Shenje vs T. Pasipamire N.O and Another (LC/H/225/25) [2026] ZWLC 7 (30 January 2026)

IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/5/26 HARARE, 28 JULY 2025 CASE NO LC/H/446/25 ERNEST SHENJE APPLICANT T. PASIPAMIRE N.O. 1st RESPONDENT MINISTER OF TRANSPORT & 2nd RESPONDENT INFRASTRUCTURE DEVELOPMENT Before the Honourable G. Musariri Judge: For Applicant - T. Vhudzijena, Attorney For Respondent -l.. Nobiri, Attorney MUSARIRI, J: In terms of section 89(1) of the Labour Act Chapter 28:01, applicant applied to this Court for the review of his dismissal from employment by Respondents. The grounds for review were quartet thus, “1. The First Respondent’s decision to conduct the Applicant’s disciplinary hearing on the 7th of April 2025 in the Applicant’s absence was grossly irregular and unreasonable in that it violated the employee’s right to be heard despite clear evidence that the hearing had been postponed to the 8th of April 2025, thereby constituting a flagrant violation of Section 69(2) of the Constitution of Zimbabwe which guarantees the right to a fair hearing. 2. The First Respondent’s decision to proceed with the hearing on the 7th of April 2025 was grossly irregular in that it deliberately and maliciously disregarded prior written communication confirming that the hearing had been postponed to the 8th of April 2025, thereby denying the Applicant a reasonable opportunity to make adequate representations in violation of the principles of natural justice and Section 65(1) of the constitution of Zimbabwe which guarantees fair labour practices. 3. The First Respondent’s decision to proceed with the disciplinary hearing on the 7th of April 2025 was grossly irregular in that he proceeded with charges against the Applicant in the wake of materially changed circumstances, particularly that the Applicant had been turned into a State witness by the Zimbabwe Anti-Corruption Commission in the pending Criminal matter where he was initially a co-accused, which demonstrates the 1st Respondent’s bias, and malice in the proceedings. 4. The Disciplinary Committee chaired by First Respondent was improperly constituted in that the First Respondent ought to have recused himself, having dealt with a prior disciplinary hearing against the Applicant, which puts to question his probity, impartiality and independence as required by Section 69(2) of the Constitution of Zimbabwe, thereby tainting the entire disciplinary process with bias and/or appearance of bias.” Applicant then prayed for his reinstatement or damages in lieu of reinstatement. 2nd Respondent’s opposing affidavit countered that, “5…The Applicant alleges that the disciplinary hearing held on 7th April 2025 was irregular and unreasonable. However it is clear that the Applicant was operating in bad faith in a bid to delay the process as the Applicant evidently kept postponing the hearing dates. The applicant was invited for a disciplinary hearing on the 10th of October 2024 and the Applicant responded through their Legal Practitioner that they were not available on the proposed dates. They however proposed an alternative date being 25 November 2024, which they later refuted despite them proposing the said dates. We however wrote to the Applicant further proposing the 9th December 2024 to be the hearing date and the Applicant through his Legal Practitioners requested for a postponement, proposing the 7th of March 2024 (sic) which they later sought to defer. It is quite clear that the Applicant was operating in bad faith, in any event the Principal at Applicant’s Legal Practitioner’s firm could have assigned another Practitioner to represent the Applicant. On the 7th of April the Legal Practitioner representing the Applicant that they were not appearing at the disciplinary hearing citing changed circumstances in the Applicant’s criminal matter, a matter which was separate from the proceedings of the disciplinary hearing.” 1st Respondent prayed that the application be dismissed. The pleading raise issues which will be addressed ad seriatim A Whether the 1st Respondent’s decision to conduct the disciplinary hearing in Applicant’s absence was grossly irregular and unreasonable: This issue is extensively dealt with in the 8. On 7 April 2025, I was instructed by my principal, Mr Admire Rubaya, to draft a letter to the 1st Respondent advising of materially changed circumstances in the Applicant’s case, specifically that the Applicant had been turned into a State witness by the Zimbabwe Anti-Corruption Commission in relation to criminal charges that were premised on the same allegations that had been preferred against him by the 2nd Respondent. 9. I personally drafted this letter, which also requested a further postponement of the hearing in light of the changed circumstances. The letter proposed that, should the First Respondent and his Committee persist with the charges against the Applicant, we were amenable to having the hearing on the 7th of May 2025. 10. I ensured that this letter was duly served on both the 1st and 2nd Respondents on the 7th of April 2025. 11. Following the delivery of the said letter dated 7th April 2025, I received telephone call from Mr Ndongwe, the Secretary of the Disciplinary Committee, on the same day. 12. During this conversation, Mr Ndongwe expressly confirmed receipt of our letter regarding the changed circumstances and the request for postponement. 13. Mr Ndongwe further advised me that he would communicate with the Committee members and revert to us with a new alternative date for the hearing. 