Gunzo v Zimbabwe Revenue Authority and 3 Others (63 of 2025) [2025] ZWSC 63 (17 July 2025)

Judgment No. SC 63/25 Civil Appeal No. SC 258/25 11 REPORTABLE (63) BRIGHT GUNZO v ZIMBABWE REVENUE AUTHORITY (2) JOEL SHUMBAMHINI N.O (3) L PESWA DUBE N.O (4) ENERST MASVAIRE N.O SUPREME COURT OF ZIMBABWE BHUNU JA, MATHONSI JA & KUDYA JA HARARE: 17 JUNE 2025 & 17 JULY 2025 A.K Maguchu, for the appellant S. Bhebhe, for the first respondent No appearance for the second, third and fourth respondents MATHONSI JA: On 28 April 2023 the Labour Court (the court a quo) dismissed an application for review made by the appellant. The appellant was dissatisfied by that outcome and filed the present appeal before this Court. THE FACTS The appellant was employed by the first respondent, a statutory body established in terms of s 3 of the Revenue Authority Act [Chapter 23:11], as its Head of Human Capital Administration in the Human Capital Division. The second respondent was cited in his official capacity as the chairperson, while both the third and fourth respondents were cited as committee members of the Disciplinary Committee that dealt with a disciplinary case involving the appellant. The appellant was suspected of having committed acts of misconduct as a result of which he was suspended from duty, with pay, in terms of Clause 10.1 of the first respondent’s Code of Conduct on 12 July 2022. The initial suspension was to facilitate investigations into the alleged misconduct. Following those investigations, four counts of misconduct were preferred against him. Accordingly, by letter dated 26 August 2022, the appellant was placed on suspension without pay and notice given of a disciplinary hearing scheduled for 2 September 2022. In response, on 1 September 2022, the appellant addressed a letter to a Labour Officer referring the matter in terms of s 101(6) of the Labour Act [Chapter 28:01] (the Act). The basis for such referral was that, in the appellant`s view, more than thirty days had lapsed from the date of the commencement of proceedings against him without a determination being made. At the hearing set for 2 September 2022 the appellant requested a postponement of the hearing, notwithstanding that he had already purported to refer the dispute to a Labour Officer in terms of s 101(6) of the Act. His reason for seeking a postponement was two-fold. Firstly, he wanted the employer to avail to him certain documents or information he had listed, to allow him access to his office and computer and to allow him to interview certain individuals he also listed. Secondly, the appellant sought a postponement because his legal practitioner was “unavailable on that date due to prior commitments”. The minutes of the meeting show that the parties deliberated at length about the application for a postponement and eventually agreed to postpone the matter to 21 September 2022. On 21 September 2022, the appellant raised some preliminary issues pertaining to his referral of the matter to a Labour Officer by letter dated 1 September 2022. His position was that the disciplinary proceedings commenced with his suspension with pay on 12 July 2022. According to him the matter had been properly referred to a Labour Officer, the thirty-day period having expired. During deliberations before the Disciplinary Committee, counsel for the appellant made lengthy submissions and concluded by saying: “Once jurisdiction is lost, any decision by those without jurisdiction is a waste of time. I have no problem with the 30 days being frozen so that there won`t be a re-referral as we wait for the labour officer to determine that issue.” (The underlining is mine) In the end the parties agreed to postpone the matter to 4 October 2022 to enable the appellant`s legal practitioner to file written submissions on the preliminary point he was prosecuting. When the hearing resumed on 4 October 2022, the Disciplinary Committee handed down its ruling on that point. It determined that it still had jurisdiction to proceed with the merits of the matter. Immediately after the ruling, counsel for the appellant again made an application for a postponement. The reason for seeking a further postponement at that stage was stated as: “It is an application for postponement because the defendant`s representative, Mr Maguchu is unavailable today as he is attending a training workshop today and have (sic) asked me to stand in for him and make an application for postponement.” The matter was therefore postponed to 13 October 2022 at the instance of the appellant. Even though the new date was requested by the appellants’ counsel, when the disciplinary hearing re-convened on that date, Mr Maguchu was not in attendance. Ms Makumbe stood in for him and made an application for a further postponement. She stated: “We have an application for a postponement from Mr Muguchu who is attending a Labour Court case in Bulawayo today. We therefore ask that the hearing be postponed to next week. Unfortunately, when there was a postponement last week, the matter had not been diarized. The case had already been heard and it was postponed today. He had not instructed anyone to come and argue the matter because there had been another indication that this matter was now being heard by the Labour officer.” This time the Disciplinary Committee refused to postpone the matter and gave the appellant`s counsel time to study the papers before proceeding with the hearing. On resumption of the hearing the appellant`s counsel came up with another preliminary point. It was submitted on behalf of the appellant that there was a second referral of the dispute to a Labour Officer made on 4 October 2022, the appellant having abandoned the earlier referral I mentioned above. The appellant asserted that the second referral was proper and that the first respondent made a concession to that effect. The first respondent denied making such a concession. After hearing submissions from counsel, the Disciplinary Committee ruled that it still had jurisdiction to determine the merits of the matter. Following a full contested hearing on the merits, the appellant was found guilty of misconduct in count one, namely recommending the recruitment of a non-qualified candidate; guilty of misconduct in count two, namely failure to properly check and manage the payroll leading to duplicate payment of overtime on the payroll; guilty of misconduct in count three, namely failure to properly check and manage payroll, unsigned and incomplete claim forms; and guilty of misconduct in count four, namely refusal to obey a lawful instruction. He was dismissed from employment. On 4 November 2022 the appellant appealed internally to the Appeals Committee against the decision of the Disciplinary Committee which upheld the appeal on one count and dismissed the rest of the appeal but did not vary the penalty of dismissal. Following the dismissal of his internal appeal, the appellant lodged an appeal to the Labour Court under case numbers and LCH 1122/22 ref. LCH 216/23 which appeal was dismissed on the merits. PROCEEDINGS BEFORE THE LABOUR COURT While pursuing an appeal to the Labour Court on the merits, the appellant also filed a review application in that court on three grounds, namely, that: “(a) The disciplinary committee presided over and determined a disciplinary matter over which it had lost jurisdiction by operation of s 101 (6) and or by agreement. (b) The disciplinary committee effectively denied the applicant his right to legal representation by insisting on hearing the matter despite the justified absence of applicant`s attorney adequate time to prepare for hearing (sic). (c) The disciplinary committee erred procedurally by proceeding to hear the merits of the matter without determining procedural issues raised by the applicant and which applicant alleged disposed of the matter without need to consider the merits.” Before the court a quo the appellant sought the following relief: “IT IS ORDERED THAT:- The application is hereby granted. The proceedings that were conducted by the Disciplinary Committee chaired by----- be and are hereby set aside.The respondent is directed to set up an alternative disciplinary committee if it wishes for the hearing of this matter.The respondent is ordered to pay costs of suits.” Before the court a quo, in respect the first ground, the appellant contended that the Disciplinary Committee lost jurisdiction to deal with the matter. In his view, by 4 October 2022, when the hearing was held, a period of more than thirty days had passed. It was further contended that the referral to a Labour Officer was lawful signifying the employer’s loss of jurisdiction to determine the matter. On the second ground, the appellant argued that he was denied legal representation by counsel of his choice when the Disciplinary Committee refused a further postponement and instead gave the stand-in legal practitioner