Court name
Supreme Court of Zimbabwe
Case number
SC 38 of 2003
Civil Appeal 307 of 2001

Ramani v National Social Security Authority (07/01) (SC 38 of 2003, Civil Appeal 307 of 2001) [2003] ZWSC 38 (26 November 2003);

Law report citations
Media neutral citation
[2003] ZWSC 38




DISTRIBUTABLE
(32)



Judgment No.
SC 38/03


Civil
Appeal No. 307/01








NIXON
RAMANI v NATIONAL SOCIAL SECURITY
AUTHORITY








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & ZIYAMBI JA


HARARE,
JULY 15 & NOVEMBER 27, 2003








T Biti,
for the appellant





F
Girach
,
for the respondent









ZIYAMBI JA: The appellant, who
was employed by the respondent as a compliance inspector was, in
August 1999, suspended from duty
with full benefits pending the
outcome of disciplinary charges to be brought against him. The
charges were set out in a letter
to the appellant dated 16 August
1999, in which the appellant was charged with misconduct arising from
the falsification of
travel and subsistence claims which he made to
the respondent. A disciplinary hearing was held on 24 September
1999, the appellant
being represented by his legal practitioner.
The appellant was found “guilty” of the offences charged, but no
penalty was imposed
as the committee was split on the question of the
appropriate sentence. It was therefore decided by the respondent to
refer the
matter to the labour relations officer for determination.







Meanwhile, on 17 November
1999, and before the issue was resolved by the labour relations
officer, fresh misconduct charges were
brought against the appellant.
These were serious charges, as will be seen from the letter to the
appellant dated 17 November
1999:






After
carrying out investigations, you are hereby charged under Part II
section 6, subsection 32 (Bribery and Corruption),
subsection 33 (Extortion and Usury), subsection 8 (Conflict
of Interest), subsection 12 (Making Threats), subsection 20
(Inconsistent Conduct or Omissions) and subsection 23
(Falsifying Records) of the NSSA Code of Conduct. The above charges
arise from the following –






a) You induced an employer,
Mupfumi Commuters, into selling you a minibus which is an illegal act
for the purpose of personal gain.
This was done under the guise of
the Authority business, putting the employer in a disadvantaged
position when negotiating and
therefore the charge under section 6,
subsection 32.





b) You
committed an offence under section 6, subsection 33, when
you demanded a bribe of $50 000.00 from the employer
before you
altered his contributions assessment from $2 271 560.83 to
$49 976.26.





c) Your
business undertaking is at (sic) direct conflict with the interests
of the Authority as your duties require you to enforce
and/or police
contributions payments to NSSA, and further to that you are running
an unregistered business and therefore the charge
under section 6,
subsection(s) 8 and 20.





d) You
used threats to induce the employer into selling you a minibus.
This is an offence in terms of section 6, subsection 12
(Making Threats).





e) You
falsified the employer’s contributions assessment in order to
compensate for a bribe and therefore the charge under section 6,
subsection 23 (Falsifying Records).





f) You
visited the employer in October 1999 purporting that you were
representing the Authority, when you are on suspension pending
the
determination of another misconduct charge which is … inconsistent
conduct in terms of section 6, subsection 20.





g) Your
conduct when you dealt with the employer is discreditable and thus
throwing the Authority’s image into disrepute.”







