Court name
Supreme Court of Zimbabwe
Case number
SC 103 of 2002
Civil Appeal 229 of 2001

Chikuwe and Others v Guruve Rural District Council and Others (229/2001) (SC 103 of 2002, Civil Appeal 229 of 2001) [2002] ZWSC 103 (25 November 2002);

Law report citations
Media neutral citation
[2002] ZWSC 103


Judgment No S.C. 103\2002



Civil Appeal No. 229\2001


















ONISIMO CHIKUWE & 38
OTHERS v (1) GURUVE RURAL DISTRICT COUNCIL (2)
ZEKIS RABVU N.O. (3) DILLION
MVURWI N.O.











SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & MALABA JA


HARARE
SEPTEMBER 17 & NOVEMBER 26, 2002








H.
Simpson
, for the appellants





P.
Nherere
, for the respondents









ZIYAMBI JA: The first
appellant was the Chairman of the Workers Committee of the first
respondent. He and the 38 other respondents
were, on the 15th
May 2000, issued with letters of suspension from duty pending the
grant of authority, by the Ministry of Labour, for their dismissal.






Briefly, the events giving rise
to the suspensions were as follows. In or about the 19th
March 2000, the Works Council of the first respondent, which is
composed of equal numbers of management and employee representatives
decided to award to all the appellants, a salary increment of 69-75%
on a sliding scale with effect from the 1st January 2000.
However, on the 29th March 2000, the full council met and
decided that it could not afford such increases and instead awarded
an across-the-board increase
of 35% reviewable in June 2000. On the
same day, the Workers Committee advised the Council that workers
would go on strike on the
11th April 2000 should they not
have received the recommended 75% increase in salary. At the end of
March, the Council awarded a 35%
increase and the workers went on
strike on the 12th April 2000.






On the 28th April
2000, the 3rd respondent who is the Labour Relations
Officer at Mvurwi, issued an order referring the dispute to
compulsory arbitration and ordering
the employees to return to work
pending the decision of the arbitrator. This order was ignored by
the employees and on the 9th May 2000 a show cause order
was issued by the Minister of Public Service Labour and Social
Welfare requesting the employees to show
cause on the 12th
May 2000, and to return to work forthwith. Again, this order to
return to work was ignored. On the 12th May the hearing
to show cause was attended by representatives of the appellants. At
this hearing it was agreed as follows:-






“1. Workers must return to
work on Monday 15th May 2000.






2. Mr Sangarwe will relay the
agreement to the Workers Union representatives for their confirmation
and adopting.



3. The workers must report for
work not later than 10:am on Monday 15
th May
2000, before which time the Union Representatives must have confirmed
the agreement to the workers and the full Council meeting
on the same
day will be satisfied that the workers have returned to work.
”(My
underlining).









On the 15th May 2000,
the appellants gathered on the Council grounds. According to them,
they were willing to return to work but had no keys
to their offices.
However the respondents’ evidence was that the appellants had not
returned to work by 10 am so they were suspended
without pay pending
approval for their dismissal. The evidence for the respondent,
which was believed by the trial Court, was that
the appellants were
gathered under a tree some distance from the Council offices at about
8.30 am. They were chanting, holding
up placards and beating drums
as they had done since the first day of the strike. Their attitude
was hostile. When the Council
meeting began at 10.30 am to debate
the strike they had not gone to their offices and the Council
resolved to suspend them pending
approval by the Minister of Labour,
for their dismissal.






At the trial, the issue for
determination was whether the appellants had complied with the
agreement reached by the parties at the
Labour Relations Office,
Mvurwi, on the 12th May. The Court found that the
appellants had not so complied. A reading of the record of the
proceedings does not persuade me
to a different view. If the
appellants had no keys to their offices one would have expected them
to wait quietly outside their
offices (certainly not waving placards,
chanting and beating drums!) and to send one of their number to fetch
the keys. Their behaviour
cannot be said to evince an intention to
return to work.






