NDLOVU v LAFARGE CEMENT ZIMBABWE (PRIVATE) LIMITED (196 of 2024) [2024] ZWHHC 196 (20 May 2024)

1 HH 196-24 HC 2818/23 CLEVER NDLOVU versus LAFARGE CEMENT ZIMBABWE (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE CHINAMORA J HARARE, 20 May 2024 Court Application Mr W Simango, for the applicant Mr W Musikadi, for the respondent CHINAMORA J: This is a court application in which the applicant seeks the following order: “IT BE AND IS HEREBY ORDERED THAT: 1. The respondent’s penalty of dismissal be and is hereby set aside ad the applicant be reinstated to his former grade Hey 5. 2. Respondent to pay costs.” The applicant filed the present application on the premise that he was employed by the respondent as a Storesman since 1 February 2010. On the 8 February 2023, the applicant was served with a copy of a letter whose contents read: “This letter serves to advise you that you are being suspended without pay and benefits from Lafarge Cement Zimbabwe employ with effect from 08 February 2023 up to 08 March 2023, in line with Lafarge Cement code of conduct. This suspension is to allow an investigation into cement bags stocks variance. You are therefore being reminded that you are not allowed to interfere with witness nor visiting the company premises during the tenure of your suspension. Should you require access to any documents or any information that can be done through the Human Resources Office. You shall be called in by management from time to time to assist in investigation and the flow of proceedings…” On 24 February 2023, the applicant was formally charged with having allegedly contravened s 9.8 and 10.26 of the Lafarge Cement Zimbabwe Employment Code of Conduct. In essence, the applicant was implicated in the theft of 100 bags of cement which were recovered at HH 196-24 HC 2818/23 the point of delivery after a tip-off from an informer. The applicant was asked to attend a disciplinary hearing on 2 March 2023. After a full disciplinary hearing the applicant was found guilty of all the charges against him and was advised to appeal within the prescribed time period. Consequent, to being found guilty, the applicant was demoted to Hay 1 and was to be deployed in areas that do not interfere with stores or were management deem fit from time to time. Aggrieved by the decision of the disciplinary committee the appeal noted an appeal. In total the applicant raised a total of twelve grounds which attacked both the conviction and sentence. In deciding the appeal, it was held that: 1. Employment is a relationship of trust. An employee who works in the stores department is a custodian of the company’s most valuable property and performs duties that require ultimate trust. 2. The appellant’s duty was to secure all property in the stores department. The fact that bags went missing in the stores means appellant can longer be trusted to be a custodian of the stores. 3. There has been an irretrievable breakdown of the employment relationship and the final recommendation is that the appellant be dismissed with effect from 11 April 2023. As correctly noted by the applicant, the recommendation by the appeals office was dismissal. According to the applicant, he was advised to clear his tools and to come and collect his letter of dismissal. The applicant alleges that he was denied access to the company premises. The applicant contents that the appeals officer only recommended his dismissal which dismissal amounts to victimizing him. The applicant argues that the decision by the appeals officer was a harsh penalty. It is on this basis that the applicant seeks a declaratory relief declaring that the decision of the appeal officer be declared null and void and that the applicant be reinstated to his former position without loss of pay. The respondent opposed the application by raising four preliminary points to the effect that there is no respondent before the court, the application is based on a wrong legal premise, this Honourable court lacks the jurisdiction to entertain this matter at the first instance and that the relief being sought is fatally defective. On the merits, the respondent argues that the applicant was aggrieved by the decision of the appeals officer. He ought to have used the HH 196-24 HC 2818/23 remedies provided for in the respondent’s employment Code of Conduct and Labour Act [Chapter 28:01] instead of approaching this court on a declaratory order. Furthermore, the respondent argues that the decision of the appeals officer cannot be faulted especially if the regard is had to the fact that the appeals officer was of the view that the applicant’s conduct goes to the root of the contract of employment. The respondent filed its heads of argument on the other hand the applicant’s legal practitioners did not do the same, instead, they renounced agency on behalf of the applicant leaving the applicant out in the cold. Consequently, at the time of hearing, the applicant was a self-actor. The High Court Rules allows one to represent himself and does not place an obligation on a self-actor to file heads of argument. Therefore, I will deal with this application accordingly. Before delving into the merits of the matter, the respondent raised preliminary points which, in my view, would dispose this application. The respondent contends that this court lacks jurisdiction to entertain the present matter at the first instance. I propose to deal with this preliminary point first and only proceed to examine the other points in limine if the matter still remains unresolved. As rightfully observed by the respondent, the applicant is aggrieved by the appeal officer’s decision and the dispute between the parties is purely a labour issue. Consequently, according to the respondent it is the Labour Court that has the jurisdiction to entertain this matter. In his response to the preliminary point, the applicant argues that the High Court has full original jurisdiction over all persons and over all matters within Zimbabwe. The applicant argues that the High Court’s jurisdiction is unlimited, it may deal with any nature of claim and there is no monetary limits to claims that may be instituted. It is not in dispute that the question before this court is purely a labour dispute. In the case of Nhari v Mugabe & Ors SC 16/20, the Supreme Court held that: “At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to s 171 of the 2013 Constitution, has jurisdiction to determine all matters including issues of labour and Constitution, has jurisdiction to determine all matters including issues of labour and Constitution to determine all matters including issues of labour and employment. Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.” [My own emphasis] HH 196-24 HC 2818/23 The case of Chingombe & Anor v City of Harare & Ors SC 177-20 puts to rest this issue, and is more relevant to the matter before this Court. In the Chingombe case, the Supreme Court made it clear that the High Court has no jurisdiction to issue a declarator in respect of issues of labour and employment. The Supreme Court recognized that the Labour Court is not only a creature of statute, namely, the Labour Act. The Constitution in the broader sense provides for the Labour Court as a specialized court exclusively tasked with dealing with labour matters. Therefore, where the essence of the dispute is one where the Labour Court has jurisdiction, then it would be improper to approach the High Court for a declarater in such a matter. It is for the above reasons that I make the following order: 1. The point in limine on lack of jurisdiction by the High Court is upheld. 2. The application before this court be and is hereby struck off the roll. 3. The applicant shall pay the respondent’s costs. W O M Simango & Associates, applicant’s legal practitioners Chimuka Mafunga Commercial Attorneys, respondent’s legal practitioners