A hearing date was set initially
for 24 November 1999 and the appellant’s legal practitioner
was so advised. There followed
communications between the
appellant's legal practitioner and the respondent, the purpose of
which was to enable them to arrive at
a date which was convenient to
the appellant’s legal practitioner (“Zviuya”) who was stated to
be attending a Law Society Summer
School from 25-28 November
1999. As a compromise, the matter was set down for 29 November
1999, as advised by the respondent
in its letter dated 25 November.
Further argument as to the convenience of that date to Zviuya
ensued. Thereafter the parties
differ as to what occurred. Zviuya
said that it was agreed between him and Mr Gombiro (“Gombiro”)
for the respondent that
Gombiro would telephone him when he returned
to his office on 29 November to arrange a trial date.
Mr Gombiro, on the
other hand, states that there was no such
agreement and that he made it quite clear to Zviuya that the hearing
would take place
on 29 November as scheduled, whether or not the
appellant or his legal practitioner was present. He said that this
was confirmed
in his letter dated 26 November, which is
Annexure P to the papers. The letter was received at the
offices of the appellant’s
legal practitioners on 26 November
at 4.30 pm. It contains on the face of it an endorsement that
it was “noted” and
a memo “to JZ, this is urgent”. It read
as follows:







“I refer to our telephone
conversation on 25 November 1999 when you advised that 29 November
1999 is not a suitable date for you
as you will be tired after
attending your Summer School at Montclair Hotel from 25-28 November
1999.










Please be
advised that the Authority rescheduled this hearing twice in order to
accommodate you. Therefore should you fail to attend
the hearing
scheduled for 29 November 1999 at 9.30 am the Authority
will proceed with the case
in
absentia










It seems unlikely that Zviuya was
not advised of the letter by his office.







On 29 November 1999 the
disciplinary committee, properly constituted in terms of the Code of
Conduct governing the parties, presented
itself for the hearing.
Neither the appellant nor his legal practitioner was present. The
chairperson commenced the proceedings.
At this stage the three
workers’ representatives on the disciplinary committee expressed
their unwillingness to proceed with
the matter in the absence of the
appellant and walked out. The remaining members of the committee
were of the view that the hearing
should proceed in the absence of
the appellant. They therefore proceeded with the hearing while the
worker representatives walked
out. The three members of the
disciplinary committee concluded that the appellant was guilty of the
acts of misconduct charged
and dismissed him.






According to
Zviuya, he did not attend at his offices until 1
st
December, when he saw Annexure “P” and, on enquiring, was advised
that the hearing had taken place on the 29
th
November.







The appellant filed an
application in the High Court on 26 January 2000 for a
declaration that both decisions were null and void
and for
reinstatement to his post with full benefits. The learned judge
dismissed the application on the grounds that the appellant
ought to
have exhausted his domestic remedies as provided in the Code of
Conduct governing the parties (“the Code”). He granted
leave to
the appellant to appeal out of time to the General Manager in terms
of the Code. It is against the judgment of the High
Court that the
appellant now appeals.







The decision
by the learned judge not to exercise his review jurisdiction in
respect of both matters was criticised by the appellant.
Mr 
Biti,
for the appellant, submitted that the court erred in holding itself
as having a discretion as to whether to exercise its jurisdiction
in
this matter. Further, he argued, even if the court did have a
discretion, it was wrongly exercised in both cases. In his grounds
of appeal, the appellant urged this Court to find, in respect of
the first matter, that the court
a quo
erred in not finding as a question of law that the reference to the
labour relations officer in terms of s 101(6) of the Labour
Relations Act [
Chapter 28:01]
was unlawful; and, secondly, that the question of the unlawful
reference to the Ministry of Labour was an issue that could be
proceeded
with internally in terms of the Code.







In respect of
the second decision he urged the Court to find that the court
a quo
erred, firstly, in holding there were no special circumstances
justifying the exercise of its review jurisdiction in that matter;
and, secondly, in treating the rule obliging exhaustion of domestic
rules as a substantive rule of law and not merely as an adjectival
tool in administrative law. I deal with these submissions in the
ensuing paragraphs.







THE DISCRETION OF THE COURT







That the High
Court does have a discretion as to whether it will exercise its
jurisdiction to entertain an application of this nature
is beyond
question. See
Chikonye
& Anor v Peterhouse

1999 (2) ZLR 329 at 330 D-E, where it was said:







"… it has not proved easy
over the years to formulate a definition of the circumstances in
which a litigant in the labour relations
system may by-pass that
system by taking the case to the High Court, whether by way of review
or, as in this case, by way of seeking
a declaratory order.







