH MAY 2014
CASE NO
JUDGMENT NO LC/H/337/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/337/14

HELD AT HARARE  14TH MAY 2014			CASE NO LC/ORD/H/92/11

& 6TH JUNE 2014

In the matter between:-

THOMAS MAVHURUMUTSE				Appellant

And

SEEDCO ZIMBABWE (PVT) LTD				Respondent

Before The Honourable B.T. Chivizhe, Judge

For Appellant		Mr T Marume (Legal Practitioner)

For Respondent		Mr A Moyo (Legal Practitioner)

CHIVIZHE, J:

The matter was placed before me as an application for leave to appeal against a determination handed down by this Court on 31 January 2014.

The appellant is a former employee of the respondent.  He was charged with two acts of misconduct viz any act and/or omission inconsistent with the fulfilment of the express or implied conducting of his career or employment (Section 4 (a) of Statutory Instrument 15 of 2006, and or

Gross incompetence or inefficiency in the performance of his work.

He was found guilty on the charge.   A penalty of dismissal was consequently imposed.  The appellant brought an appeal to this Court.  In the determination handed down this Court upheld appellant’s dismissal from employment thereby concurring with the Hearing Officer’s findings that appellant was guilty on the charge of an act or omission inconsistent with the fulfilment of the express or implied conditions of his employment. The appellant by virtue of provisions in section 92 F (2) of the Labour Act, [Chapter 28:01] is seeking the Court’s leave to appeal that decision.

In the application proceedings before me the respondent took two

points in limine.  The first was that the application being an application made in terms of Rule 14 was not a proper application as the appellant had failed to utilise the requisite form, being Form LC1.  The second point was that the appellant had, contrary to the provisions in the rules of court, failed to file its heads within 14 days of being served with Notice of opposition.  The appellant was therefore technically barred and had no right of audience.  He also could not seek condonation from the bar.  The court was referred to decisions in Petras Mazibuko v Telecel Zimbabwe LC/H/30/12 and BGM Traffic General Control Systems v Minister of Transport HH 12 – 2009.

The  respondent upon an invitation by the court to respond, submitted that there is no format presented for an application lodged in terms of section 92 F (2) of the Labour Act [Chapter 28:01] i.e. an application seeking leave to appeal to the Supreme Court.  The practice in the court however is that applicants generally lodge chamber applications to the relevant judge from whom one is seeking leave.  In regards the second point counsel conceded that heads of argument were not filed in terms of the rules.   It was his submission however that in view of the established principle that labour matters ought to be settled on the merits rather than on technical merits the court ought to proceed to determine the matter on merits.  On that basis the court was urged to dismiss both points in limine.

The court, after considering both submissions allowed both points in limine and dismissed respondent’s submissions.  It was clear that the application, being an application made in terms of section 92 F (2) of the Labour Act [Chapter 28:01] is an application made in terms of the rules of the court.  Being an application in terms of the Rules it follows the format of that application has to be in terms of the Rules of Court.  The Rules of Court require that such an application has to be in Form LC 1.  The section is clearly COUCHEDin peremptory terms.  To allow a situation where legal practitioners are allowed to file applications anyhow would be tantamount to, as stated by Matanda-Moyo J in the Mazibuko decision  referred to supra,  reducing the court to a Chief’s  court.

In regards the second point in limine in terms of Rules of Court the respondent had to file heads within 14 days of being served with respondent’s Notice of opposition.  The heads had to be filed on or before the 7th April 2014.  The Heads were only filed on 25 April 2014.  The appellant clearly ought to have filed an application for condonation.  There was no application for condonation before the court.  To compound the situation this was not the first time the appellant had fallen foul of the Rules of court.  The appellant had previously failed to file heads of argument on time resulting in this court dismissing an earlier application.  The application had only been reinstated through an application for reinstatement which was granted on the 1st of May 2013.  Clearly the appellant had not learnt from his mistakes.  In the absence of an application for condonation the court allowed the two points in limine and the appellant being barred proceeded to receive submissions on the merits from the respondent.  I turn to consider these.

On the merits it is also very clear that the appeal has no prospects of success.  The appellant has raised three grounds of appeal.  The first ground is that the court grossly misdirected on the facts when it concluded the appellant was properly convicted on the charge.  That ground as correctly submitted by the respondent is not merited.  The Labour Court was sitting as an appeal court and not the trial court.  The court simply upheld the finding by the Hearing Officer that based on the facts and evidence presented before the Hearing Officer the appellant was properly convicted.  The ground clearly has no merit.

The second ground alleges that the court failed in its duty to interfere with the findings of the Hearing Officer.  The appellant has not indicated how the court erred and misdirected itself.   However it is clear the court decided on the basis the appellant failure to block the account which was a duty clearly imposed on him, that the Hearing Officer could not be faulted for his decision. The ground also clearly has no merit.

The last ground raised in the appeal relates to the penalty imposed by the Hearing Officer and upheld by this court.  The appellant alleges that the penalty meted was gross and in defiance of logic that no reasonable court sitting would impose the same.  Appellant alleges that by virtue of section 12 B (4) of the Labour Act [Chapter 28:01] this court ought to have weighed the fairness of dismissal against the mitigating factors prevailing.  That ground clearly also has no prospects of success.  It cannot be correct as alluded by appellant that the Court failed to weigh the aggravating features as against the mitigatory features.  One cannot assume because no specific reference is made to section 12 B (4) of the Labour Act in the judgment  then the Court failed to weigh same.  The Court, on the contrary, weighed both and the Court’s view was that the charge involving as it did a material breach of trust thus going to the root of contract then following the approach taken by Supreme Court in a pedigree of cases in 2012 the  dismissal penalty was clearly warranted.

There is in my view no likelihood of the Supreme Court arriving at a different decision from the one made by this Court.

The application for leave to appeal is dismissed with costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Kantor & Immerman, respondent’s legal practitioners