ZESA Holdings (Private) Limited v Obson Matunja

ZESA Holdings employed Matunja as Head of the Group Performance and Audit Division. He was suspended and charged with three counts of misconduct relating to alleged theft/fraud of 9,180 litres of fuel, requisitioning fuel for a vehicle under repairs, and gross inefficiency. An independent disciplinary authority (Chris Mhike, a senior legal practitioner) was appointed to conduct the hearing. The disciplinary authority acquitted Matunja on the first two charges and issued a "caution and discharge" on the alternative third charge of gross inefficiency. ZESA appealed to the Labour Court against the acquittal. The Labour Court struck the appeal off the roll, holding that an employer has no right of appeal against a decision of a disciplinary authority. ZESA then appealed to the Supreme Court.

• Whether an employer has a right of appeal to the Labour Court against a decision of a disciplinary authority under section 92D of the Labour Act and section 8(6) of the Labour (National Employment Code of Conduct) Regulations
• The proper interpretation of the words 'person' and 'party' in the relevant statutory provisions
• The status and effect of two conflicting judgments purportedly emanating from the Supreme Court in Pioneer Transport v Mafikeni

The appeal was allowed with each party to bear its own costs. The judgment of the Labour Court was set aside and substituted with an order dismissing the preliminary objection that the appellant has no right of appeal. The matter was remitted to the Labour Court for continuation. The Registrar was directed to issue a corrigendum removing the fake judgment Pioneer Transport v Douglas Mafikeni SC 45/17 (2017 (2) ZLR 71) from the list of Supreme Court judgments and asserting that the authentic judgment is Pioneer Transport v Douglas Mafikeni SC 65/18.

Section 92D of the Labour Act [Chapter 28:01] read with section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I. 15/2006 gives an employer, as a 'person' or 'party' aggrieved by a determination of a disciplinary authority, the right to appeal to the Labour Court. The words 'person' and 'party' in these provisions must be given their ordinary grammatical meaning and include employers (including corporate entities). A procedure providing access to the Labour Court by way of appeal cannot, by construction, be made available only to one party in a dispute and not the other. The literal rule of statutory interpretation requires that words be accorded their primary and grammatical meaning unless doing so would lead to absurdity or inconsistency with the rest of the statute.

The Court commented on the importance of costs in this case, noting that the existence of seemingly conflicting judgments of the Supreme Court on the employer's right of appeal created the need for clarification and that neither party should bear costs for that reason. The Court also made strong administrative observations about the publication of the fake 2017 judgment in the Zimbabwe Law Reports despite the editorial committee being alerted to the irregularity, describing this as 'disturbing' and noting that 'there is need for intervention in the form of a corrigendum to fix the problem.' The Court emphasized the need for proper verification and integrity in the judicial publication process.

This case is significant in Zimbabwean labour law for definitively establishing that employers have a right of appeal to the Labour Court against decisions of disciplinary authorities. It clarifies the interpretation of section 92D of the Labour Act and section 8(6) of the National Employment Code of Conduct Regulations, confirming that the words 'person' and 'party' include both employers and employees. The case also highlights the importance of the literal rule of statutory interpretation and equal access to justice principles. Additionally, it exposed and corrected a serious irregularity where a fake Supreme Court judgment had been published in the Zimbabwe Law Reports, emphasizing the integrity of the judicial process and the need for proper verification of judgments before publication.