Zvitadzo Mazana v African Sun Limited t/a Monomotapa Hotel

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/23/2020
HARARE, 2 OCTOBER 2019
CASE NO. LC/H/136/19
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/23/2020

HARARE, 2 OCTOBER 2019		           	  CASE NO. LC/H/136/19

AND 31 JANUARY 2020

In the matter between:-

ZVITADZO MAZANA						Appellant

And

AFRICAN SUN LIMITED t/a					Respondent

MONOMOTAPA HOTEL

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr I. Mataka (Legal Practitioner)

For Respondent		Mr J Bakasa (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of the Appeals Committee dated 5 March 2019. The Appellant was found guilty of breaching Section E11 Category 5 offence number 2 i.e. “any conduct or omission inconsistent with the fulfilment, the express or implied conditions of his/her employment”. He was found guilty and dismissed from employment.

Brief Background

The Appellant was employed by the Respondent as a Night Auditor whose duties were to oversee and review front office operations. He was suspended in 2018 and the hearing date was set for 27 December 2018. The disciplinary hearing was put on hold until further notice and the suspension was uplifted. On the 2nd of February 2019 he received another letter requesting him to submit a report but in response he indicated that he was still waiting for the first hearing. A new date was set for 27 February 2019 but the matter was postponed to 2 March 2019. The Appellant appealed against the decision and the outcome dated 25 April 2019 was collected on 5 June 2019.

The grounds of appeal before this court are as follows,

The Respondent erred at law in falling into error of gross misdirection as to the facts which amount to a misdirection as to the law in assuming that the Appellant, was referring to other employee cases yet he was referring to his cases, yet two pending in gross violation of the Code of Conduct.

The Respondent erred at law in finding that the denial of the Appellant of access to crucial evidence in the form of an Audit Report, the sole source of evidence relied upon was proper.

The Appeals Committee for the Respondent erred at law in ruling contrary to the evidence relied upon the Audit Report which exonerated the Appellant.

The Appeal Committee erred at law in not finding that there was no evidence led in respect of all the counts levelled against the Appellant. In fact the counts were never prosecuted but the Complainant merely summarized the charge.

The Appeals Committee for the Respondent erred in not finding that there are counts which were disproved by the Appellant but still he was found guilty of such.

The Appeals Committee for the Respondent erred in not finding that at law the whole disciplinary process was a shame to the extent that the verdict and penalty reached is incompetent.

The Appeals Committee for the Respondent erred at law in rubber stamping a predetermined and too harsh a penalty given the circumstances of this case, in the unlikely event that he was found guilty proper.

The Respondent erred at law in proceeding to hear and determine the Appeal well after 30 days when they no longer had jurisdiction. The Respondent’s Code of Conduct states that all internal processes are to be completed within 30 days. From the time of suspension Appellant only received Appeal outcome on 5 June 2019.

In response the Respondent submitted that,

There were no 2 parallel disciplinary hearings and Appellant should have challenged this on review.

The denial of access to an audit report is a procedural issue which should not have been brought up on appeal.

Respondent led evidence against Appellant to prove its case.

Ground 5 is vague and embarrassing.

Ground 6 and 7 are vague and embarrassing.

The proceedings did not exceed (30) thirty days. This ground attacks procedure which cannot be done on appeal.

When the parties appeared before this court Mr Mataka indicated that Appellant,

was abandoning the point in limine on the Respondent’s locus standi because what was before the court was the decision of the Appeals Committee.

was disregarding/withdrawing ground 6 and 7. He also indicated that he was combining ground 1, 2, 3 because they had the same effect as they were pointing out at the issue of denial to accessing the Audit Report.  It was indicated that there was no ruling on that ground.

In brief the Respondent has submitted that the Appellant raised grounds of review and not appeal grounds.

What is to be decided is whether or not the Appellant raised grounds of appeal and whether there is any merit therein.

It is a trite principle of law that issues of procedure are raised by way of review as opposed to appeal. Professor Geoff Feltoe in his book Administrative Law Guide in Zimbabwe (4th Edition 2006) at page 44 states that,

“The remedy of review must not be confused with that of appeal. The main difference between these two remedies is that in an appeal what is in question is the substantive correctness of the original decision whereas on review the High Court is not delving into the substantive correctness of the decision but is only determining whether there were any reviewable procedural irregularities or any action which was reviewable because was ultra vires the powers allocated to the tribunal see Tselentis v Salisbury City Council 1965.”

Ground 1, 2, 3

The Appellant has submitted that he was denied access to the audit report and there was no ruling on the request for the audit report.

In my view this is a procedural issue which should not have been brought up on appeal.

Ground 8

The Appellant stated argued that the Respondent erred in not finding that there are counts which were disproved by the Appellant but still he was found guilty of such. This ground of appeal is vague. It does not state that which was disproved and the Appellant was found guilty of.

Ground 4

Appellant has submitted that no evidence was led in respond of all the counts levelled against the Appellant. He further argued that the counts were never prosecuted but the complainant merely summarised the charge. In my view this is another procedural issue that was raised by the Appellant which should have been brought on review.

From the foregoing this court finds that the Appellant did not raise proper grounds of appeal. I therefore order that,

The appeal be and is hereby struck off roll.

The Appellant shall bear costs.

Chambati & Mataka Attorneys, appellant’s legal practitioners

Nyamayaro Makanza & Bakasa, respondent’s legal practitioners