inadequate time to prepare for the hearing. Regarding the third ground, the appellant contended that the lower tribunal did not determine a preliminary issue placed before it, namely that the employer consented to the referral of the dispute to a Labour Officer. Per contra, the first respondent submitted that the lower tribunal applied its mind to both referrals. It made the point that there was never a time when its legal practitioners agreed to have the matter referred to a Labour Officer and that the discussion between the parties at the office of the Labour Officer was misconstrued. The first respondent`s position was that jurisdiction was never lost. On the second ground of review, the first respondent refuted the allegation of denial of legal representation especially as the Labour Court cause-list produced before the lower tribunal only listed cases on the roll and nothing else. The first respondent maintained that when an application for a postponement is made the party making it must expect that it would either be granted or refused. According to the first respondent, when the postponement was refused the legal practitioner in attendance was granted time to prepare for the hearing and, as such, there was no denial of the right to legal representation. With respect to the third ground of review, the first respondent argued that the appellant raised only one preliminary point on the thirty-day period and nothing else. In the first respondent`s view, the said preliminary point was addressed by the lower tribunal. The Court a quo found that the appellant was notified of the hearing on 26 August 2022 which hearing was pencilled for 2 September 2022. In its view, the Disciplinary Committee was correct in finding that the period of thirty days had not lapsed by 21 September 2022. Relying on the authority of Living Waters Theological Seminary v Chikwanha SC 59/21, the court a quo found that the conditions for referral set out in s 101 (6) of the Act had not been met. It reasoned thus at pp 13-14 the judgment: “In the present case, conditions under which a matter can be referred to the labour officer can hardly be said to have been met, whether the referral date be the first of September 2022 or 4 October 2022. This is said in view of the fact that (i) the matter was being considered in terms of a code of conduct (ii) a period of thirty days had not lapsed before the matter was concluded (iii) the referrals appear to have taken the other party by surprise, so under the circumstances the parties did not agree and (iv) the cause of the delay resulting in the allegation of lapse of the thirty day period lay squarely on the shoulders of the applicant. The applicant cannot blame the committee for a delay which he caused. In answer to the question that I posed above, the period of thirty days was not exceeded. If it had been exceeded, it would have been the fault of the applicant. What this means is that the lower tribunal had jurisdiction to determine the matter.” The court a quo also took the view that the matter was being dealt with in terms of a code of conduct which set out time frames. It recognized that the appellant showed an unwillingness to have the matter finalized. It proceeded to dismiss the application with costs. PROCEEDINGS BEFORE THIS COURT Riled by the judgment of the court a quo, the appellant noted the present appeal on the following grounds: “1. The court a quo misdirected itself on the facts in finding that a period of thirty days had not passed between 29 August 2022 and 4 October 2022. 2. The court a quo erred at law in finding that appellant’s justified requests for postponement deprived him of the liberty or right to refer the matter to a Labour Officer under s 101 (6) of the Labour Act. 3. The court a quo seriously misdirected itself on the facts in finding that appellant was the cause of the delays that led to the expiry of thirty days from 29 August 2022 to 4 October 2022. 4. The court a quo erred at law in failing to determine whether the first respondent agreed on 11 October 2022 to have the Labour Officer hear the matter on the merits and consequently whether that agreement deprived the Disciplinary Committee of the jurisdiction to hear the matter. 5. The court a quo erred at law in going on a tangent and determining the matter on the basis of appellant allegedly blowing hot and cold, an issue not raised and or argued before it. 6. The court a quo seriously misdirected itself in finding that there was no justifiable absence of the appellant’s legal practitioner of choice for the disciplinary proceedings of 13 October 2022 and consequently erred in failing to find that appellant was denied his right to be heard. 7. The court a quo seriously misdirected itself in finding that the procedural issues raised by the appellant before the Disciplinary Committee had been considered and disposed of by the Disciplinary Committee, more so when none of the parties had raised and argued that the Disciplinary Committee had determined the preliminary points. RELIEF SOUGHT Appellant prays for the following relief: “1. The appeal succeeds with costs. 2. The judgment of the court a quo be and is hereby set aside and is substituted with the following: ‘1. The application for review succeeds with costs. 2. The proceedings conducted by the first respondent’s Disciplinary Committee resulting in its decision of 2 November 2022 are hereby set aside. 3. Parties are directed to appear before the Labour Officer for a hearing in terms of s 101 (6) of the Labour Act on respondent’s allegations of misconduct against the appellant contained in respondent’s letter to the appellant dated 12 July 2022.’” I mention in passing that the relief sought by the appellant on appeal is not the relief that he sought before the court a quo. Most of the grounds of appeal attack the factual findings of the court a quo without laying the requisite legal foundation for interference with those findings in view of the provisions of s 92 F (1) of the Act. The issues for determination in this appeal therefore are: Whether or not the court a quo erred in finding that the Disciplinary Committee had jurisdiction to hear the matter.Whether or not the court a quo erred in finding that all the procedural issues raised by the appellant had been disposed of. Whether or not the appellant’s right to legal representation was violated. Mr Maguchu, who appeared for the appellant, anchored his motivation of the appeal on the premise that the Disciplinary Committee which presided over the matter had no jurisdiction to do so regard being had that the period of thirty days within which it was allowed by law to do so had expired from the time notification was given. Counsel submitted that as a result of the expiration of that period, the appellant had taken the liberty to refer the matter to a Labour Officer for determination in terms of s 101 (6) of the Act. The referral of the matter to a Labour Officer, so it was argued, whether by letter of 1 September 2022 or that of 4 October 2022, had the effect of taking away the jurisdiction of the Disciplinary Committee. In his view, the finding by the court a quo that the period of thirty days had not lapsed was a glaring misdirection which disposes of the matter completely. Relying on the authority of Mwenye v Lonhro SC 125/2000, Mr Maguchu submitted that the reckoning of the thirty-day period is from the date the employee is notified of disciplinary proceedings instituted against him or her and not from the date of notification of the hearing. In his view, by the time the Disciplinary Committee heard the matter on 13 October 2022, it had lost its jurisdiction. While acknowledging that the case of Living Waters Theological Seminary, supra, is authority for the proposition that the period is reckoned from the date of notification of the hearing, counsel insisted that the issue pales regard being had that the matter had already been referred to a Labour Officer when it was determined. Mr Maguchu, went on to submit that, before the Disciplinary Committee, the appellant argued that the parties had agreed that the referral to a Labour Officer made on 4 October 2022 was proper. In his view, the Disciplinary Committee failed to determine that preliminary issue. Accordingly, so the argument went, by finding that all the preliminary points raised were disposed of the court a quo erred. On the aspect of legal representation, Mr Maguchu submitted that the court a quo erred by refusing a postponement to allow for the attendance of the appellant’s counsel of choice when he was engaged at the Labour Court in Bulawayo. In his view, the latter court took precedence over the Disciplinary Committee. When his attention was drawn to the disparity between the relief that was sought before the court a quo and what the appellant now seeks on appeal, Mr Maguchu submitted that, while that is so, there was