Smith Chataira v Zimbabwe Electricity Supply Authority

Chataira was employed by ZESA and was charged with misconduct. He was found guilty and discharged from employment. He appealed to the Appeals Committee and his appeal was dismissed. Chataira then brought review proceedings in the High Court, claiming errors of law by the Appeals Committee. He alleged that the Committee improperly accepted evidence from 'flea market' vendors by way of affidavit without calling them to give viva voce evidence, and that it accepted uncorroborated evidence from investigation officers. He submitted it was grossly irregular to accept hearsay evidence and that he was denied the right to cross-examine witnesses. The High Court dismissed his application, and he appealed to the Supreme Court.

• Whether a disciplinary hearing is defective if witnesses do not give viva voce evidence and the accused employee is unable to cross-examine them
• Whether the application for review complied with the requirements of Order 33, rule 257 of the High Court Rules
• Whether the acceptance of written statements instead of oral testimony by a domestic disciplinary tribunal violates the rules of natural justice
• What procedural fairness requirements apply to internal disciplinary proceedings
• Whether the right to be heard (audi alteram partem) includes the right to cross-examine witnesses in disciplinary proceedings

The appeal was dismissed with costs.

The binding legal principles established are: (1) In disciplinary proceedings, it is not necessary that viva voce evidence be led; written statements may be accepted provided the employee is shown such statements or documentary evidence. (2) The audi alteram partem rule does not automatically include the right to cross-examine witnesses in domestic disciplinary proceedings. (3) Natural justice in disciplinary proceedings requires: (a) that the employee knows the accusations to be met; (b) that the employee is given an opportunity to state his case; and (c) that the internal tribunal acts in good faith. (4) Domestic tribunals are entitled to follow their own procedures and are not bound by ordinary rules of evidence, provided their procedures do not conflict with the rules of natural justice. (5) Failure to comply with Order 33, rule 257 of the High Court Rules (stating shortly and clearly the grounds for review) constitutes a fatal flaw in review applications.

The Court made obiter observations emphasizing that despite repeated warnings in previous cases (PEN Transport, Mushaishi, and Marumahoko), legal practitioners continue to fail to comply with rule 257. The Court stated: 'The time has surely come to say enough is enough and to dismiss the defective applications without considering the merits.' This signals the Court's increasing impatience with procedural non-compliance. The Court also observed that the audi alteram partem rule 'is not a rule of fixed content, but varies with the circumstances' and that in its fullest extent may include various rights, but the criterion is always one of fundamental fairness, making the principles of natural justice flexible.

This case is significant in Zimbabwean labour and administrative law for establishing the procedural requirements that apply to internal disciplinary proceedings. It clarifies that domestic tribunals are not bound by strict courtroom procedures and that the right to be heard does not automatically include the right to cross-examine witnesses. The judgment emphasizes the flexible nature of natural justice principles in the employment context, balancing employee protection with practical considerations for employers. It also reinforces the importance of strict compliance with procedural rules in review applications, particularly rule 257 of the High Court Rules. The case provides important guidance on what constitutes procedural fairness in disciplinary proceedings in the workplace.