Although ten grounds of appeal
were raised in the Notice of Appeal only one ground was addressed in
the appellants’ heads of argument
and advanced before us by Mr
Simpson on behalf of the appellants, namely, that the learned
Judge erred in dismissing the appellants’ evidence that they
returned to
work on Monday 15th May 2000 “simply because
they were allegedly singing and drum beating under a tree”. The
appellants, he submitted, gathered
around a tree because their
offices were locked.


However,
the first appellant’s evidence that the keys were held by Jaji and
that he could not get them from him as he was locked
in a meeting
with the Provincial Administrator, Erica Jones, was correctly
dismissed by the learned Judge. The appellants were
already
gathered under the tree at 8.30 am when Miss Jones arrived for the
Council meeting which was scheduled for 10 am. Jones
said she sat
in Jaji’s office to while away the time as they waited for the
meeting to commence. Assuming it to be true that
Jaji had all the
keys to the offices, there was sufficient time for the appellants to
get the keys from him if they so wished as
the evidence established
that Jaji arrived at his office between 7.30 and 7.45 am and the
appellants, who included the messengers
who cleaned the offices, were
already gathered under a tree at the Council premises. In any
event, the learned Judge found, and
correctly so in my view, that the
appellants were in possession of keys for their offices. Both Jaji
and Tauro gave evidence for
the respondents and were found to be
credible witnesses. Indeed, no argument was advanced by the
appellants against this finding.
The following passage from Tauro’s
evidence appears at p 323 of the record:-






“Q. And finally, the workers
say they could not have resumed work on the 15th because
the keys to the offices were locked what do you say to that?





A.
My lord our offices are situated outside the chamber, the main
chamber and the reception most of the officers here they had
their
keys with them and so if they were to resume work they would have
gone to their offices without problems save for someone who
would
have come to the section only. All heads of department had their
keys to their offices, that means the junior staff would
also have
went (sic) to their offices to start working. So they did not dare
to start work not that they did not have the keys.”








The
evidence clearly supports the finding of the learned Judge that the
appellants did not return to work. The appeal ought, therefore,
to
be dismissed.







Mr Nherere, urged the
Court to deal with the issue raised in the first two paragraphs of
the Grounds of Appeal notwithstanding that they were
not pursued by
the appellants.






Paragraphs 1 and 2 read as
follows:






“1. The
appellants were suspended by the 1
st
Respondent on 15
th
May 2000 with effect from 4
th
May 2000 without benefits and they applied to the court
a
quo
for an order
setting aside the suspension, not against their dismissal as it was
common cause between the parties that the appellants
were only
suspended and not terminated.






2. The Learned Judge erred and
misdirected himself in holding that the appellants were dismissed or
dismissed themselves as dismissal
was not an issue before his
Lordship in the court
a
quo










It was submitted by Mr Nherere
that the finding by the learned Judge that the workers were dismissed
is impossible to support on any version of the facts. The
issue
before the trial court he submitted, was what occurred on the 15th
May 2000, namely, whether the suspensions were unlawful.






There is merit in this
submission. The issue before the Court was the legality of the
suspensions. The order sought by the appellants
was that the
letters of suspension be declared null and void. No averment of
dismissal was made. Not only was there no evidence
to justify the
finding of dismissal, but the learned Judge was not called upon to
decide the issue of dismissal. It simply was
not an issue before
him. The letters of suspension clearly show that the intention and
decision of Council was to suspend the workers
pending approval for
their dismissal. That was common cause at the trial.






It seems to me that instead of
referring to the appellants as having been suspended from employment
the learned Judge erroneously
referred to them as having been
dismissed. Nevertheless his finding that, “by refusing to return
to work the plaintiffs repudiated
their contracts of employment”
does not amount to a misdirection since their refusal to return to
work was the basis on which
the appellants were suspended from
employment pending the grant of authority to dismiss them.






In the result, the appeal is
dismissed with costs.















SANDURA JA: I agree.














MALABA
JA: I agree.





























Mushonga
& Associates
, appellants’ legal practitioners





Chihambakwe,
Mutizwa & Partners
, respondents’ legal practitioners