nothing that could prevent the court a quo from amending the draft order to bring it in line with what is now being sought on appeal. In resisting the appeal, Mr Bhebhe for the respondent commenced his submissions from the central point that this Court has repeatedly asserted that it is undesirable to determine labour disputes on technicalities but on the merits. He added that an employee accused of misconduct should escape punishment only if he or she is innocent but certainly not on technicalities, especially those raised clearly to escape the consequences of misconduct. In that regard, Mr Bhebhe drew attention to the fact that the appellant participated in all the internal disciplinary procedures including appealing to the Appeals Committee. When he lost internally, he appealed to the court a quo and his appeal was dismissed. All the time the matter was being dealt with on the merits. According to Mr Bhebhe, resort to review proceedings was a desperate effort to escape the consequences of misconduct. Mr Bhebhe further submitted that the period of thirty days lurched onto by the appellant was overrun primarily because of the appellant’s endless requests for postponements. In addition, so the point was made, the parties agreed to do so and the appellant specifically agreed to freeze the period, as shown by the remarks of his legal practitioner which I quoted earlier in this judgment. According to Mr Bhebhe, the relief sought by the appellant in his application for review a quo, which again is quoted above, is indicative of the fact that, throughout the proceedings, the parties were agreed that jurisdiction was not lost. Hence the prayer by the appellant that the matter be remitted before an alternative Disciplinary Committee as opposed to its referral to a Labour Officer. It was strongly argued on behalf of the respondent that the court a quo was correct in its interpretation of s 101 of the Act given that all the while the Disciplinary Committee was seized with the matter. In making that point, counsel referred to the cases of Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170 (S) and Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Mugavha SC 62/19. THE LAW The point of departure is s 92 F (1) of the Act, which is the provision regulating the right of appeal from the court a quo to this Court. It reads: “92 F Appeals against decisions of Labour Court An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.” (The underlining is mine) The present dispute centers around the interpretation of s 101 which provides, in ss (1) for an application for registration of an employment code of conduct to the Registrar by an employment council. Subsection (2) provides for such registration while ss (3) sets out what an employment code of conduct must provide for which includes the procedure to be followed in the case of any breach of the code and the person, committee or authority responsible for implementation. In terms of the then ss (5) before the insertion of a proviso to it by s 31 (b) of Act 11 of 2023 and (6): “(5) Notwithstanding this part, but subject to ss (6), no Labour Officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings. (6) If a matter is not determined within thirty days of the date of the notification referred to in para (c) of subs (3), the employee or employer concerned may refer such matter to a Labour Officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.” Clearly therefore ss (6) gives both the employee and employer involved in a Labour dispute the discretion to refer the matter to a Labour Officer for determination or disposal in terms of s 93. This is so by virtue of the use of the word “may” in the subsection. It means that a party entitled to the remedy may elect not to take it or waive it if it so wishes. By the same token, the concerned parties may agree to ignore the period of thirty days referred to in the section. The foregoing provisions have been the subject of interpretation by this Court before. In Watyoka v Zupco, supra, the Court discussed, at great length, the effects of the subsection. At 172G, 173 A-D the Court remarked: “In this case, there were delays in the determination of the matter due to the number of postponements at the request of the appellant. At one meeting, the appellant and his legal practitioner attended without submitting the appellant’s response to the allegations. At yet another meeting, the appellant and his legal practitioner walked out before the meeting was closed, as the legal practitioner said he wanted to catch a flight and had other business to do in Harare. When the appellant and his legal practitioner raised the issue of delay, the chairperson did point out to them that it was actually their fault, as they were responsible for the delays. Subsection (6) of s 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made. The section should be read as being only permissive and not restrictive. In my view, the intention of the legislature is to grant relief to a party who is affected by the delay. … Clearly, the referral can only be made before the determination is made. It was probably foreseen that in certain cases one party could frustrate the other by causing delays to the prejudice of the other. That seems to be the reason why the word ‘may’ is used.” The Court went on to observe that the section does not say that a determination should be made within the thirty day period but merely restricts a concerned party from rushing to refer a matter before the expiry of thirty days. It then made the pertinent observation at 173G, 174A. “In this case, the appellant continued to attend the proceedings even after the period of thirty days had expired. He clearly intended to wait for the determination to be made. The section cannot be read as providing for a second determination over and above one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company’s management, as provided for in the code of conduct.” For good measure, because this case also has an element of acquiescence, it is befitting to make reference to the case of Munchville Investments, supra. In that case the employer had consented to the referral of the matter to arbitration before, in bad faith, making an about turn and insisting on conducting fresh disciplinary proceedings. This Court ruled that, having acquiesced, the employer could not be allowed to benefit from the general rule governing irregular proceedings. At p. 4 Patel JA, as he then was, acknowledged the right of an employer to rescind irregular proceedings or dismissal and institute fresh disciplinary proceedings. He went on to say: “Nevertheless, it seems to me that it may be necessary and proper to depart from this general principle in very limited and exceptional circumstances. The justification for so doing springs from the need ‘to advance social justice and democracy in the workplace’ in order, inter alia, to secure ‘the just, effective and expeditious resolution of disputes and unfair labour practices’ as enjoined by s 2A of the Labour Act. The particular circumstances that would warrant such departure is the situation where the employer proceeds in a manner that evinces bad faith or where he actively and explicitly acquiesces to his participation in the alternative proceedings for the resolution of any dispute with the employee.” (The underlining is mine) The Court then concluded at p 6: “On the foregoing facts, I am of the considered opinion that the appellant should not be allowed to benefit, at the respondent’s expense and to her unquestionable prejudice, from the general principle governing the reversal of irregular proceedings and dismissals. To put it crisply, the appellant cannot be permitted to both approbate and reprobate the outcome of conciliation proceedings and the consequent reference to arbitration.” Finally, regarding the relief that the appellant is seeking, the legal position has been articulated in a number of cases by this Court. That a party cannot seek, on appeal, relief that was not sought before the court a quo was discussed in Madyavanhu v Saruchera & Ors SC 75/17 at p. 6 where the Court stated: “An appeal court by nature is one that considers and assesses the correctness or otherwise of the decision of a lower court on any particular issue. Where no such issue is considered by an inferior court, it follows generally, that there is nothing for the appeal court to determine. It is in the appellant’s interest to fully appreciate this point, which was aptly captured in Dynamos Football Club (Pvt) Ltd v ZIFA & Ors 2006 (1) ZLR 346 (S) 355. Malaba JA (as he then was) in that case held that generally a party cannot seek, on appeal relief that they did not seek in the lower court. See also Goto v Goto 2001 (2) ZLR 519 (S) where the court held that it was not open to the appellant in that case, in the absence of an amendment to her declaration, to claim on appeal