17, Despite Mr Ndongwe’s verbal assurance that he would advise on a new hearing date no such communication was ever received from either the 1st or 2nd Respondent.” Regrettably the record does not have a similar exposition from Mr Ndongwe.. The documents on record show that the hearing suffered a series of postponements sought by appellant. However the parties eventually agreed that the hearing be held on 8th April 2025. However on the 7th April 2025 appellant requested a further postponement. Appellant stated on oath that Mr Ndongwe, the Secretary to the disciplinary Committee, undertook to revert with a new date of hearing. He did not do so. This vital piece of evidence was not refuted by respondents. Undisputed statements on oath are generally taken as admitted. See Chihwayi v Atish 2007(2)ZLR 89 Per Sandura JA AT 93F “The simple rule of law is that what is not denied in affidavits must be taken to be admitted.” According to the discharge letter a hearing was held on 7th April 2025 in appellant’s absence. The papers do not show any reason why a hearing was held on that date. Pressed on this point respondents’ attorney stated that the hearing was in fact held on the 7th May 2025. This new piece of evidence contradicts the date of hearing on the critical documents on record. There was nothing on oath to explain the discrepancy. It therefore follows that the hearing on 7th April 2025 was held without due tice to appellant in violation of the audi alteram partem rule. Respondent sought to rely on the Zesa v Stevano case to say appellant waived his right to be heard. The Zesa case is distinguishable because Stevano had been given notice of the hearing. The right to be heard is a fundamental tenet of natural justice. Its violation inevitably leads to nullification of the impugned proceedings. B Whether the 1st Respondent’s decision to conduct the disciplinary hearing in Applicant’s absence violated Applicant’s Constitutional rights: The resolution of the 1st issue above shows that it is unnecessary to invoke the Constitution of Zimbabwe, 2013 in order to determine this matter. The doctrine of constitutional avoidance eschews resort to the Constitution where subsidiary laws adequately deal with a matter. CONCLUSION The appeal abounds with merit and ought to succeed. The Court will set aside appellant’s dismissal. However as the judgement does not deal with the merits of the charge of misconduct, respondents are at liberty to reinstate the charges as they are best advised. Wherefore it is ordered that: The appeal be and is hereby allowed, The dismissal from employment of appellant by respondents is set aside 3(a) 2nd Respondent shall reinstate appellant without loss of salary, benefits, or (b) 2nd Respondent shall pay Appellant damages in lieu of reinstatement in a sum Either agreed by the parties or assed by this Court; and Each party shall bear its own costs. G MUSARIRI J-U-D-G-E IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/5/26 HARARE, 28 JULY 2025 CASE NO LC/H/446/25 ERNEST SHENJE APPLICANT T. PASIPAMIRE N.O. 1st RESPONDENT MINISTER OF TRANSPORT & 2nd RESPONDENT INFRASTRUCTURE DEVELOPMENT Before the Honourable G. Musariri Judge: For Applicant - T. Vhudzijena, Attorney For Respondent -l.. Nobiri, Attorney MUSARIRI, J: In terms of section 89(1) of the Labour Act Chapter 28:01, applicant applied to this Court for the review of his dismissal from employment by Respondents. The grounds for review were quartet thus, “1. The First Respondent’s decision to conduct the Applicant’s disciplinary hearing on the 7th of April 2025 in the Applicant’s absence was grossly irregular and unreasonable in that it violated the employee’s right to be heard despite clear evidence that the hearing had been postponed to the 8th of April 2025, thereby constituting a flagrant violation of Section 69(2) of the Constitution of Zimbabwe which guarantees the right to a fair hearing. 2. The First Respondent’s decision to proceed with the hearing on the 7th of April 2025 was grossly irregular in that it deliberately and maliciously disregarded prior written communication confirming that the hearing had been postponed to the 8th of April 2025, thereby denying the Applicant a reasonable opportunity to make adequate representations in violation of the principles of natural justice and Section 65(1) of the constitution of Zimbabwe which guarantees fair labour practices. 3. The First Respondent’s decision to proceed with the disciplinary hearing on the 7th of April 2025 was grossly irregular in that he proceeded with charges against the Applicant in the wake of materially changed circumstances, particularly that the Applicant had been turned into a State witness by the Zimbabwe Anti-Corruption Commission in the pending Criminal matter where he was initially a co-accused, which demonstrates the 1st Respondent’s bias, and malice in the proceedings. 4. The Disciplinary Committee chaired by First Respondent was improperly constituted in that the First Respondent ought to have recused himself, having dealt with a prior disciplinary hearing against the Applicant, which puts to question his probity, impartiality and independence as required by Section 69(2) of the Constitution of Zimbabwe, thereby tainting the entire disciplinary process with bias and/or appearance of bias.” Applicant then prayed for his reinstatement or damages in lieu of reinstatement. 