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Herald Reporter
The Labour Court has stopped a disciplinary hearing by the City of Harare for principal housing director Mr Edgar Dzehonye, pending a determination by the same court over an application seeking to remove the chairperson of the disciplinary committee.
In the main application, Mr Dzehonye wants the disciplinary proceedings presided over by Mr Jabulani Duve in respect of the matter between him and the city council set aside in their entirety.
He also wants Mr Duve to be removed from participating, presiding over and/or influencing the disciplinary proceedings in any manner.
Mr Dzehonye wants the City of Harare to be ordered to conduct the disciplinary proceedings in terms of its Code of Conduct, being Statutory Instrument 13 of 2015.
In her judgement in respect of the application to stay the proceedings until the main application is heard, Labour Court judge Justice Betty Chidziva said: “The disciplinary proceedings presided over by the First Respondent Jabulani Duve in respect of the matter between Applicant (Mr Dzehonye) and Second Respondent (City of Harare) be and is hereby stayed pending the determination of the Applicant’s application of review under LC/H/149/21.”
In the application at the Labour Court, Mr Dzehonye said Mr Duve had “indicated his impatience and readiness to proceed with the hearing notwithstanding that there is a review application pending before this Honourable Court under LC/H/149/21”.
He said his actions had the effect of not only undermining the integrity of the pending process, but had the ultimate effect of rendering those proceedings academic.
“First Respondent (Mr Duve) clearly has an undoubted interest in the cause in that apart from him superintending over all disciplinary proceedings in the Second Respondent (City of Harare) set up, he also sets up the prosecution teams and is consulted in the secondment of the defence team,” said Mr Dzehonye.
“His involvement, particularly presiding over the disciplinary proceedings, has the effect of throwing through the window the old and time honoured principles of the audi alteram partem rule as well as the nemo judex in sua causa.
“First Respondent cannot be judge, prosecutor and defence attorney as he seeks to do.”
Mr Dzehonye said Mr Duve had made it clear that he would only defer the proceedings upon the court ordering him to stay them.
He accused Mr Duve of alternating the chairmanship of the disciplinary committee with Mr Obert Mutonhori without tendering any explanation.
“This demonstrates First Respondent (Mr Duve)’s live interest in the cause against me,” he said. “At the very least, an explanation ought to have been tendered as regards the stepping down of Mr Mutonhori and the assumption of chairmanship by First Respondent.”
Mr Dzehonye accused Mr Duve of insisting and ordering proceedings of the disciplinary hearing to go ahead even if there was no quorum.
“This is contrary to Clause 11.5(a) of SI 13/2015,” he said. “If there is no quorum at the second hearing, the matter ought (as a matter of law) to be referred to a designated agent.
“First Respondent (Mr Duve) has persistently and without just cause ignored this clear provision.”
Mr Dzehonye said the hearing had lapsed 30 days since commencement, a move that required it to be referred to a designated agent.
He said when his attorney requested for the matter to be deferred on account of her visible illness, Mr Duve insisted on proceeding with the hearing.
“The proceedings were only aborted when my lawyer literally broke down,” he said. “Clearly, apart from First Respondent’s conduct being a clear indication of interest in the cause, there is no justification for him insisting to proceed in this manner.
“The First Respondent (Mr Duve) has a duty to act impartially. He has a duty to create the impression of fairness and must be seen not to be pitching his tent with one side.”
Mr Dzehonye was suspended from work on August 19 last year with full pay and benefits over allegations of misconduct with regards to land allocations.
The suspension was lifted on October 1 last year and he was placed on Covid-19 induced leave pending finalisation of the disciplinary hearing.
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