IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO.

LC/H/362/23

HELD AT HARARE ON 9 OCTOBER 2023 CASE NO. LC.H/219/22

AND 11 DECEMBER 2023

IN THE MATTER BETWEEN:-

LEONARD CHISINA APPLICANT

AND
ZIMBABWE ELECTRICITY TRANSMISSION

AND DISTRIBUTION COMPANY RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant Mr. B. Magogo

For Respondent Mr. C.J. Mahara

MURASI J.,

Applicant was employed by the Respondent as Section Engineer in the Metering Section.
Following the entering into an agreement between Respondent and a company which was to
supply meters to Respondent, Applicant and some other employees were assigned to inspect
manufacturing facilities in both the United Kingdom and Slovenia. At the conclusion of that trip,
Applicant and his colleagues compiled a report to the effect that they had inspected
manufacturing facilities in both the countries. This report was the cause of investigations as it
was later discovered that no inspection of a manufacturing plant had taken place in the United
Kingdom. The inspection of those manufacturing facilities were crucial to Respondent in that it
was to rely on the report to make the decision to go ahead with the contract of procuring the
said meters. The investigations revealed that only the manufacturing plant in Slovenia had been
inspected. Respondent preferred the following charge against the Applicant:

“Sometime during the period 26 November 2018 to 6 December 2018, you committed an
act of serious misconduct in that contrary to the fulfilment of the implied terms of your
employment contract, you improperly conducted and approved a Mandatory Factory Test
 (FAT) for the procurement of smart meters from Helcraw Electrical (Pvt) Ltd. You failed
to inspect the manufacturing facility for the smart meters and failed to assess the
quality management systems which were crucial requirements for the fulfilment of the
Factory Acceptance Test which you had been mandated to conduct.”

Applicant was brought before a hearing Officer who found him guilty and recommended his
dismissal. Applicant approached this Court for relief. This Court, in a judgment dated 25
February 2022, dismissed the appeal. Applicant intends to approach the Supreme Court on
appeal. This is therefore an application for leave to appeal in terms of section 92 (f) (2) of the
Labour Act, (Chapter 28:01). Applicant’s prospective grounds of appeal are couched as follows:

1. The court a quo grossly misdirected itself in finding that the issue of what was the
applicable standard for conducting Factory Acceptance Test (FAT) did not arise from the
findings of the Hearing Authority when such an issue struck at the core of the charge for
which Appellant was convicted.
2. The court a quo grossly erred and misdirected itself in upholding a finding that Appellant
had ‘ improperly conducted and approved’ the FAT in the face of evidence that same
had been conducted in terms of RFP as read with international IEC standards in the
avowed absence of a ‘documented policy and procedure on conducting FATs’.
3. The court a quo erred in failing to find that once it is accepted that the FAT was carried
out in terms of the applicable international Guidelines, then the same had been
properly conducted and approved regardless of what the parties recorded as objectives
in the FAT report compiled after the fact.
4. The court a quo grossly misdirected itself, contrary to evidence presented;
a. In finding that the contract negotiation documents, the contract itself and in ZETDC
Technical Specifications clearly provided for the inspection of the manufacturing plant.
b. In upholding the Hearing Authority’s finding that Appellant signed a report which
falsely reported that there was a factory inspection in UK.”
Applicant’s Submissions

In submissions, Mr. Magogo stated that the appeal challenged the Court’s factual findings and
that those findings were gross misdirections. He submitted that essentially what Applicant was
averring was that the Court had made a finding that the applicable Standard did arise from the
decision of the Hearing Officer when this was crucial to the decision and this amounted to a
misdirection. He further submitted that in the mind of the Hearing Authority, there had not
been a factory inspection and that this had amounted to improper conduct on the part of the
Applicant in the manner of the approval of FAT. He argued that it was thus inconceivable that
something could be said to have been done improperly without any standard. He further
argued that the Hearing Authority had come to a conclusion that a certain standard had to be
applicable in the circumstances.
Mr. Magogo further stated if the Court had taken note of the standard referred to, it would have
arrived at the conclusion that the international standard was the basis on which the FAT was done.
He pointed that the fact that the contract between the contractor and the Respondent provided for
an inspection was not borne out of the evidence and that the contract documents were not part of
the standard envisaged by the international guidelines. He further argued that the contract itself
provided that there must be an FAT but that the way the FAT was to be conducted was the real
dispute in the matter. He stated that the evidence showed that the Applicant and his colleagues did
not mention that there had been an inspection in the United Kingdom. The oral submissions
essentially captured what was contained in the heads of argument. Precedent on what should
considered in applications of this nature was cited in support of the averments made.

Respondent’s Submissions

Mr. Mahara stated that he was going abide by the documents filed of record. He submitted that
Applicant seemed to dwell on one aspect of the charge leaving the other crucial part. He stated
that Applicant was leaving the issue that he improperly and approved an FAT. He further
submitted that the contract and the minutes provided what the Applicant was supposed to do.
He pointed out that these showed that the inspection was to be conducted at the
manufacture’s factory. He stated that the report compiled by Applicant and his colleagues had
incorrectly alleged that the manufacturing line had been inspected when this had not
happened. Mr. Mahara further submitted that Respondent had its specific technical
requirements as to what the FAT team was supposed to do and this had not been done as far as
the trip to the United Kingdom was concerned.

