EUBYNECIL MOYANA

versus

TRIANGLE LIMITED

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 21 November 2016 & 21 March 2018

Opposed Application

T. Marume, for the applicant

E.T Moyo, for the respondent

            ZHOU J: This is an application for the setting aside of the dismissal of the applicant from his employment with the respondent. Although the application on the face of it is clearly one for review the draft order seeks declaratatory relief. The applicant’s draft order invites the court to declare his dismissal from employment to be irregular and therefore null and void. The applicant also asks the court to order his reinstatement without loss of benefits. The application is opposed by the respondent.

            The background facts to this dispute are as follows. The applicant was employed by the respondent as an ambulance driver. On 3 November 2000 he was involved in a road traffic accident when his ambulance collided with a tractor. The evidence on record suggests that after the accident a breathalyser test was conducted which revealed that he was not under the influence of alcohol when the accident took place. The results of the breathalyser test do not form part of the record. On the same day some five or so hours after the accident blood samples were taken from him and submitted to a laboratory for testing. The results from the laboratory revealed an alcohol content of 260.0 mg/dl, which is significantly higher than the 80mg/dl which is the maximum permissible for a person to drive a motor vehicle at law. Based on the above results, the respondent charged the applicant with the misconduct of driving under the influence of alcohol. He was found guilty of misconduct and dismissed from employment. Internal appeals were equally dismissed. On 18 May 2007 the applicant instituted the instant application.

            The grounds of review as set out in the court application are as follows:

            “(a)      The Disciplinary Committee erred in not considering the negative results of the