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Attorney Arthur Marara, Harare (2026)

08/03/2024

HOW TO CHANGE YOUR NAME IN FOUR STEPS

One of the constant inquiries that I get from people is, *"How do I change my name”*. There are number of people who are stuck with names that they no longer want, and do not know what to do with these names. The good news is that you can actually change your first name(s) and surname if you so wish.

There is a legal procedure for this. Well, in this instalment I am going to demystify the whole subject of change of name, and show you what you need do to change your name legally in *four (4)* easy steps.

*You need a Notary Public*
I have seen several people in town and on social media advertising that they can do "change of names". That is illegal as only Notaries Public are allowed to preside over the process, and most importantly, they do not advertise. Lawyers are not allowed to advertise. Do not just go to anyone who claims they can assist you with the process. You need a Notary Public. The legal and ethical requirement is that you are supposed to appear before a Notary Public. This means you should actually know the person who is handling the matter for you as a Notary Public. A Notary Public is lawyer who is admitted as a Notary Public. The difference between lawyers and notaries public is simple, all notaries public are lawyers, but not all lawyers are notaries public.

* 1: Notarial Deed of Change of Name*
The Notary Public will prepare a document called, a Notarial Deed of Change of Name for you. You will have to appear before the Notary Public together with two witnesses and sign the Deed. Once the Deed has been signed it will be notarised.

* 2: Give Legal Notice of the Deed*
You have seen these legal notice of Change of Name. Once you have appeared before the Notary Public you need to give Notice to the world that you have changed your name. The purpose of this is for the world to know that you have changed your name, and if anyone has any objections to this deed, they can lodge it. The standard period for the notice is two weeks. The Notice has to be published in the Government Gazette, and a newspaper circulating in your area or wide circulation. The Herald for example is one such newspaper with wide circulation.

* 3: Lodging of the Deed*
The Notary Public will lodge the Deed with the Deeds Office for the registration of the Deed. Once the Deed has been registered, it becomes a public document meaning anyone has access to it. There are standard fees charged by the Deeds Office. These change from time to time. Your Notary Public will advise you of the costs including the costs for the Notices mentioned earlier.

* 4: Change your Birth Certificate*
Once the Deeds Office has registered the change of name, armed with the Notarial Deed of Change of Name, you head to the Registrar of Births and Deaths' Office so that you formalise the change of name through change of the Birth Certificate to indicate the new name. Please keep the Notices you received from the Government Gazette and the newspaper as these would be needed at the Registrar's Office.

You also need to update your Identity Documents for example your National ID, Passport and Driver's Licence so that it reflects the new name.

*Do you change your academic certificates?*
You do not necessarily need to change these. You use the Notarial Deed of Change of Name to explain the change of name. This will suffice. The Notarial Deed of Change of Name has to be neatly prepared so that its durable. You will need it along the way.
Once you do this, you are good to go with your new name. I trust that this has helped gain some perspective on one of the frequently asked questions in my practice of law.

In the next article, I will write on *HOW TO CHANGE YOUR FIRST NAME LEGALLY*

*LEGAL DISCLAIMER*: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Stay Inspired

*Arthur Marara* | LLB (Hons) UZ, LLM (UZ)
Attorney.| Bestselling Author |. Human Capital Trainer|.
Business Speaker |. Thought Leader |. Law Lecturer |. Consultant |.
Coach |. Legal Proctor (UZ)
+263772467255 (Calls)
WhatsApp: +263780055152

16/08/2023

Shout out to my newest followers! Excited to have you onboard!

Sibongile R Nyadore Mhangachena, Patience Gombedza, Felix Chauke

25/07/2022

HOW TO CHANGE YOUR NAME LEGALLY
One of the constant inquiries that I get from people is, "How do I change my name". There are number of people who are stuck with names that they no longer want, and do not know what to do with these names. The good news is that you can actually change your first name(s) and surname if you so wish. There is a legal procedure for this. Well, in this instalment I am going to demystify the whole subject of change of name, and show you what you need do to change your name legally.

Do you want to change your name?
If your answer is yes, the good news is that you can change your name anytime. The common law allows you to change your first name(s) or surname to whatever you wish as long as it's not meant to deceive or defraud, and you are over the age of 16. In Zimbabwe, if you are not yet an adult, you will need the assistance of an adult to undertake this process on your behalf.

