Court name
Supreme Court of Zimbabwe
Case number
SC 85 of 2006
Civil Appeal 66 of 2006

Zimbabwe Revenue Authority v Mpindiwa (Civil Appeal No. 66/06) (SC 85 of 2006, Civil Appeal 66 of 2006) [2007] ZWSC 85 (16 July 2007);

Law report citations
Media neutral citation
[2007] ZWSC 85
















DISTRIBUTABLE
(71)


Judgment
No. SC 85/06


Civil
Appeal No. 66/06







ZIMBABWE
REVENUE AUTHORITY V LINDIWE MPINDIWA








SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ, SANDURA
JA & GWAUNZA JA


HARARE, OCTOBER 30,
2006 & JULY 17, 2007








P Machaya, for
the appellant





J Ndlovu, for
the respondent






SANDURA JA: This is an appeal against a judgment of the Labour
Court in terms of which the appellant (“Zimra”) was ordered
to
reinstate the respondent (“Lindiwe”) as its librarian, or pay her
damages in lieu of reinstatement.







The factual background is as follows. At the relevant time
Lindiwe was employed by Zimra as a librarian. On 29 July 2005
she was charged with two acts of misconduct in terms of Zimra’s
Code of Conduct (“the Code”). The details of the alleged
acts
of misconduct are not necessary for the determination of this appeal.







Subsequently, on 2 August 2005 Lindiwe appeared before Zimra’s
disciplinary and grievance committee for a hearing on the
misconduct
charges. After the hearing, she was found guilty of both charges,
and her employment contract was terminated with effect
from 4 August
2005.







Dissatisfied with that result, Lindiwe appealed to the appeals
committee on 6 August 2005, challenging both convictions.







Thereafter, the appeal was set down for hearing on 18 August
2005. However, on that date it was postponed to 19 August
2005
because certain relevant documents had not been placed before the
appeals committee.







On 19 August 2005 the hearing of the appeal was again postponed,
because one of the members of the appeals committee was not present.







However, the appeal was finally heard on 26 and 29 August
2005. What happened at the end of the hearing conducted on
29 August
2005 is indicated by the record of the hearing as
follows:






“The committee adjourned at 19.30 hrs and agreed to have minutes of
the proceedings typed and later come up with a final overall
verdict.”







After the appeal had been heard, the chairman of the appeals
committee (“the chairman”) wrote a letter to Zimra’s human
resources
manager on 7 September 2005. The relevant part of
the letter reads as follows:






“The committee did not reach a consensus on the various issues
under consideration in this case. …







From the deliberations of the appeals committee, I recommend that the
verdict passed by the disciplinary and grievance committee
be upheld
… .”







Six days later, on 13 September 2005, the chairman wrote
another letter to Lindiwe. The letter, in relevant part, reads
as
follows:






“I refer to the decision that is addressed to the human resources
manager that was also sent to you dated 7 September 2005,
informing you about the outcome of your appeal.







For the avoidance of doubt, this is to advise that after the
committee deliberated over the matter, I, as the chairman, have found
no reason to interfere with the decision of the disciplinary and
grievance committee.







This means that you remain dismissed. In terms of the Code of
Conduct you have a right to appeal against this decision to the
Labour
Court.”







Thereafter, Lindiwe appealed to the Labour Court. That court
found that the appeals committee had not determined Lindiwe’s
appeal. It then proceeded to determine the appeal which ought to
have been determined by the appeals committee. It set aside
the
decision of the disciplinary and grievance committee, and ordered
Zimra to reinstate Lindiwe as its librarian or pay her damages
in
lieu of reinstatement.







Aggrieved by that decision, Zimra appealed to this Court.







In my view, there are two issues for determination in this appeal.
The first is whether the appeals committee determined Lindiwe’s
appeal, and the second is whether it was proper for the Labour Court
to determine Lindiwe’s appeal which ought to have been determined
by the appeals committee.







With regard to the first issue, there is no doubt in my mind that the
appeals committee did not determine Lindiwe’s appeal. I
say so
for three reasons.







The first reason is that there is no evidence in the record before
this Court that after the appeals committee adjourned on 29 August
2005 it ever reconvened and reached a verdict on Lindiwe’s appeal.







The second reason is that in his letter to the human resources
manager, dated 7 September 2005, the chairman stated that the
appeals committee had not reached a consensus on the issues it had
considered, and that he was, therefore, recommending that the
verdict
of the disciplinary and grievance committee be upheld.







And the third reason is that in his letter to Lindiwe, dated
13 September 2005, the chairman said the following, inter
alia
:






“For the avoidance of doubt, this is to advise that after the
committee deliberated over the matter, I, as the chairman, have found
no reason to interfere with the decision of the disciplinary and
grievance committee. …”







It is quite clear from this extract that the decision communicated to
Lindiwe was that of the chairman, and not that of the appeals
committee.