As far as the International Standard was concerned, Mr. Mahara submitted that these are mere
recommendations and that what takes precedence are the Respondent’s technical
requirements and that this was buttressed by the report signed by the Applicant. He stated that
Applicant should have refused to sign the erroneous report which stated that the
manufacturing line in the United Kingdom had been inspected as he knew that it was wrong.
Mr. Mahara argued that Applicant had been part of the contract negotiations which had come
up with the requirement for the inspection and how it was to be conducted and therefore
should have adhered to those requirements.
ANALYSIS
In Essop v S [2016] ZASCA 114, it was held as follows:

“What the test for reasonable prospects of success postulates is a dispassionate decision,
based on the facts and the law that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In order to succeed, therefore, the appellant must
convince this court on proper grounds that he has prospects of success on appeal and that
those prospects are not remote, but have a realistic chance of succeeding. More is required
to be established than that there is a mere possibility of success, that the case is arguable
on appeal or that the case cannot be categorized as hopeless. There must, in
 other words, be a sound basis for the conclusion that there are prospects of success on
appeal.”

In Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20, MAKARAU JA

(as she then was) had this to say at page 6 of the cyclostyled judgment:

“It is my understanding from the above authorities that broadly speaking, an appeal from
the Labour Court to this Court is competent only it it questions what the law has said in
other binding cases on the issue to be determined, presumably in matters where the court
has discretion, or questions what the law is on the specific issue or issues raised in the
appeal or attacks the decision a quo on the facts as being irrational. The remit of this court
in determining appeals from the court a quo is therefore fairly narrow.

Put differently, the broad position of the law is that an appeal from the court a quo to
this Court must call upon this Court to determine and pronounce on the correct and
true rule of law on the matter in dispute or, if based on the facts of the matter, to set
aside the decision as being irrational. It cannot invite this court to revisit the entire
dispute and exercise a fresh discretion in the matter.”

A reading of Applicant’s prospective grounds of appeal show that they raise a single issue. It is
that this Court misdirected itself in making a finding as to the applicability of the international
standard in the matter. I believe the matter should be put in its proper perspective:
Applicant was part of the team that went to the United Kingdom assigned by the
Respondent.
Applicant was one of the signatories to the report that was compiled on the team’s return.
It is not denied that the manufacturing facilities were not inspected by the team in the
United Kingdom.
To that extent, the report compiled by the team, with Applicant as a willing signatory, was
incorrect.
Respondent was supposed to rely on that report in making a final decision on whether or
not to proceed with the procurement.
Applicant was part of the negotiating team that produces minutes which referred to the
inspection that was to take place.

The above issues are not denied by the Applicant. I will therefore make reference to the
judgment which is the subject of the appeal. In the appeal before the Court it was argued that
no written mandate was given to the FAT team and ‘no clear outline of what was to be done, by
whom and how’. This has now been abandoned and the assertion is that the mandate was to
deal the FAT using international standards. AS shown at page 4 of that judgment, the report
compiled by Applicant and his colleagues was as follows:

“The objective of the FAT visit was to witness technical tests, inspect manufacturing and
test facilities, meet the R & D Engineers and assess the quality management systems in
 place at the two production facilities. ZETDC Engineers were to confirm and verify that
the meters being manufactured fully meet the ZETDC Technical Specification and that
AMI system fully meets the use cases specified at tender.”

This was authored by Applicant and his colleagues. A reading of this paragraph shows that there
is no mention of International Standards. Was Applicant and colleagues mistaken about their
mission and mandate? It is clearly mentioned that these meters were to meet ZETDC standards
and NOT International Standards. What was also specified in the tender was to be another
guideline. Page 5 of the Court’s judgment refers to page 148 of the record where it was
recorded as follows:

“Our first port of call was in Bristol, UK where Helcraw (Supplier) and their Principal,
Secure Meters took us to their factory as per contract agreed in Harare, negotiations as
Zimbabwe.”

Clearly what was being done was in accordance with the contract agreed upon by the parties.
Page 6 of the Court’s judgment, in the last paragraph thereof deals with the concerns raised by
Applicant in the application for leave to appeal. The paragraph refers to the IEC guidelines and
specifically relates to the contents of these guidelines. The telling portion of the guidelines is
referred to in the judgment and provides thus:

“Technical issues are included in the proforma and issues to manufacturing plants are
subject to agreement between the parties.”

The IEC Guidelines therefore remained what they are, guidelines. What carried the day was
what was agreed upon by the parties.
Applicant had stated as follows:

“It can then be safely concluded that in terms of the applicable RFP or IEC standards, no
requirement was there during FAT to inspect the factory or to carry out type tests
relevant in the assessment of a supplier’s quality management systems.”

The above position was dismissed by the Court. Applicant is clearly ‘blowing hot and cold’. On
the one hand, it is argued that no standards were specified yet on the other it is now being
averred that Applicant complied with IEC Standards. Applicant, having participated in the
meeting that produced minutes which formed part of the contract, knew what specifications
were required by Respondent. This is clearly stated in the Court’s judgment. As stated by
MAKARAU JA (as she then was), Applicant wants the Supreme Court to revisit the whole factual
position and, presumably, exercise a fresh discretion in the matter.

It is my considered view that the position arrived at by the Court was neither irrational nor a
misdirection. There are no prospects of success on appeal. The application ought to be dismissed.
In the result, the application for leave to appeal to the Supreme Court is hereby dismissed with
costs.

Messrs Makuwaza & Magogo Attorneys- Applicant’s legal practitioners

Messrs Muvingi & Mugadza- Respondent’s legal practitioners.