It is
accepted that the High Court has a discretion, to be exercised, of
course, judicially
.
There is no statutory ouster of the court’s jurisdiction pending
exhaustion of domestic remedies. This has been noted in such
cases
as
Tutani
v Minister of Labour & Ors

1987 (2) ZLR 88 (H) at 95D;
Musundu
v Chairperson of Cresta Lodge Disciplinary & Grievance Committee

HH-115-94;
Zikiti
v United Bottlers

1998 (1) ZLR 389 (H) at 392F;
Mudakureva
v Grain Marketing Board

S-15-98 at p 3;
Nhidza
v Unifreight Ltd

S-27-99; and
Girjac
Services (Pvt) Ltd v Mudzingwa

1999 (1) ZLR 243 (S). In the
Girjac
case, it was said that a litigant should exhaust his domestic
remedies unless there are good reasons for approaching the court.

Also in this Court, it has been said that ‘domestic tribunals’
should not be by-passed without good reason; one such reason
would be
lack of jurisdiction on the part of the tribunal – see Munyira
v Secretary for Education & Public Service Commission

S-214-98 (not reported), which relied for the proposition on Baxter
Administrative
Law

pp 720-721". (emphasis added).







It remains to
be considered whether the learned judge exercised his discretion
wrongly, as urged by the appellant. A reading of
the judgment
discloses no support for Mr 
Biti’s
submission. It was contended that the respondent, in dismissing the
appellant, had not followed the provisions of the Code and
that
accordingly the proceedings resulting in the dismissal of the
appellant were a nullity. In this regard, it is necessary to
examine what actually happened on that day. The disciplinary
committee which met to determine the matter was properly constituted.
The appellant was not present. A debate took place as to whether
or not the hearing should take place in his absence. There
was a
difference of opinion. What happened next was an occurrence which
was not provided for in the Code. Three members of the
committee,
the workers representatives, walked out. They ought not to have
done so. Their presence on the disciplinary committee
was "to
ensure that the interests of the accused employee are fairly
represented and safeguarded" (see clause 11 of the
Code). They
have no power to veto or boycott proceedings of the committee. If
they had any objections, these were to be made
at the hearing and
recorded. The walk-out by the workers’ representatives was
calculated to frustrate the disciplinary proceedings.
They have no
power to do so. In view of the silence of the Code on the procedure
to be adopted in such an eventuality, the remaining
members continued
with the hearing and reached a conclusion. The proceedings cannot
in the circumstances be said to be a nullity.
This is not a case
where the respondent acted in total disregard of the provisions of
the Code of Conduct, as was the case in
Mugwebie
v Seed Co Ltd & Anor

2000 (1) ZLR 93 (S). Rather, in this case, the respondent did all
that was necessary on its part to comply with the requirements
of the
Code.







The learned
judge carefully considered whether or not he should exercise his
jurisdiction. He was alive to the principles enunciated
in the
Girjac
case
supra
that a litigant should exhaust his domestic remedies unless there are
good reasons for approaching the court. (See also
Chikonye
v Peterhouse supra)
.
After considering the actions of the disciplinary committee in the
light of the complaints made by the appellant he said:



“I
don’t regard the failures I have indicated as establishing special
reasons for this court exercising its review jurisdiction at
this
stage. As I have said, in my view what is generally required is
that the hearings referred to in the Codes of Conduct or Labour
Relations Act should take place with the appeals within those
contexts unless there are special circumstances as described by the
Supreme Court and I do not consider that special circumstances exist.
It seems to me that my approach in this matter is squarely
in line
with the approach by the Supreme Court in the case referred to
Girjac
v Mudzingwa Services

1999 (1) ZLR 243 and the facts certainly of the second allegation
seem to me to come within the general sort of approach as laid
down
by the learned CHIEF JUSTICE in that matter.