As the chairman had no authority to decide the appeal on behalf of
the appeals committee, his decision was null and void, and of
no
force and effect. There was, therefore, no decision or
determination against which Lindiwe could have appealed to the Labour
Court. That is significant because the existence of a decision,
determination, judgment or order is a prerequisite to the noting
of
an appeal. Consequently, Lindiwe’s appeal was premature and was
not, therefore, properly before the Labour Court. On that
basis
alone it should have been struck off the roll.







Although the conclusion I have reached in respect of the first
issue in this appeal effectively disposes of the appeal, I will
consider the second issue, which is whether it was competent and
proper for the Labour Court to determine Lindiwe’s appeal which
should have been determined by the appeals committee. There is no
doubt in my mind that it was not.







In determining the appeal which should have been determined by the
appeals committee, the learned Senior President of the Labour
Court
relied upon what McNALLY JA said in Dalny Mine v Banda
1999 (1) ZLR 220 (S). At 221 B-F the learned JUDGE OF APPEAL
said:






“As a general rule it seems to me undesirable that labour relations
matters should be decided on the basis of procedural irregularities.

By this, I do not mean that such irregularities should be ignored.
I mean that the procedural irregularities should be put right.
This
can be done in one of two ways:







  1. by
    remitting the matter for hearing de novo and in a
    procedurally correct manner;








(b) by the Tribunal hearing the evidence de novo.







In regard to the first of these alternatives, this Court has
previously said that:







‘The Tribunal is not given a discretion whether to remit or not.
Once it decides that the proceedings were fatally irregular,
and that
it cannot come to a conclusion on the merits, it has no choice but to
remit.’







See Air Zimbabwe Corp v Mlambo 1997 (1) ZLR 220 (S) at 223F,
and s 101(8) of the Act.







In regard to the second alternative, I draw attention to the words
in the above extract: ‘and that it cannot come to a conclusion
on
the merits’. There used to be many cases in which the record of
evidence was so scanty that it was virtually impossible to
come to a
conclusion on the record. I commented on this in Sirdar’s
Manufacturers (Pvt) Ltd v Chinya
1995 (1) ZLR 368 (S) at 370F et
seq
. I noted there that the Tribunal has the power to hear
evidence in terms of s 106(6) of the Act as amended (now s 90(6)
of Chapter 28:01). See also s 18(1) of SI 30
of 1993. It may also be pointed out that in terms of s 97(4)
(a) and (b) of the Act,
the Tribunal has a choice (to be exercised,
of course, judicially) either to ‘proceed with the appeal by way of
a hearing’ or
to ‘decide the appeal on the record’.”







However, the facts of that case were very different from the facts
of the present case. The facts were summarised by McNALLY JA
at 220F-221B as follows:






“The facts are, briefly, that Banda was suspended from his job as a
cardex clerk at the mine on 16 December 1992. At a hearing
the
previous day he had been found guilty of ‘failure to follow
established procedures’. He appealed, in terms of the relevant
Code of Conduct (SI 165 of 1992), to the Mine Manager. The
Mine Manager dismissed him on 30 December 1992, having offered
an alternative of demotion which was refused.







Banda then appealed, in terms of Part D, s 3(e) of the
Code, to the labour relations authorities, and his appeal was heard
and dismissed by a senior labour relations officer on 1 February
1993. He then appealed to the Labour Relations Tribunal (the
Tribunal). His hearing in that forum extended from 30 November
1995 to 5 November 1996, 20 February 1997 and 7 May
1997.







The decision of the Tribunal was based on three procedural points
taken by the Tribunal mero motu and in limine.
Because it found fatal procedural defects in the procedure, the
Tribunal ‘considered it proper to uphold the appellant’s
(Banda’s)
appeal without going into the merits’. Accordingly,
it ordered his reinstatement with an alternative of damages.”







In my view, it is clear from the above facts that there is at least
one fundamental difference between Banda’s case supra
and the present case. The difference is that whereas in Banda’s
case supra Banda’s appeals to the Mine Manager and the
senior labour relations officer were dismissed, and therefore
determined, Lindiwe’s
appeal to the appeals committee was never
determined by that committee. Banda’s appeal to the Tribunal was,
therefore, properly
before the Tribunal, whereas Lindiwe’s appeal
to the Labour Court was not properly before that court, and should
not have been
heard. What McNALLY JA said in Banda’s
case supra does not, therefore, apply to the present case.







It seems to me that instead of appealing against a non-existent
determination of the appeals committee Lindiwe should have sought
a
court order compelling the appeals committee to determine her appeal.
This she can still do, because the appeals committee has
not yet
determined her appeal.







The appeal before this Court must, therefore, succeed. However,
as far as the costs in the court a quo and in this Court
are concerned, in view of the fact that Lindiwe was represented by
the Legal Aid Directorate, there will be no
order as to costs.







In the circumstances, the following order is made –







  1. The appeal is allowed with no order as to costs.









  1. The order of the court a quo is set aside, and the
    following is substituted –








“The matter is struck off the roll, with no order as to costs.”



















CHIDYAUSIKU  CJ: I agree.



















GWAUNZA  JA: I agree.



















Kantor & Immerman, appellant's legal practitioners



Legal Aid Directorate, respondent's legal practitioners