2nd Respondent’s opposing affidavit countered that, “5…The Applicant alleges that the disciplinary hearing held on 7th April 2025 was irregular and unreasonable. However it is clear that the Applicant was operating in bad faith in a bid to delay the process as the Applicant evidently kept postponing the hearing dates. The applicant was invited for a disciplinary hearing on the 10th of October 2024 and the Applicant responded through their Legal Practitioner that they were not available on the proposed dates. They however proposed an alternative date being 25 November 2024, which they later refuted despite them proposing the said dates. We however wrote to the Applicant further proposing the 9th December 2024 to be the hearing date and the Applicant through his Legal Practitioners requested for a postponement, proposing the 7th of March 2024 (sic) which they later sought to defer. It is quite clear that the Applicant was operating in bad faith, in any event the Principal at Applicant’s Legal Practitioner’s firm could have assigned another Practitioner to represent the Applicant. On the 7th of April the Legal Practitioner representing the Applicant that they were not appearing at the disciplinary hearing citing changed circumstances in the Applicant’s criminal matter, a matter which was separate from the proceedings of the disciplinary hearing.” 1st Respondent prayed that the application be dismissed. The pleading raise issues which will be addressed ad seriatim A Whether the 1st Respondent’s decision to conduct the disciplinary hearing in Applicant’s absence was grossly irregular and unreasonable: This issue is extensively dealt with in the 8. On 7 April 2025, I was instructed by my principal, Mr Admire Rubaya, to draft a letter to the 1st Respondent advising of materially changed circumstances in the Applicant’s case, specifically that the Applicant had been turned into a State witness by the Zimbabwe Anti-Corruption Commission in relation to criminal charges that were premised on the same allegations that had been preferred against him by the 2nd Respondent. 9. I personally drafted this letter, which also requested a further postponement of the hearing in light of the changed circumstances. The letter proposed that, should the First Respondent and his Committee persist with the charges against the Applicant, we were amenable to having the hearing on the 7th of May 2025. 10. I ensured that this letter was duly served on both the 1st and 2nd Respondents on the 7th of April 2025. 11. Following the delivery of the said letter dated 7th April 2025, I received telephone call from Mr Ndongwe, the Secretary of the Disciplinary Committee, on the same day. 12. During this conversation, Mr Ndongwe expressly confirmed receipt of our letter regarding the changed circumstances and the request for postponement. 13. Mr Ndongwe further advised me that he would communicate with the Committee members and revert to us with a new alternative date for the hearing. 17, Despite Mr Ndongwe’s verbal assurance that he would advise on a new hearing date no such communication was ever received from either the 1st or 2nd Respondent.” Regrettably the record does not have a similar exposition from Mr Ndongwe.. The documents on record show that the hearing suffered a series of postponements sought by appellant. However the parties eventually agreed that the hearing be held on 8th April 2025. However on the 7th April 2025 appellant requested a further postponement. Appellant stated on oath that Mr Ndongwe, the Secretary to the disciplinary Committee, undertook to revert with a new date of hearing. He did not do so. This vital piece of evidence was not refuted by respondents. Undisputed statements on oath are generally taken as admitted. See Chihwayi v Atish 2007(2)ZLR 89 Per Sandura JA AT 93F “The simple rule of law is that what is not denied in affidavits must be taken to be admitted.” According to the discharge letter a hearing was held on 7th April 2025 in appellant’s absence. The papers do not show any reason why a hearing was held on that date. Pressed on this point respondents’ attorney stated that the hearing was in fact held on the 7th May 2025. This new piece of evidence contradicts the date of hearing on the critical documents on record. There was nothing on oath to explain the discrepancy. It therefore follows that the hearing on 7th April 2025 was held without due tice to appellant in violation of the audi alteram partem rule. Respondent sought to rely on the Zesa v Stevano case to say appellant waived his right to be heard. The Zesa case is distinguishable because Stevano had been given notice of the hearing. The right to be heard is a fundamental tenet of natural justice. Its violation inevitably leads to nullification of the impugned proceedings. B Whether the 1st Respondent’s decision to conduct the disciplinary hearing in Applicant’s absence violated Applicant’s Constitutional rights: The resolution of the 1st issue above shows that it is unnecessary to invoke the Constitution of Zimbabwe, 2013 in order to determine this matter. The doctrine of constitutional avoidance eschews resort to the Constitution where subsidiary laws adequately deal with a matter. CONCLUSION The appeal abounds with merit and ought to succeed. The Court will set aside appellant’s dismissal. However as the judgement does not deal with the merits of the charge of misconduct, respondents are at liberty to reinstate the charges as they are best advised. Wherefore it is ordered that: The appeal be and is hereby allowed, The dismissal from employment of appellant by respondents is set aside 3(a) 2nd Respondent shall reinstate appellant without loss of salary, benefits, or (b) 2nd Respondent shall pay Appellant damages in lieu of reinstatement in a sum Either agreed by the parties or assed by this Court; and Each party shall bear its own costs. G MUSARIRI J-U-D-G-E