something which she did not claim in the court a quo. I should add that a relief sought on appeal which the court a quo would not have granted for the reason that it was not sought before it, while not fatally defective per se, is incompetent. It is incompetent because it cannot be granted on appeal. Its consideration, going as it does to the merits of the matter, does not lead to a striking off of the matter. APPLICATION OF THE LAW Most of the appellant’s seven grounds of appeal attack the factual findings of the court a quo and are inelegantly drafted. As already stated, an appeal from the court a quo to this Court is on a point of law only. One assumes that it was upon that realization that Mr Maguchu for the appellant motivated the appeal on the three issues already identified above. It is proposed therefore to consider those issues in turn. Whether the court a quo erred in finding that the Disciplinary Committee had jurisdiction to hear the matter. Mr Maguchu is not correct in saying that the court a quo determined the matter merely on the basis that the period of thirty days prescribed by s 101 (6) of the Act had not expired. A close reading of the judgment of the court a quo reveals that the court a quo disagreed with submissions made on behalf of the appellant that the said period had expired on 21 September 2022 when the issue was first raised. It stated at p 12: “In considering whether or not the thirty day period had passed, it is on record that the applicant was on 26 August 2022 notified to attend the hearing which would be held on 2 September 2022. When the applicant raised loss of jurisdiction as a preliminary point, the Committee ruled that it still had jurisdiction. I agree. From 26 August 2022 to 21 September 2022, from a simple calculation, a period of thirty days had not passed.” Having said that, the court a quo went on to refer, inter alia, to the judgment of this Court in Watyoka v Zupco (Northern Division), supra, and in particular to the passages already quoted above. It concluded that conditions under which a matter can be referred to the Labour Officer were not met. It is precisely on that basis that the matter was determined. The reasoning in the Watyoka case, which is on all fours with the present case, is that it is not open to a party to cause delays and then seek to refer the matter to a Labour Officer on the ground that thirty days have expired. This Court was emphatic that where, despite the expiry of the thirty days, a party continues to attend the disciplinary proceedings, that is taken as an intention to defer to the determination of the tribunal seized with the matter. In this case, the court a quo found that the appellant caused the delay in the finalization of the matter. That is a factual finding that may not be appealed by dint of s 92F (1). In fact, looking at the minutes of the hearing referred to in detail above, the appellant can scarcely mount a reasonable argument against that finding. So intent was the appellant at seeking postponements that he kept on doing so right up to the end. What is however more important is that the court a quo was bound by the judgment of this Court in Watyoka by virtue of the principle of stare decisis. It had no choice in the matter but to simply apply that judgment. Having found that the appellant was trying to benefit from his own default, the court a quo cannot be faulted for concluding that the requirements for the referral of the matter were not met. In my view that resolves the issue. For completeness, I should state also that, by participating in the proceedings all the way to the wire, the appellant should be taken to have acquiesced to the disciplinary proceedings. By the authority of Munchville Investments, supra, he cannot be allowed to turnaround after the matter has been concluded against him and seek to challenge the proceedings. He is not allowed to both approbate and reprobate the outcome of the proceedings. Whether the court a quo erred in finding that all the procedural issues raised by the appellant were disposed of The issue which the appellant says was not determined by the Disciplinary Committee relates to his claim that on 11 October 2022, the first respondent agreed that the dispute had been properly referred to a Labour Officer. To that extent, the appellant’s case is that the parties agreed to the referral of the matter. The findings I have made above on the existence of the Disciplinary Committee’s jurisdiction and the related aspect of the appellant’s acquiescence, render this issue redundant. The question whether the parties agreed to refer the matter to a Labour Officer pales into insignificance. In any event, the court a quo made a factual finding that the only preliminary point that was before the Committee related to the existence of jurisdiction and that it was disposed of. Again that not being a question of law, at least in the manner it is worded, it cannot be properly taken on appeal. Again, there is no misdirection on this aspect. Whether the appellant’s right to legal representation was violated The appellant protests an alleged violation of his right to legal representation on the basis that his legal practitioner of choice, Mr Maguchu, was not available when the matter was heard and determined. In his view, the refusal to postpone the matter on 13 October 2022 resulted in a breach of his right to legal representation. Regrettably the impression given, which now manifests itself with undesirable frequency, is that a postponement is a fundamental right. The time has come to disabuse legal practitioners of the fallacious notion that they are the ones who run court rolls. When a matter is set down for hearing, on notice to the parties concerned, it behoves them all to avail themselves for the hearing. It is completely wrong to think that a properly set down matter will be postponed merely at the whim of a legal practitioner, who, in the majority of cases, would have double-booked himself or herself or worse still, would be preferring one client over the other at the unquestionable prejudice of others and the Court. It is trite that a postponement is not there for the asking. By the same token, the right to counsel of choice has limitations. It is not absolute. A litigant is only entitled to the enjoyment of that right within the confines of the operations of the Court or tribunal before which he or she is appearing. With silky eloquence, the point was made in Midkwe Minerals (Pvt) Ltd v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Ors 2013 (2) ZLR 197 (S) at 202B thus: “The grant or otherwise of a postponement is in the discretion of the court. A party seeking the grant of a postponement or other indulgence at the hearing must come prepared for a grant or refusal of its request. A legal practitioner must be prepared in the event of a refusal by the court to grant a postponement, to proceed with the hearing if so ordered. In this case the legal practitioners for the appellant had filed heads of argument as far back as 10 July 2013. To appear before the Court totally unprepared and totally ignorant of the merits of the case in my view smacks of negligence on the part of the legal practitioner.” Happily in this case, once the application for a postponement was refused, the legal practitioner seeking it on behalf of the appellant requested and was granted time to prepare. Thereafter she fully represented the appellant throughout the proceedings including cross-examining witnesses. The appellant having been fully represented by counsel from the same law firm he had engaged, cannot complain of a violation of his right to legal representation. DISPOSITION A party who causes a delay in the finalization of a labour dispute being heard under an employment code of conduct resulting in the period of thirty days prescribed by s 101 (6) of the Act for the determination of the matter expiring, cannot rely on the provision to allege lack of jurisdiction on the part of the employer. This is so because the provision is for the benefit of a party who seeks to prevent undue delays in the finalization of a labour dispute and not for those who seek to abuse it by ousting the employer’s jurisdiction. The grant of a postponement of a matter that has been properly set down for hearing is an indulgence afforded at the discretion of the court or tribunal to deserving cases. It is not there for the asking. Where it has been refused, that does not amount to a violation of the losing party’s right to legal representation or even a fair trial. The appeal is without merit. It ought to fail. The costs should follow the result in the usual way. In the result, it be and is hereby ordered that: “The appeal is dismissed with costs.” BHUNU JA : I agree KUDYA JA : I agree Messrs Maguchu & Muchada, appellant’s legal practitioners Messrs Kantor & Immerman, 1st, respondent’s legal practitioners Judgment