Why do people change names?
Before demonising people for changing their names, you need to understand that this is their individual right in terms of the law. It is also yours, so if you do not exercise it, do not demonise or attack the people who are exercising it. In fact, globally some prominent people changed their names. Many would know Martin Luther King Junior. He was born, Michael Luther King Jr, until his father decided to adopt the name Martin Luther King Jr. Let me give a few more international examples here;
- Miley Cyrus was born Destiny Hope Cyrus, but officially changed her name in January 2008.
- Katheryn Elizabeth Hudson aka Katy Perry
- Eric Marlon Bishop aka Jamie Foxx
- Carlos Irwin Estevez aka Charlie Sheen
- Onika Tanya Maraj aka Nicki Minaj
- Peter Gene Bayot Hernandez aka Bruno Mars
- Reginald Kenneth Dwight aka Elton John
- Mark Vincent aka Vin Diesel
- Robyn Rihanna Fenty aka Rihanna
- Caryn Elaine Johnson aka Whoopi Goldberg

There are several prominent people in Zimbabwe who also changed their names. This practice is very legal and very common. I would not want to pick names as these are in the public domain. There are various reasons why people opt to change their names, and below are some of them. Please note that reasons vary from person to person;
- Marriage or civil partnership (e.g. Bhirijeti Sponono marries Abhero Mudazvinhu and assumes his surname. There are also men assume their spouses' surname. It's perfectly legal.)

- Adoption, or marriage of a custodial parent
- Divorce or estrangement of parents
- Immigration / adaptation of the name to a different language or script (e.g. if you are foreigner and you become a Zimbabwean national, you are not barred from changing your name)
- To avoid a stalker or harassment
- Religious conversion and/or deconversion, ordination or return to lay status
- To choose a surname associated with a hobby, interest, or accomplishment (e.g., old name Abhero Mutanhi, new name Abhero Mhukadzesango)
- To receive an inheritance conditional on adopting the name of the deceased (this reason was once quite common in landowning families in other parts of the world)
- To replace a name which might be considered undesirable with a more desirable one. There are names which by virtue of the evolving nature of language sound now sound obscene. There was one Legal Notice of change of name that went viral with a an individual shortening their name for the sake of "decency".
- To dissociate themselves from a famous or infamous person. For example you share surname with an infamous armed robber or criminal and your name is frequently used in many places.
- To identify with a famous or infamous person
- To dissociate themselves from a family black sheep (e.g., relatives of Adolf Hi**er). One of Pablo Escobar's children had to change his name so that he could have a normal life after the demise of his drug lord father.
- To dissociate themselves from an ethnic origin.
- Commercial sponsorship - some people change their names in order to move particular brands, or to name a business that requires to be named after yourself or past partners. A good example is the law field. A law firm can only be named after the existing or past partners. If for example I want to set up my own practice and adopt a new name altogether and use that for my practice I can simply change my name to reflect the name and proceed to registration with the Law Society.
- Protest or activism (e.g., old name Giribheti Tsvakai, new name Giribheti Musaurayamhuka)
- To change to a fictional character's name,
- To make their name more attractive or "catchy" so as to increase their chance of success. This has been the trend in Zimbabwe where dozens of artists do not use their real names for the performances. Many do not formalise the change. The stage names can be registered as trademarks. The artist will still need to use their real names for contracts.
- To change the legal name to the one used in everyday life (e.g., where middle name has been used throughout life)
- To remove superstitious consequences of the old name (e.g. old name Muroyi, new name Giribheti Muchengeti)
- In one hilarious case, someone had to change their name after losing a bet - for example, a New Zealand man changed his name to Full Metal Havok More Sexy N Intelligent Than Spock And All The Superheroes Combined With Frostnova, and apparently discovered it has been accepted when his passport expired.

Procedure for Changing your name
Now that you know that there are several reasons for changing your name, are you ready for the procedure that will enable you to change your name.

You need a Notary Public
I have seen several people in town and on social media advertising that they can do "change of names". That is illegal as only Notaries Public are allowed to preside over the process, and most importantly, they do not advertise. Lawyers are not allowed to advertise. Do not just go to anyone who claims they can assist you with the process. You need a Notary Public. The legal and ethical requirement is that you are supposed to appear before a Notary Public. This means you should actually know the person who is handling the matter for you as a Notary Public. A Notary Public is lawyer who is admitted as a Notary Public. The difference between lawyers and notaries public is simple, all notaries public are lawyers, but not all lawyers are notaries public.

