No. SC 58/05
Appeal No. 274/04
v RYAN DZAPATA
COURT OF ZIMBABWE
CJ, ZIYAMBI JA & GWAUNZA JA
JUNE 7 & NOVEMBER 21, 2005
Mehta, for the
respondent in person
ZIYAMBI JA: This is an appeal
from a judgment of the Labour Court. The respondent was, on 19
August 2002, dismissed from his employment
with the appellant. He
was found guilty, by the Disciplinary Committee of the appellant, of
negligence in failing to report an
accident to the police. It was
alleged that as a result of his failure to report the accident, the
appellant was unable to claim
for the repairs of the vehicle from its
The respondent, having
unsuccessfully appealed to the various domestic tribunals provided in
the appellants code of conduct, appealed
to the Labour Court which
ordered his reinstatement without loss of salary or benefits with
effect from the date of his dismissal.
Against this decision, the
appellant now appeals to this Court.
It appears to me that the appeal
turns on whether or not the learned President of the Labour Court
erred in law in finding that
the conviction of the respondent was
irregular. If the conviction was indeed irregular, then the
respondent was unlawfully dismissed.
The letter notifying the
respondent to attend a disciplinary hearing was dated 17 August 2002.
It contained the following allegation:
is alleged by D. Nyoni that you abused a company vehicle and did not
follow company procedures.
Disciplinary Committee determination was:
written warning for negligence accused failed to report to
will be seen that the charge of negligence or failure to report to
the police was not contained in the letter of 17 August 2002.
charges put to the respondent at the hearing were as contained in the
letter of 17 August 2002. He was exonerated on both
enumerated therein. In his letter to the respondent dated 22 August
2002, the appellants Managing Director stated:
1. In your appeal you deny
abusing a company vehicle, whereas the disciplinary committee did not
penalize you for such.
2. Although you state in your
appeal that you were not informed of any written company procedures,
the disciplinary committee did
not penalize you for not following
3. You were given adequate notice
of the hearing on 17 August 2002 for a hearing that took place on
Monday 19 August 2002.
4. You were negligent in that you
did not report an accident involving a company vehicle allocated to
yourself that took place at
the place where you reside to the
A reading of the record shows
that, at all times, the respondent was defending himself against the
charges as put to him in the misconduct
letter. Indeed the record
of the disciplinary proceedings is headed:
OF NOT FOLLOWING COMPANY PROCEDURES.
minutes of the hearing are contained in pages 16-18 of the record.
Only at the bottom of page 18 was mention made of the police
to the respondent (RD):-
AC Where is the police report?
Accident must be reported to
is your knowledge of company procedures?
you get vehicle, vehicle is checked for dents, therefore we report
dents to Makope.
AC You should report issues to
the relevant H.O.D
GM You should approach
Distribution with necessary details of accidents, with report to
police and necessary details of attending
am therefore in agreement with the learned President of the Labour
Court that the conviction was irregular in that the respondent
found guilty of an offence which was not charged in the misconduct
letter or at the hearing. He was convicted of an offence
he was not tried. The respondent was therefore unlawfully dismissed
by the appellant.
The allegation by the appellant
that the respondent has taken up alternative employment was
unsubstantiated and, in any event, denied
by the respondent. If the
respondent has taken up such employment, that is a factor to be
considered when determining the quantum
of damages to be awarded to
The conclusion I have reached,
namely, that the respondent was unlawfully dismissed, is decisive of
the appeal. However, some mention
must be made of the first ground
of appeal which is stated as follows:
learned President erred in law in failing to allow the Appellant to
raise the point that the Respondent had filed his appeal to
Labour Court out of time.
dealing with this issue the learned President remarked as follows:
parties appeared in this Court on 21st
July 2004. The appellant alleged the disciplinary hearing was held
at an unreasonably short notice and that the alleged offence
proved. The respondent alleged that the employment code (hereafter
called the code) does not specify a minimum notice period
prior to a
hearing and that the evidence at the hearing proved the alleged
offence. I then directed the parties to file written
In its submissions, the respondent for the first time raised the
point that appeal to this Court was filed out of
time. This point
was not made at the hearing on 21st
July 2004 and neither is it canvassed in appellants submissions.
Although the appeal appears to be out of time, we do not know
appellant received the letter from the CEO, which dismissed his
penultimate appeal. So we do not know when the appeal period
started running. I consider that the respondent has sought to
unfairly ambush the appellant by raising this point at such a late
stage where appellant is unable to deal with the issue. This tactic
is unfair and grossly prejudicial to appellant. No explanation
been given for raising the point late. In the circumstances I will
not allow the point to be raised at this stage.
The appellant contended that the
court a quo
had wrongly refused to allow the point to be raised since a point of
law going to the root of the matter may be raised at any stage
proceedings. It is indeed trite that a point of which goes to the
root of the matter may properly be raised at any time
and even for
the first time on appeal. This was settled in Muchakata
Mine 1996 (1) ZLR 153
(S). However, where the consideration of the point of law will
result in unfairness to the party against whom
it was raised, the
Court will not allow the point to be raised. See Muchakata
v Netherburn Mine (supra)
at p 157 A where KORSAH JA stated:-
it is not one which is required by a definitive law to be specially
pleaded, a point of law, which goes to the root of the
matter, may be
raised at any time, even for the first time on appeal, if its
consideration involves no unfairness to the party against
whom it was
v Bateman 1918AD 460;
Paddock Motors (Pty)
Ltd v Igesund 1976 (3)
SA 16 (A) at 23D-G.
The learned President of the
Labour Court was of the view that the raising of the point of law
during the filing of written submissions
was unfair to the
respondent. His appreciation and application of the legal principle
involved was correct. Had this point of
law been raised at the
hearing, the respondent would have been given an opportunity to
answer the allegations.
In any event, it was not
established on the papers that the appeal to the Labour Court was out
of time since it could not be ascertained
on what date the appeal was
determined by the Chief Executive Officer. Even the heads of
argument filed by the appellant before
the Labour Court and in which
the point was first raised, do not state the date on which the appeal
was determined. One would have
expected the appellant to allege the
date of determination of the appeal in order to establish that the
respondent had appealed
to the Labour Court outside the prescribed
period. The absence of the date in any of the papers on record
provides strong support
for the decision of the learned President of
the Labour Court.
Further, it is not apparent on
the record whether or not the Code of Conduct provides that the
party disciplined must be advised
of his right of appeal to the
appropriate forum. If the Code does so provide, there is nothing on
the record to show that this
procedure was followed. I therefore
subscribe to the view expressed by the learned President of the
Labour Court that the introduction
of this point after the conclusion
of the hearing was unfair to the respondent.
Accordingly, the judgment of the
Labour Court is upheld and the appeal is dismissed with costs.
CHIDYAUSIKU CJ: I agree.
GWAUNZA JA: I agree.
Hussein Ranchod & Company,
appellant's legal practitioners