No. SC 63/25 Civil Appeal No. SC 258/25 11 Judgment No. SC 63/25 Civil Appeal No. SC 258/25 11 Judgment No. SC 63/25 Civil Appeal No. SC 258/25 11 REPORTABLE (63) BRIGHT GUNZO v ZIMBABWE REVENUE AUTHORITY (2) JOEL SHUMBAMHINI N.O (3) L PESWA DUBE N.O (4) ENERST MASVAIRE N.O SUPREME COURT OF ZIMBABWE BHUNU JA, MATHONSI JA & KUDYA JA HARARE: 17 JUNE 2025 & 17 JULY 2025 A.K Maguchu, for the appellant S. Bhebhe, for the first respondent No appearance for the second, third and fourth respondents MATHONSI JA: On 28 April 2023 the Labour Court (the court a quo) dismissed an application for review made by the appellant. The appellant was dissatisfied by that outcome and filed the present appeal before this Court. THE FACTS The appellant was employed by the first respondent, a statutory body established in terms of s 3 of the Revenue Authority Act [Chapter 23:11], as its Head of Human Capital Administration in the Human Capital Division. The second respondent was cited in his official capacity as the chairperson, while both the third and fourth respondents were cited as committee members of the Disciplinary Committee that dealt with a disciplinary case involving the appellant. The appellant was suspected of having committed acts of misconduct as a result of which he was suspended from duty, with pay, in terms of Clause 10.1 of the first respondent’s Code of Conduct on 12 July 2022. The initial suspension was to facilitate investigations into the alleged misconduct. Following those investigations, four counts of misconduct were preferred against him. Accordingly, by letter dated 26 August 2022, the appellant was placed on suspension without pay and notice given of a disciplinary hearing scheduled for 2 September 2022. In response, on 1 September 2022, the appellant addressed a letter to a Labour Officer referring the matter in terms of s 101(6) of the Labour Act [Chapter 28:01] (the Act). The basis for such referral was that, in the appellant`s view, more than thirty days had lapsed from the date of the commencement of proceedings against him without a determination being made. At the hearing set for 2 September 2022 the appellant requested a postponement of the hearing, notwithstanding that he had already purported to refer the dispute to a Labour Officer in terms of s 101(6) of the Act. His reason for seeking a postponement was two-fold. Firstly, he wanted the employer to avail to him certain documents or information he had listed, to allow him access to his office and computer and to allow him to interview certain individuals he also listed. Secondly, the appellant sought a postponement because his legal practitioner was “unavailable on that date due to prior commitments”. The minutes of the meeting show that the parties deliberated at length about the application for a postponement and eventually agreed to postpone the matter to 21 September 2022. On 21 September 2022, the appellant raised some preliminary issues pertaining to his referral of the matter to a Labour Officer by letter dated 1 September 2022. His position was that the disciplinary proceedings commenced with his suspension with pay on 12 July 2022. According to him the matter had been properly referred to a Labour Officer, the thirty-day period having expired. During deliberations before the Disciplinary Committee, counsel for the appellant made lengthy submissions and concluded by saying: “Once jurisdiction is lost, any decision by those without jurisdiction is a waste of time. I have no problem with the 30 days being frozen so that there won`t be a re-referral as we wait for the labour officer to determine that issue.” (The underlining is mine) In the end the parties agreed to postpone the matter to 4 October 2022 to enable the appellant`s legal practitioner to file written submissions on the preliminary point he was prosecuting. When the hearing resumed on 4 October 2022, the Disciplinary Committee handed down its ruling on that point. It determined that it still had jurisdiction to proceed with the merits of the matter. Immediately after the ruling, counsel for the appellant again made an application for a postponement. The reason for seeking a further postponement at that stage was stated as: “It is an application for postponement because the defendant`s representative, Mr Maguchu is unavailable today as he is attending a training workshop today and have (sic) asked me to stand in for him and make an application for postponement.” The matter was therefore postponed to 13 October 2022 at the instance of the appellant. Even though the new date was requested by the appellants’ counsel, when the disciplinary hearing re-convened on that date, Mr Maguchu was not in attendance. Ms Makumbe stood in for him and made an application for a further postponement. She stated: “We have an application for a postponement from Mr Muguchu who is attending a Labour Court case in Bulawayo today. We therefore ask that the hearing be postponed to next week. Unfortunately, when there was a postponement last week, the matter had not been diarized. The case had already been heard and it was postponed today. He had not instructed anyone to come and argue the matter because there had been another indication that this matter was now being heard by the Labour officer.” This time the Disciplinary Committee refused to postpone the matter and gave the appellant`s counsel time to study the papers before proceeding with the hearing. On resumption of the hearing the appellant`s counsel came up with another preliminary point. It was submitted on behalf of the appellant that there was a second referral of the dispute to a Labour Officer made on 4 October 2022, the appellant having abandoned the earlier referral I mentioned above. The appellant asserted that the second referral was proper and that the first respondent made a concession to that effect. The first respondent denied making such a concession. After hearing submissions from counsel, the Disciplinary Committee ruled that it still had jurisdiction to determine the merits of the matter. Following a full contested hearing on the merits, the appellant was found guilty of misconduct in count one, namely recommending the recruitment of a non-qualified candidate; guilty of misconduct in count two, namely failure to properly check and manage the payroll leading to duplicate payment of overtime on the payroll; guilty of misconduct in count three, namely failure to properly check and manage payroll, unsigned and incomplete claim forms; and guilty of misconduct in count four, namely refusal to obey a lawful instruction. He was dismissed from employment. On 4 November 2022 the appellant appealed internally to the Appeals Committee against the decision of the Disciplinary Committee which upheld the appeal on one count and dismissed the rest of the appeal but did not vary the penalty of dismissal. Following the dismissal of his internal appeal, the appellant lodged an appeal to the Labour Court under case numbers and LCH 1122/22 ref. LCH 216/23 which appeal was dismissed on the merits. PROCEEDINGS BEFORE THE LABOUR COURT While pursuing an appeal to the Labour Court on the merits, the appellant also filed a review application in that court on three grounds, namely, that: “(a) The disciplinary committee presided over and determined a disciplinary matter over which it had lost jurisdiction by operation of s 101 (6) and or by agreement. (b) The disciplinary committee effectively denied the applicant his right to legal representation by insisting on hearing the matter despite the justified absence of applicant`s attorney adequate time to prepare for hearing (sic). (c) The disciplinary committee erred procedurally by proceeding to hear the merits of the matter without determining procedural issues raised by the applicant and which applicant alleged disposed of the matter without need to consider the merits.” Before the court a quo the appellant sought the following relief: “IT IS ORDERED THAT:- The application is hereby granted. The proceedings that were conducted by the Disciplinary Committee chaired by----- be and are hereby set aside. The respondent is directed to set up an alternative disciplinary committee if it wishes for the hearing of this matter. The respondent is ordered to pay costs of suits.” Before the court a quo, in respect the first ground, the appellant contended that the Disciplinary Committee lost jurisdiction to deal with the matter. In his view, by 4 October 2022, when the hearing was held, a period of more than thirty days had passed. It was further contended that the referral to a Labour Officer was lawful signifying the employer’s loss of jurisdiction to determine the matter. On the second ground, the appellant argued that he was denied legal representation by counsel of his choice when the Disciplinary Committee refused a further postponement and instead gave the stand-in legal practitioner