1: Notarial Deed of Change of Name
The Notary Public will prepare a document called, a Notarial Deed of Change of Name for you. You will have to appear before the Notary Public together with two witnesses and sign the Deed. Once the Deed has been signed it will be notarised.

2: Give Legal Notice of the Deed
You have seen these legal notice of Change of Name. Once you have appeared before the Notary Public you need to give Notice to the world that you have changed your name. The purpose of this is for the world to know that you have changed your name, and if anyone has any objections to this deed, they can lodge it. The standard period for the notice is two weeks. The Notice has to be published in the Government Gazette, and a newspaper circulating in your area or wide circulation. The Herald for example is one such newspaper with wide circulation.

3: Lodging of the Deed
The Notary Public will lodge the Deed with the Deeds Office for the registration of the Deed. Once the Deed has been registered, it becomes a public document meaning anyone has access to it. There are standard fees charged by the Deeds Office. These change from time to time. Your Notary Public will advise you of the costs including the costs for the Notices mentioned earlier.

4: Change your Birth Certificate
Once the Deeds Office has registered the change of name, armed with the Notarial Deed of Change of Name, you head to the Registrar of Births and Deaths' Office so that you formalise the change of name through change of the Birth Certificate to indicate the new name. Please keep the Notices you received from the Government Gazette and the newspaper as these would be needed at the Registrar's Office.

You also need to update your Identity Documents for example your National ID, and Passport so that it reflects the new name.

Do you change your academic certificates?
You do not necessarily need to change these. You use the Notarial Deed of Change of Name to explain the change of name. This will suffice. The Notarial Deed of Change of Name has to be neatly prepared so that its durable. You will need it along the way.
Once you do this, you are good to go with your new name. I trust that this has helped gain some perspective on one of the frequently asked questions in my practice of law.

*LEGAL DISCLAIMER*: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate and family law attorney. He is also a notary public and conveyancer. He has helped clients in the past set up family trusts, write and lodge wills. Follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].

08/06/2022

I would like to take this opportunity to invite you to a MasterClass Memory Nguwi and I will be running on the 17th June 2022, at 12:00pm.

We will be looking at the *Proposed Labour Amendment Bill*, its implications for your business and organisation. The details are below for your convenience:

The event is *FREE* but registration is required.

When: Jun 17, 2022 12:00 PM Harare, Pretoria

Register in advance for this meeting:
https://us02web.zoom.us/meeting/register/tZMpf-itpzksGdN6apviQCiIL8IOWJXzDAJ3

After registering, you will receive a confirmation email containing information about joining the meeting.

Regards

*Arthur Marara* | LLB (Hons) UZ, LLM (UZ)
Attorney | Best Selling Author |Human Capital Trainer|
Business Speaker | Thought Leader | Law Lecturer | Consultant | Coach
+263772467255 (Calls)
WhatsApp: https://wa.me/263780055152

17/01/2022

HOW TO CHANGE YOUR NAME LEGALLY

One of the constant inquiries that I get from people is, "How do I change my name". There are number of people who are stuck with names that they no longer want, and do not know what to do with these names. The good news is that you can actually change your first name(s) and surname if you so wish. There is a legal procedure for this. Well, in this instalment I am going to demystify the whole subject of change of name, and show you what you need do to change your name legally.

Do you want to change your name?
If your answer is yes, the good news is that you can change your name anytime. The common law allows you to change your first name(s) or surname to whatever you wish as long as it's not meant to deceive or defraud, and you are over the age of 16. In Zimbabwe, if you are not yet an adult, you will need the assistance of an adult to undertake this process on your behalf.

Why do people change names?
Before demonising people for changing their names, you need to understand that this is their individual right in terms of the law. It is also yours, so if you do not exercise it, do not demonise or attack the people who are exercising it. In fact, globally some prominent people changed their names. Many would know Martin Luther King Junior. He was born, Michael Luther King Jr, until his father decided to adopt the name Martin Luther King Jr. Let me give a few more international examples here;

- Miley Cyrus was born Destiny Hope Cyrus, but officially changed her name in January 2008.
- Katheryn Elizabeth Hudson aka Katy Perry
- Eric Marlon Bishop aka Jamie Foxx
- Carlos Irwin Estevez aka Charlie Sheen
- Onika Tanya Maraj aka Nicki Minaj
- Peter Gene Bayot Hernandez aka Bruno Mars
- Reginald Kenneth Dwight aka Elton John
- Mark Vincent aka Vin Diesel
- Robyn Rihanna Fenty aka Rihanna
- Caryn Elaine Johnson aka Whoopi Goldberg

There are several prominent people in Zimbabwe who also changed their names. This practice is very legal and very common. I would not want to pick names as these are in the public domain. There are various reasons why people opt to change their names, and below are some of them. Please note that reasons vary from person to person;

- Marriage or civil partnership (e.g. Bhirijeti Sponono marries Abhero Mudazvinhu and assumes his surname. There are also men assume their spouses' surname. It's perfectly legal.)