My view overall is that the
applicant has not exhausted domestic remedies, those domestic
remedies are available. I do not consider
that the sort of relief
that the applicant seeks would not be available through those appeal
hearings."






He
concluded that the appeals procedure provided in the Code - an appeal
to the general manager, then the board and, finally, to
the then
Labour Relations Tribunal - was adequate to redress the grievances
which the appellant complained of and that no special
circumstances
had been shown which would justify the exercise of his review
jurisdiction in either of the matters.






I agree with
the learned judge that the system provided for rehearing where the
appellant's defence, if any, could be aired. I use
the words “if
any” advisedly because the appellant has not indicated what his
defence is to the serious allegations made against
him. The learned
judge exercised his discretion judicially and did not misdirect
himself. It cannot be said that no reasonable
court would have
arrived at the conclusion that he did and, whatever the views of this
Court on the matter, we cannot substitute
our discretion for that of
the learned judge. See
Barros
v Chimphonda

1999 (1) ZLR 58 (S).







WHETHER THE REFERENCE OF THE
DISPUTE TO THE LABOUR RELATIONS OFFICER WAS UNLAWFUL







Subsections
(5) and (6) of section 101 of the Labour Relations Act [
Chapter
28:01
]
(“the Act”) provide as follows:



“(5) Notwithstanding this
Part, but subject to subsection (6), no labour relations officer
or senior labour relations officer
shall intervene in any dispute or
matter which is or is liable to be the subject of proceedings under a
code; nor shall he intervene
in any such proceedings.














(6) If a
matter is not determined within thirty days of the date of the
notification referred to in paragraph (e) of subsection (3),
the employee or employer concerned may refer such matter to a labour
relations officer, who may then determine or otherwise dispose
of the
matter in accordance with section
ninety-three










Subsection (5) precludes the
labour relations officer from intervening in any matter which is, or
is liable to be, subject to
proceedings under a Code save where the
matter has been referred to it by either party in terms of subs (6).






It is common
cause that the first hearing was conducted in terms of the Code, and
a conclusion reached as to the appellant’s guilt
within thirty
days. However, because the committee was unable to agree on the
appropriate sentence to be imposed, the matter was
referred to the
labour relations officer for determination. This referral was
within the respondent’s, rights as can be seen
from subs (6)
supra.
Although the conclusion as to his guilt was reached within thirty
days, it cannot be gainsaid that the matter was not concluded
in
thirty days.







It was contended on behalf of the
appellant that the conclusion as to the guilt of the appellant was a
determination in terms of
subs (6) and that accordingly the
labour relations officer had no jurisdiction to entertain the matter
but, to my mind, the
common sense view is that without the sentence
or penalty the matter was not finalised by the disciplinary
committee. Accordingly
there was, in my view, no determination in
terms of subs (6) and the reference to the labour relations
officer was lawful.











This
finding makes it unnecessary to deal with the second ground of appeal
in relation to the first decision.










THE CORRECTNESS OF THE
DECISION TO DECLINE JURISDICTION







The first decision has already
been found to have been correctly referred to the labour relations
officer. In the premises, the
refusal by the court to review the
matter in respect of which a decision was pending before another
tribunal was proper.







As to the
second matter, the criteria for determining when it is appropriate
for the High Court to exercise its review jurisdiction
in a case
where domestic remedies are prescribed in a Code of Conduct binding
upon an applicant for review were enunciated in
Girjac
supra
,
and the extract from the judgment of the High Court which is quoted
above shows that the learned judge was alive to these criteria.

The discretion of the learned judge having been correctly and
judicially exercised, it follows that the decision of the learned
judge to decline jurisdiction cannot in the circumstances be
impugned.







Accordingly, I have come to the
conclusion that the appeal cannot succeed and it is therefore
dismissed with costs.


















CHIDYAUSIKU
CJ: I agree.












CHEDA
JA: I agree.















Bere
Brothers
,
appellant's legal practitioners


Atherstone
& Cook
,
respondent's legal practitioners