Richard Chingodza v Minerals Marketing Corporation of Zimbabwe and Others

The applicant was the Deputy General Manager, Finance and Administration of the first respondent (Minerals Marketing Corporation of Zimbabwe). Allegations of misconduct were raised against him and he was suspended. Disciplinary proceedings were instituted under section 2.1.9 of the first respondent's code of conduct. He was found guilty and dismissed from employment. His appeal to the Disciplinary Appeals Committee was dismissed, and his subsequent application for review to the Labour Court was also dismissed. At the time the disciplinary committee members were appointed, the first respondent did not have a substantive board of directors. Professor Gudyanga, the Permanent Secretary for the Ministry of Mines, was acting as chairperson and the only board member. Professor Gudyanga appointed all the adjudicators in both the disciplinary committee and appellate body, was the complainant in the disciplinary hearing and appeal, appointed the prosecutor, and was reported to have been a witness. The disciplinary committee and appeals panel comprised of the applicant's subordinates and junior employees.

• Whether section 2.1.9 of the first respondent's code of conduct is constitutionally invalid for violating the right to a fair trial as enshrined in section 69(2) read with section 44 of the Constitution
• Whether the applicant's right to an impartial tribunal as guaranteed by section 69(2) of the Constitution was violated
• Whether the disciplinary hearing conducted by the applicant's subordinates, where the complainant appointed all adjudicators and played multiple roles, constituted a fair hearing
• Whether the test for bias and impartiality was satisfied in the disciplinary proceedings

1. Section 2.1.9 of the 1st respondent's Code of Conduct is declared constitutionally invalid in that it violates the applicant's right to a fair trial as enshrined in section 69(2) as read with section 44 of the Constitution. 2. The applicant's disciplinary hearing pursuant to section 2.1.9 of the 1st respondent's code of conduct violated the applicant's right to a fair hearing.

Section 2.1.9 of an employment code of conduct that is too wide and lacks direction regarding who may be appointed to sit in disciplinary hearings is open to abuse and constitutionally invalid for violating the right to a fair hearing under section 69(2) of the Constitution. A disciplinary hearing cannot be fair where: (1) the accused is adjudicated by his or her subordinates and juniors rather than peers or superiors; (2) the complainant appoints all adjudicators in both the disciplinary committee and appeal body; (3) the same person acts as complainant, witness, and appointer of all adjudicators and the prosecutor. The test for bias is objective - whether a reasonable, objective and informed person would apprehend that there was a real likelihood of bias and that the tribunal would not bring an impartial mind to bear on the adjudication. Where bias can reasonably be inferred, the hearing cannot stand. The right to a fair hearing requires both notice and a proper opportunity to be heard before an independent and impartial tribunal. Disciplinary proceedings conducted in violation of these principles are invalid and cannot stand.

The court noted that in terms of section 16 of the MMCZ Act, no decision or act done under the authority of the board becomes invalid by reason of the fact that the board consisted of less than the required number of persons. The court therefore found that the Act allows a scenario where the board functions with less than the required number of board members (the Act stipulates minimum 6, maximum 10 members), and that Professor Gudyanga's decision to institute proceedings as the sole board member accorded with the provisions of the Act. The court observed that "justice must not only be done but must be seen to be done" and that courts do not look at whether there was actual bias but rather at the impression which would be given to a reasonable person. The court characterized the situation as a "travesty of justice" and stated that it was "palpably perverse to appoint one's subordinates or juniors to evaluate the guilt of their superior."

This case is significant in Zimbabwean constitutional and labour law as it establishes important principles regarding the right to a fair hearing in disciplinary proceedings. It affirms that constitutional fair trial rights extend to employment disciplinary hearings and that internal company codes of conduct must comply with constitutional standards. The judgment provides guidance on what constitutes an impartial tribunal in the employment context, specifically that senior employees cannot be fairly disciplined by their subordinates. It demonstrates the court's willingness to declare unconstitutional employment code provisions that are too wide and open to abuse, thereby violating fundamental rights. The case reinforces that procedural fairness requires not only notice and opportunity to be heard, but also an independent and impartial adjudicator free from actual or perceived bias. It emphasizes that multiple conflicting roles by the same person (complainant, witness, appointer of adjudicators) in disciplinary proceedings violates the right to a fair hearing.