inadequate time to prepare for the hearing. Regarding the third ground, the appellant contended that the lower tribunal did not determine a preliminary issue placed before it, namely that the employer consented to the referral of the dispute to a Labour Officer. Per contra, the first respondent submitted that the lower tribunal applied its mind to both referrals. It made the point that there was never a time when its legal practitioners agreed to have the matter referred to a Labour Officer and that the discussion between the parties at the office of the Labour Officer was misconstrued. The first respondent`s position was that jurisdiction was never lost. On the second ground of review, the first respondent refuted the allegation of denial of legal representation especially as the Labour Court cause-list produced before the lower tribunal only listed cases on the roll and nothing else. The first respondent maintained that when an application for a postponement is made the party making it must expect that it would either be granted or refused. According to the first respondent, when the postponement was refused the legal practitioner in attendance was granted time to prepare for the hearing and, as such, there was no denial of the right to legal representation. With respect to the third ground of review, the first respondent argued that the appellant raised only one preliminary point on the thirty-day period and nothing else. In the first respondent`s view, the said preliminary point was addressed by the lower tribunal. The Court a quo found that the appellant was notified of the hearing on 26 August 2022 which hearing was pencilled for 2 September 2022. In its view, the Disciplinary Committee was correct in finding that the period of thirty days had not lapsed by 21 September 2022. Relying on the authority of Living Waters Theological Seminary v Chikwanha SC 59/21, the court a quo found that the conditions for referral set out in s 101 (6) of the Act had not been met. It reasoned thus at pp 13-14 the judgment: “In the present case, conditions under which a matter can be referred to the labour officer can hardly be said to have been met, whether the referral date be the first of September 2022 or 4 October 2022. This is said in view of the fact that (i) the matter was being considered in terms of a code of conduct (ii) a period of thirty days had not lapsed before the matter was concluded (iii) the referrals appear to have taken the other party by surprise, so under the circumstances the parties did not agree and (iv) the cause of the delay resulting in the allegation of lapse of the thirty day period lay squarely on the shoulders of the applicant. The applicant cannot blame the committee for a delay which he caused. In answer to the question that I posed above, the period of thirty days was not exceeded. If it had been exceeded, it would have been the fault of the applicant. What this means is that the lower tribunal had jurisdiction to determine the matter.” The court a quo also took the view that the matter was being dealt with in terms of a code of conduct which set out time frames. It recognized that the appellant showed an unwillingness to have the matter finalized. It proceeded to dismiss the application with costs. PROCEEDINGS BEFORE THIS COURT Riled by the judgment of the court a quo, the appellant noted the present appeal on the following grounds: “1. The court a quo misdirected itself on the facts in finding that a period of thirty days had not passed between 29 August 2022 and 4 October 2022. 2. The court a quo erred at law in finding that appellant’s justified requests for postponement deprived him of the liberty or right to refer the matter to a Labour Officer under s 101 (6) of the Labour Act. 3. The court a quo seriously misdirected itself on the facts in finding that appellant was the cause of the delays that led to the expiry of thirty days from 29 August 2022 to 4 October 2022. 4. The court a quo erred at law in failing to determine whether the first respondent agreed on 11 October 2022 to have the Labour Officer hear the matter on the merits and consequently whether that agreement deprived the Disciplinary Committee of the jurisdiction to hear the matter. 5. The court a quo erred at law in going on a tangent and determining the matter on the basis of appellant allegedly blowing hot and cold, an issue not raised and or argued before it. 6. The court a quo seriously misdirected itself in finding that there was no justifiable absence of the appellant’s legal practitioner of choice for the disciplinary proceedings of 13 October 2022 and consequently erred in failing to find that appellant was denied his right to be heard. 7. The court a quo seriously misdirected itself in finding that the procedural issues raised by the appellant before the Disciplinary Committee had been considered and disposed of by the Disciplinary Committee, more so when none of the parties had raised and argued that the Disciplinary Committee had determined the preliminary points. RELIEF SOUGHT Appellant prays for the following relief: “1. The appeal succeeds with costs. 2. The judgment of the court a quo be and is hereby set aside and is substituted with the following: ‘1. The application for review succeeds with costs. 2. The proceedings conducted by the first respondent’s Disciplinary Committee resulting in its decision of 2 November 2022 are hereby set aside. 3. Parties are directed to appear before the Labour Officer for a hearing in terms of s 101 (6) of the Labour Act on respondent’s allegations of misconduct against the appellant contained in respondent’s letter to the appellant dated 12 July 2022.’” I mention in passing that the relief sought by the appellant on appeal is not the relief that he sought before the court a quo. Most of the grounds of appeal attack the factual findings of the court a quo without laying the requisite legal foundation for interference with those findings in view of the provisions of s 92 F (1) of the Act. The issues for determination in this appeal therefore are: Whether or not the court a quo erred in finding that the Disciplinary Committee had jurisdiction to hear the matter. Whether or not the court a quo erred in finding that all the procedural issues raised by the appellant had been disposed of. Whether or not the appellant’s right to legal representation was violated. Mr Maguchu, who appeared for the appellant, anchored his motivation of the appeal on the premise that the Disciplinary Committee which presided over the matter had no jurisdiction to do so regard being had that the period of thirty days within which it was allowed by law to do so had expired from the time notification was given. Counsel submitted that as a result of the expiration of that period, the appellant had taken the liberty to refer the matter to a Labour Officer for determination in terms of s 101 (6) of the Act. The referral of the matter to a Labour Officer, so it was argued, whether by letter of 1 September 2022 or that of 4 October 2022, had the effect of taking away the jurisdiction of the Disciplinary Committee. In his view, the finding by the court a quo that the period of thirty days had not lapsed was a glaring misdirection which disposes of the matter completely. Relying on the authority of Mwenye v Lonhro SC 125/2000, Mr Maguchu submitted that the reckoning of the thirty-day period is from the date the employee is notified of disciplinary proceedings instituted against him or her and not from the date of notification of the hearing. In his view, by the time the Disciplinary Committee heard the matter on 13 October 2022, it had lost its jurisdiction. While acknowledging that the case of Living Waters Theological Seminary, supra, is authority for the proposition that the period is reckoned from the date of notification of the hearing, counsel insisted that the issue pales regard being had that the matter had already been referred to a Labour Officer when it was determined. Mr Maguchu, went on to submit that, before the Disciplinary Committee, the appellant argued that the parties had agreed that the referral to a Labour Officer made on 4 October 2022 was proper. In his view, the Disciplinary Committee failed to determine that preliminary issue. Accordingly, so the argument went, by finding that all the preliminary points raised were disposed of the court a quo erred. On the aspect of legal representation, Mr Maguchu submitted that the court a quo erred by refusing a postponement to allow for the attendance of the appellant’s counsel of choice when he was engaged at the Labour Court in Bulawayo. In his view, the latter court took precedence over the Disciplinary Committee. When his attention was drawn to the disparity between the relief that was sought before the court a quo and what the appellant now seeks on appeal, Mr Maguchu submitted that, while that is so, there