Court name
Supreme Court of Zimbabwe
Case number
SC 89 of 2004
Civil Appeal 388 of 2002

Air Zimbabwe (Pvt) Ltd. v Mnensa and Another (88/02) (SC 89 of 2004, Civil Appeal 388 of 2002) [2004] ZWSC 89 (31 October 2004);

Law report citations
Media neutral citation
[2004] ZWSC 89




DISTRIBUTABLE (77)














Judgment No
SC 89/04


Civil Appeal No 388/02

















AIR
ZIMBABWE (PRIVATE) LIMITED v (1) CHIKU MNENSA
(2) MAVIS MWARWEYE











SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
ZIYAMBI JA & MALABA JA


HARARE FEBRUARY 5 &
NOVEMBER 1, 2004








N. G. Maphosa,
for the appellant





K. Ncube, for
the respondent












CHIDYAUSIKU CJ: This is an appeal from a judgment of the High
Court (SMITH J). The court a quo ordered the reinstatement
of the respondents without any loss of benefits. The facts of the
matter are that the respondents were
employees of the appellant. In
or about November 2001 they were charged with misconduct in terms of
the code of conduct. The
allegations against the respondents were
that in the course of an illegal industrial action the respondents
evicted senior members
of the management of the appellant from their
offices.






On 15 November 2001 the respondents were suspended without pay and
other benefits. The letter of suspension reads as follows:-






“I make reference to my earlier letter on allegations of misconduct
leveled by the A/GM-HR & GM/OPS in which the above were
alleging
that you evicted them from their offices on Wednesday 14th
November 2001.





Your conduct, if
proven, constitutes a gross act of misconduct under Part 5 paragraph
3(b), and 3(n) of the Code of Conduct.





You are accordingly
suspended without pay and benefits with immediate effect, pending a
hearing to determine the case.





You are therefore
prohibited from entering the premises with immediate effect unless
otherwise advised in writing by me or your divisional
head.”











Thereafter, the respondents were charged with misconduct before a
disciplinary committee. The record is not very clear, but
it would
appear that the committee found the respondents guilty but could not
agree on the punishment to be imposed. The deadlock
was broken by
the Chairman, a member of management, using his casting vote in
favour of the guilt and dismissal of the respondents.






The respondents then,
in accordance with the code of conduct, appealed to the General
Manager. The General Manager set aside the
decision of the
disciplinary committee and ordered the matter to be heard de novo.
The determination of the General Manager reads as follows:-






“Having gone through the submissions made by counsel as the basis
upon which the proceedings should be nullified, it is my decision
that the appeal be upheld and that the matter be brought for a fresh
hearing.





Should it be necessary
for me to elaborate on the reasons therefore, I shall be pleased to
do so.”









The full and detailed reasons for the determination are not given.
The record however indicates that the proceedings were set aside
because the respondents were denied a proper hearing at the
disciplinary proceedings. In particular, the respondents were
denied
legal representation.





The General Manager
never considered the merits of the case. He set aside the
proceedings because of the alleged irregularity.
After the
proceedings were set aside by the General Manager the respondents
sought reinstatement. The appellant refused to reinstate
them.



The respondents
thereafter filed a court application in the High Court. In the
court application the respondents sought the following
relief set out
in the draft order:-






“IT IS ORDERED THAT:






  1. Second
    respondent be and is hereby ordered to reinstate applicant without
    loss of benefits.








(2) Second respondent will bear the costs of this application.”













In the court a quo the appellant (then respondent) raised the
issue of the propriety of the proceedings. In particular, the
appellant raised the
issue of whether the proceedings were a review
of the General Manager’s determination or an appeal against that
decision. That
issue was not dealt with by the court a quo.
No appeal has been noted against the failure to determine that
issue. This Court is therefore not seized with that issue.





It is not clear on what
basis the High Court assumed jurisdiction in this matter. In terms
of the code, an appeal lies to the Labour
Court from the General
Manager’s determination. No appeal lies to the High Court against
the General Manager’s determination.
This was not an application
for review.





Be that as it may the
issue that is before this Court and falls for determination is
whether the respondents were entitled to reinstatement
as ordered by
the court a quo. The question is, once the proceedings of
the disciplinary committee were set aside by the appellant’s
General Manager, were
the respondents entitled to reinstatement as
ordered by the court a quo? Or did the respondents revert to
suspension without pay and benefits as contended for by the
appellant. Mr Maphosa, for the appellant, submitted that
the court a quo erred in finding that the setting aside of the
respondents’ dismissal by Mr Chingwena (“Chingwena”)
automatically meant that
they were reinstated. He argued that
Chingwena was right in remitting the respondents’ cases for a fresh
hearing before the disciplinary
committee. In essence Mr Maphosa’s
submission was that, whenever disciplinary proceedings are set aside
because of irregularity without due consideration of the
merits, the
status of the employee reverts to the status quo ante. He
submitted that prior to the disciplinary proceedings the respondents
were on suspension without pay and other benefits pending
the
determination of the allegations of misconduct. This is the status
to which the respondents reverted upon the setting aside
of the
proceedings of the disciplinary committee. For this proposition he
relied on the case of Standard Chartered Bank of Zimbabwe Ltd v J.
Chikomwe and 211 Ors
S-77-2000.





