Hurungwe Rural District Council v Joram Misheck Moyo and Others

The three respondents were employed by the applicant (Hurungwe Rural District Council) in various managerial capacities, with the first respondent being the Chief Executive Officer. In 2018, allegations of misconduct were levelled against them following investigations by the Ministry of Local Government, Public Works, and National Housing which produced a damning report implicating them in abuse of office. The applicant faced a dilemma in disciplining the respondents because, as senior managers, they constituted the Disciplinary Committee under the internal code, making it impossible for them to preside over their own proceedings. Additionally, the applicant's internal code had not been submitted to the National Employment Council for approval as required by s 101(1b) of the Labour Act. Consequently, the applicant resorted to using the Model Code (SI 15/2006) to discipline the respondents. They were suspended on 24 July 2019, charged, found guilty and dismissed on 19-20 August 2019. The respondents challenged the dismissal in the Labour Court on the basis that they were charged under the wrong code and should have been charged under the applicant's internal code. The Labour Court found in their favour. The applicant sought leave to appeal from the Labour Court, which was refused on 20 November 2020, prompting this chamber application to the Supreme Court for leave to appeal.

• Whether the intended notice of appeal raised questions of law sufficient to warrant leave to appeal under s 92F(3) of the Labour Act
• Whether the proposed appeal had reasonable prospects of success
• Which code of conduct was applicable to the respondents' disciplinary proceedings - the applicant's internal code or the Model Code (SI 15/2006)
• Whether the Labour Court erred in finding that the disciplinary committee lacked jurisdiction to preside over the disciplinary proceedings
• Whether an internal code of conduct that had not been submitted to the National Employment Council for approval in terms of s 101(1b) of the Labour Act could still be used to discipline employees
• Whether the National Employment Council code superseded the internal code in circumstances where approval had not been sought
• Whether the Model Code could be applied where a registered internal code existed but was inapplicable to the specific circumstances

1. Leave to note an appeal against the judgment of the Labour Court delivered on 28 February 2020 be and is hereby granted. 2. The applicant shall file its notice of appeal within 10 days of the date of this order. 3. The costs of this application shall be costs in the appeal.

For purposes of s 12B(2) of the Labour Act, there is an 'absence of a registered code' justifying resort to the Model Code not only where no internal code exists, but also where an existing registered code is inapplicable to the circumstances of the case. The mere existence of a registered code of conduct is not sufficient to oust resort to the Model Code - there must be in existence a registered code of conduct that is applicable to the case in question. Where an internal code has not been submitted to the National Employment Council for approval as required by s 101(1b) of the Labour Act, and the employment council has registered its own code, there is an arguable case that the employment council code supersedes the internal code. An application for leave to appeal under s 92F(3) of the Labour Act must satisfy two requirements: (1) the intended notice of appeal must raise questions of law, and (2) the proposed appeal must have reasonable prospects of success. A question as to which code of conduct is applicable in disciplinary proceedings constitutes a question of law.

Mathonsi JA noted the 'quandary' and 'conundrum' faced by the applicant in attempting to discipline senior management who themselves constituted the Disciplinary Committee under the internal code, observing that they could not preside over their own disciplinary proceedings. The court cited with approval the definition of 'question of law' from Sable Chemical Industries Limited v Easterbrook 2010 (2) ZLR 342 (S), noting it has three distinct though related senses, and that a serious misdirection on the facts amounts to a misdirection in law. The court emphasized the gatekeeping function of leave to appeal applications, citing Prosecutor General v Intratek & Ors SC 59/19, which explained that the Supreme Court's role is 'to allow only cases that deserve to be heard on appeal to pass muster.'

This case is significant in Zimbabwean labour law jurisprudence as it addresses the interplay between internal employer codes of conduct and National Employment Council codes, particularly the requirements under s 101(1b) of the Labour Act regarding approval and supersession. It clarifies the circumstances under which the Model Code (SI 15/2006) may be applied even where an internal code exists but is either inapplicable to the specific circumstances or has not received the requisite approval from the relevant Employment Council. The case also provides guidance on when an internal code may be considered 'absent' for purposes of s 12B(2) of the Labour Act - not merely when no code exists, but when an existing code cannot be applied to the particular case (such as where senior managers who constitute the disciplinary authority are themselves the subject of disciplinary proceedings). The judgment reinforces the gatekeeping function of leave to appeal applications and the dual requirement of raising questions of law and demonstrating reasonable prospects of success.