was nothing that could prevent the court a quo from amending the draft order to bring it in line with what is now being sought on appeal. In resisting the appeal, Mr Bhebhe for the respondent commenced his submissions from the central point that this Court has repeatedly asserted that it is undesirable to determine labour disputes on technicalities but on the merits. He added that an employee accused of misconduct should escape punishment only if he or she is innocent but certainly not on technicalities, especially those raised clearly to escape the consequences of misconduct. In that regard, Mr Bhebhe drew attention to the fact that the appellant participated in all the internal disciplinary procedures including appealing to the Appeals Committee. When he lost internally, he appealed to the court a quo and his appeal was dismissed. All the time the matter was being dealt with on the merits. According to Mr Bhebhe, resort to review proceedings was a desperate effort to escape the consequences of misconduct. Mr Bhebhe further submitted that the period of thirty days lurched onto by the appellant was overrun primarily because of the appellant’s endless requests for postponements. In addition, so the point was made, the parties agreed to do so and the appellant specifically agreed to freeze the period, as shown by the remarks of his legal practitioner which I quoted earlier in this judgment. According to Mr Bhebhe, the relief sought by the appellant in his application for review a quo, which again is quoted above, is indicative of the fact that, throughout the proceedings, the parties were agreed that jurisdiction was not lost. Hence the prayer by the appellant that the matter be remitted before an alternative Disciplinary Committee as opposed to its referral to a Labour Officer. It was strongly argued on behalf of the respondent that the court a quo was correct in its interpretation of s 101 of the Act given that all the while the Disciplinary Committee was seized with the matter. In making that point, counsel referred to the cases of Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170 (S) and Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Mugavha SC 62/19. THE LAW The point of departure is s 92 F (1) of the Act, which is the provision regulating the right of appeal from the court a quo to this Court. It reads: “92 F Appeals against decisions of Labour Court An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.” (The underlining is mine) The present dispute centers around the interpretation of s 101 which provides, in ss (1) for an application for registration of an employment code of conduct to the Registrar by an employment council. Subsection (2) provides for such registration while ss (3) sets out what an employment code of conduct must provide for which includes the procedure to be followed in the case of any breach of the code and the person, committee or authority responsible for implementation. In terms of the then ss (5) before the insertion of a proviso to it by s 31 (b) of Act 11 of 2023 and (6): “(5) Notwithstanding this part, but subject to ss (6), no Labour Officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings. (6) If a matter is not determined within thirty days of the date of the notification referred to in para (c) of subs (3), the employee or employer concerned may refer such matter to a Labour Officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.” Clearly therefore ss (6) gives both the employee and employer involved in a Labour dispute the discretion to refer the matter to a Labour Officer for determination or disposal in terms of s 93. This is so by virtue of the use of the word “may” in the subsection. It means that a party entitled to the remedy may elect not to take it or waive it if it so wishes. By the same token, the concerned parties may agree to ignore the period of thirty days referred to in the section. The foregoing provisions have been the subject of interpretation by this Court before. In Watyoka v Zupco, supra, the Court discussed, at great length, the effects of the subsection. At 172G, 173 A-D the Court remarked: “In this case, there were delays in the determination of the matter due to the number of postponements at the request of the appellant. At one meeting, the appellant and his legal practitioner attended without submitting the appellant’s response to the allegations. At yet another meeting, the appellant and his legal practitioner walked out before the meeting was closed, as the legal practitioner said he wanted to catch a flight and had other business to do in Harare. When the appellant and his legal practitioner raised the issue of delay, the chairperson did point out to them that it was actually their fault, as they were responsible for the delays. Subsection (6) of s 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made. The section should be read as being only permissive and not restrictive. In my view, the intention of the legislature is to grant relief to a party who is affected by the delay. … Clearly, the referral can only be made before the determination is made. It was probably foreseen that in certain cases one party could frustrate the other by causing delays to the prejudice of the other. That seems to be the reason why the word ‘may’ is used.” The Court went on to observe that the section does not say that a determination should be made within the thirty day period but merely restricts a concerned party from rushing to refer a matter before the expiry of thirty days. It then made the pertinent observation at 173G, 174A. “In this case, the appellant continued to attend the proceedings even after the period of thirty days had expired. He clearly intended to wait for the determination to be made. The section cannot be read as providing for a second determination over and above one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company’s management, as provided for in the code of conduct.” For good measure, because this case also has an element of acquiescence, it is befitting to make reference to the case of Munchville Investments, supra. In that case the employer had consented to the referral of the matter to arbitration before, in bad faith, making an about turn and insisting on conducting fresh disciplinary proceedings. This Court ruled that, having acquiesced, the employer could not be allowed to benefit from the general rule governing irregular proceedings. At p. 4 Patel JA, as he then was, acknowledged the right of an employer to rescind irregular proceedings or dismissal and institute fresh disciplinary proceedings. He went on to say: “Nevertheless, it seems to me that it may be necessary and proper to depart from this general principle in very limited and exceptional circumstances. The justification for so doing springs from the need ‘to advance social justice and democracy in the workplace’ in order, inter alia, to secure ‘the just, effective and expeditious resolution of disputes and unfair labour practices’ as enjoined by s 2A of the Labour Act. The particular circumstances that would warrant such departure is the situation where the employer proceeds in a manner that evinces bad faith or where he actively and explicitly acquiesces to his participation in the alternative proceedings for the resolution of any dispute with the employee.” (The underlining is mine) The Court then concluded at p 6: “On the foregoing facts, I am of the considered opinion that the appellant should not be allowed to benefit, at the respondent’s expense and to her unquestionable prejudice, from the general principle governing the reversal of irregular proceedings and dismissals. To put it crisply, the appellant cannot be permitted to both approbate and reprobate the outcome of conciliation proceedings and the consequent reference to arbitration.” Finally, regarding the relief that the appellant is seeking, the legal position has been articulated in a number of cases by this Court. That a party cannot seek, on appeal, relief that was not sought before the court a quo was discussed in Madyavanhu v Saruchera & Ors SC 75/17 at p. 6 where the Court stated: “An appeal court by nature is one that considers and assesses the correctness or otherwise of the decision of a lower court on any particular issue. Where no such issue is considered by an inferior court, it follows generally, that there is nothing for the appeal court to determine. It is in the appellant’s interest to fully appreciate this point, which was aptly captured in Dynamos Football Club (Pvt) Ltd v ZIFA & Ors 2006 (1) ZLR 346 (S) 355. Malaba JA (as he then was) in that case held that generally a party cannot seek, on appeal relief that they did not seek in the lower court. See also Goto v Goto 2001 (2) ZLR 519 (S) where the court held that it was not open to the appellant in that case, in the absence of an amendment to her declaration, to claim on