In that case an
improperly constituted disciplinary committee upheld the decision of
hearing officers who had dismissed the respondents.
The workers
appealed to the Appeals Board which set aside their dismissal and
reinstated them on the ground that the disciplinary
committee had
been improperly constituted. Standard Chartered Bank appealed to
the Tribunal which confirmed the decision of the
Appeals Board on the
same ground. On appeal to the Supreme Court MUCHECHETERE JA agreed
that the proceedings should be set aside
on the same ground. The
court however ruled that the workers were not entitled to automatic
reinstatement. Their cases were remitted
for fresh hearing. At p
5 of the cyclostyled judgment the learned judge had this to say:-






“This is because reinstating the respondent in the circumstances
implies a finding that the respondents were innocent of the charges
of misconduct against them by the hearing officers. It should be
borne in mind that the respondents in their appeal to the Appeals
Board were mainly challenging the procedural irregularities in the
hearings before the disciplinary committee. The merits of the
cases
were not really challenged. The respondents in the appeal to the
disciplinary committees raised the merits and other related
issues
and a properly constituted disciplinary committee was to have
considered these. A setting aside of the proceedings of the
disciplinary committees should therefore lead the parties to the same
position before the hearing in the disciplinary committees
–
appeals before a properly constituted disciplinary committee.”












I agree with this approach. A person guilty of misconduct should
not escape the consequences of his misdeeds simply because of
a
failure to conduct disciplinary proceedings properly by another
employee. He should escape such consequences because he is
innocent.
There was no enquiry into the merits of the respondents’
conduct. The disciplinary proceedings were flawed. New
disciplinary
proceedings should have been instituted as was ordered
by the General Manager of the appellant. I do not agree that the
General
Manager did not have the power to order a new enquiry. The
General Manager was vested with the power to hear the appeal.
Remitting
a matter of a hearing de novo is inherent in the
power to hear an appeal. Failure to specifically provide for
remission of a matter does not, in my view, mean
that the General
Manager does not have such a power. The code does not specifically
provide that the General Manager can allow
or dismiss such an appeal.
To then argue that he does not have the power to allow or dismiss
the appeal is nonsensical. Remitting
a matter for re-hearing is a
power that is inherently associated with the power to hear an appeal.
I accordingly hold that the
General Manager of the appellant had
such power.





In concluding that
the respondents were to be reinstated the learned judge in the court
a quo reasoned as follows:-






“The respondents did not dispute that the applicants are still
employees of the second respondent. They agree that their dismissal
from the employment of Air Zimbabwe was set aside by Chingwena. It
is not necessary therefore to issue a declaratur to the effect
that they are still employees. It is necessary, however, to issue a
declaratur to the effect that they are entitled to their
salaries and benefits from 16 November 2001, the date of their
dismissal by the disciplinary
committee.





It is declared that
each applicant is entitled to his or her salary and other employment
benefits with effect from 16 November 2001.





It is ordered that the
applicants’ costs be paid by the respondents jointly and severally,
the one paying the other to be absolved.”









The position that the respondents occupied before their dismissal
is not disputed. They were on suspension awaiting the hearing
by
the disciplinary committee. The letter of suspension makes that
very clear. The disciplinary committee then dismissed the
respondents. This is where the court a quo went into
error. The respondents were on suspension prior to the disciplinary
proceedings. The respondents cannot be reinstated
without first
setting aside the suspension. The General Manager’s determination
did not set aside the suspension. The court
a quo did not
set aside the suspension. It merely observed, incorrectly, that the
code did not provide for suspension without pay.
The code does
provide for suspension without pay although the precise circumstances
are not set out, see p 217 of the record.





If the respondents’
cause of action was that their suspension was unlawful that is what
they should have pleaded in the court
application. Their case was
that they were entitled to reinstatement following the General
Manager’s determination. The General
Manager’s determination
did not set aside the suspension.





It was also argued
that the time limits set out in the code would not be met if a trial
de novo were to be ordered.




I am not persuaded by this argument. In my view the time limit set
out in the code would apply to the recommenced proceedings which
have
to be completed within the time frame set out in the Code.






Finally, the learned
judge in the court a quo was bound by the decision of this
Court in the Standard Chartered Bank of Zimbabwe Limited case,
supra, and should have ordered that the respondents revert to
the status quo ante which was suspension pending the
disciplinary hearing.





Accordingly the
appeal is allowed with costs. The order of the court a quo
is set aside and the following order is substituted:-






“The application is dismissed with costs.”












ZIYAMBI JA: I
agree





MALABA JA: I agree





Sawyer & Mkushi,
appellant's legal practitioners


Gill Godlonton &
Gerrans
, respondent's legal practitioners