appeal something which she did not claim in the court a quo. I should add that a relief sought on appeal which the court a quo would not have granted for the reason that it was not sought before it, while not fatally defective per se, is incompetent. It is incompetent because it cannot be granted on appeal. Its consideration, going as it does to the merits of the matter, does not lead to a striking off of the matter. APPLICATION OF THE LAW Most of the appellant’s seven grounds of appeal attack the factual findings of the court a quo and are inelegantly drafted. As already stated, an appeal from the court a quo to this Court is on a point of law only. One assumes that it was upon that realization that Mr Maguchu for the appellant motivated the appeal on the three issues already identified above. It is proposed therefore to consider those issues in turn. Whether the court a quo erred in finding that the Disciplinary Committee had jurisdiction to hear the matter. Mr Maguchu is not correct in saying that the court a quo determined the matter merely on the basis that the period of thirty days prescribed by s 101 (6) of the Act had not expired. A close reading of the judgment of the court a quo reveals that the court a quo disagreed with submissions made on behalf of the appellant that the said period had expired on 21 September 2022 when the issue was first raised. It stated at p 12: “In considering whether or not the thirty day period had passed, it is on record that the applicant was on 26 August 2022 notified to attend the hearing which would be held on 2 September 2022. When the applicant raised loss of jurisdiction as a preliminary point, the Committee ruled that it still had jurisdiction. I agree. From 26 August 2022 to 21 September 2022, from a simple calculation, a period of thirty days had not passed.” Having said that, the court a quo went on to refer, inter alia, to the judgment of this Court in Watyoka v Zupco (Northern Division), supra, and in particular to the passages already quoted above. It concluded that conditions under which a matter can be referred to the Labour Officer were not met. It is precisely on that basis that the matter was determined. The reasoning in the Watyoka case, which is on all fours with the present case, is that it is not open to a party to cause delays and then seek to refer the matter to a Labour Officer on the ground that thirty days have expired. This Court was emphatic that where, despite the expiry of the thirty days, a party continues to attend the disciplinary proceedings, that is taken as an intention to defer to the determination of the tribunal seized with the matter. In this case, the court a quo found that the appellant caused the delay in the finalization of the matter. That is a factual finding that may not be appealed by dint of s 92F (1). In fact, looking at the minutes of the hearing referred to in detail above, the appellant can scarcely mount a reasonable argument against that finding. So intent was the appellant at seeking postponements that he kept on doing so right up to the end. What is however more important is that the court a quo was bound by the judgment of this Court in Watyoka by virtue of the principle of stare decisis. It had no choice in the matter but to simply apply that judgment. Having found that the appellant was trying to benefit from his own default, the court a quo cannot be faulted for concluding that the requirements for the referral of the matter were not met. In my view that resolves the issue. For completeness, I should state also that, by participating in the proceedings all the way to the wire, the appellant should be taken to have acquiesced to the disciplinary proceedings. By the authority of Munchville Investments, supra, he cannot be allowed to turnaround after the matter has been concluded against him and seek to challenge the proceedings. He is not allowed to both approbate and reprobate the outcome of the proceedings. Whether the court a quo erred in finding that all the procedural issues raised by the appellant were disposed of The issue which the appellant says was not determined by the Disciplinary Committee relates to his claim that on 11 October 2022, the first respondent agreed that the dispute had been properly referred to a Labour Officer. To that extent, the appellant’s case is that the parties agreed to the referral of the matter. The findings I have made above on the existence of the Disciplinary Committee’s jurisdiction and the related aspect of the appellant’s acquiescence, render this issue redundant. The question whether the parties agreed to refer the matter to a Labour Officer pales into insignificance. In any event, the court a quo made a factual finding that the only preliminary point that was before the Committee related to the existence of jurisdiction and that it was disposed of. Again that not being a question of law, at least in the manner it is worded, it cannot be properly taken on appeal. Again, there is no misdirection on this aspect. Whether the appellant’s right to legal representation was violated The appellant protests an alleged violation of his right to legal representation on the basis that his legal practitioner of choice, Mr Maguchu, was not available when the matter was heard and determined. In his view, the refusal to postpone the matter on 13 October 2022 resulted in a breach of his right to legal representation. Regrettably the impression given, which now manifests itself with undesirable frequency, is that a postponement is a fundamental right. The time has come to disabuse legal practitioners of the fallacious notion that they are the ones who run court rolls. When a matter is set down for hearing, on notice to the parties concerned, it behoves them all to avail themselves for the hearing. It is completely wrong to think that a properly set down matter will be postponed merely at the whim of a legal practitioner, who, in the majority of cases, would have double-booked himself or herself or worse still, would be preferring one client over the other at the unquestionable prejudice of others and the Court. It is trite that a postponement is not there for the asking. By the same token, the right to counsel of choice has limitations. It is not absolute. A litigant is only entitled to the enjoyment of that right within the confines of the operations of the Court or tribunal before which he or she is appearing. With silky eloquence, the point was made in Midkwe Minerals (Pvt) Ltd v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Ors 2013 (2) ZLR 197 (S) at 202B thus: “The grant or otherwise of a postponement is in the discretion of the court. A party seeking the grant of a postponement or other indulgence at the hearing must come prepared for a grant or refusal of its request. A legal practitioner must be prepared in the event of a refusal by the court to grant a postponement, to proceed with the hearing if so ordered. In this case the legal practitioners for the appellant had filed heads of argument as far back as 10 July 2013. To appear before the Court totally unprepared and totally ignorant of the merits of the case in my view smacks of negligence on the part of the legal practitioner.” Happily in this case, once the application for a postponement was refused, the legal practitioner seeking it on behalf of the appellant requested and was granted time to prepare. Thereafter she fully represented the appellant throughout the proceedings including cross-examining witnesses. The appellant having been fully represented by counsel from the same law firm he had engaged, cannot complain of a violation of his right to legal representation. DISPOSITION A party who causes a delay in the finalization of a labour dispute being heard under an employment code of conduct resulting in the period of thirty days prescribed by s 101 (6) of the Act for the determination of the matter expiring, cannot rely on the provision to allege lack of jurisdiction on the part of the employer. This is so because the provision is for the benefit of a party who seeks to prevent undue delays in the finalization of a labour dispute and not for those who seek to abuse it by ousting the employer’s jurisdiction. The grant of a postponement of a matter that has been properly set down for hearing is an indulgence afforded at the discretion of the court or tribunal to deserving cases. It is not there for the asking. Where it has been refused, that does not amount to a violation of the losing party’s right to legal representation or even a fair trial. The appeal is without merit. It ought to fail. The costs should follow the result in the usual way. In the result, it be and is hereby ordered that: “The appeal is dismissed with costs.” BHUNU JA : I agree KUDYA JA : I agree Messrs Maguchu & Muchada, appellant’s legal practitioners Messrs Kantor & Immerman, 1st, respondent’s legal practitioners