- Adoption, or marriage of a custodial parent

- Divorce or estrangement of parents

- Immigration / adaptation of the name to a different language or script (e.g. if you are foreigner and you become a Zimbabwean national, you are not barred from changing your name)

- To avoid a stalker or harassment

- Religious conversion and/or deconversion, ordination or return to lay status

- To choose a surname associated with a hobby, interest, or accomplishment (e.g., old name Abhero Mutanhi, new name Abhero Mhukadzesango)

- To receive an inheritance conditional on adopting the name of the deceased (this reason was once quite common in landowning families in other parts of the world)

- To replace a name which might be considered undesirable with a more desirable one. There are names which by virtue of the evolving nature of language sound now sound obscene. There was one Legal Notice of change of name that went viral with a an individual shortening their name for the sake of "decency".

- To dissociate themselves from a famous or infamous person. For example you share surname with an infamous armed robber or criminal and your name is frequently used in many places.

- To identify with a famous or infamous person

- To dissociate themselves from a family black sheep (e.g., relatives of Adolf Hi**er). One of Pablo Escobar's children had to change his name so that he could have a normal life after the demise of his drug lord father.

- To dissociate themselves from an ethnic origin.

- Commercial sponsorship - some people change their names in order to move particular brands, or to name a business that requires to be named after yourself or past partners. A good example is the law field. A law firm can only be named after the existing or past partners. If for example I want to set up my own practice and adopt a new name altogether and use that for my practice I can simply change my name to reflect the name and proceed to registration with the Law Society.

- Protest or activism (e.g., old name Giribheti Tsvakai, new name Giribheti Musaurayamhuka)

- To change to a fictional character's name,

- To make their name more attractive or "catchy" so as to increase their chance of success. This has been the trend in Zimbabwe where dozens of artists do not use their real names for the performances. Many do not formalise the change. The stage names can be registered as trademarks. The artist will still need to use their real names for contracts.

- To change the legal name to the one used in everyday life (e.g., where middle name has been used throughout life)

- To remove superstitious consequences of the old name (e.g. old name Muroyi, new name Giribheti Muchengeti)

- In one hilarious case, someone had to change their name after losing a bet - for example, a New Zealand man changed his name to Full Metal Havok More Sexy N Intelligent Than Spock And All The Superheroes Combined With Frostnova, and apparently discovered it has been accepted when his passport expired.

Procedure for Changing your name
Now that you know that there are several reasons for changing your name, are you ready for the procedure that will enable you to change your name.

You need a Notary Public
I have seen several people in town and on social media advertising that they can do "change of names". That is illegal as only Notaries Public are allowed to preside over the process, and most importantly, they do not advertise. Lawyers are not allowed to advertise. Do not just go to anyone who claims they can assist you with the process. You need a Notary Public. The legal and ethical requirement is that you are supposed to appear before a Notary Public. This means you should actually know the person who is handling the matter for you as a Notary Public. A Notary Public is lawyer who is admitted as a Notary Public. The difference between lawyers and notaries public is simple, all notaries public are lawyers, but not all lawyers are notaries public.

1: Notarial Deed of Change of Name
The Notary Public will prepare a document called, a Notarial Deed of Change of Name for you. You will have to appear before the Notary Public together with two witnesses and sign the Deed. Once the Deed has been signed it will be notarised.

2: Give Legal Notice of the Deed
You have seen these legal notice of Change of Name. Once you have appeared before the Notary Public you need to give Notice to the world that you have changed your name. The purpose of this is for the world to know that you have changed your name, and if anyone has any objections to this deed, they can lodge it. The standard period for the notice is two weeks. The Notice has to be published in the Government Gazette, and a newspaper circulating in your area or wide circulation. The Herald for example is one such newspaper with wide circulation.

3: Lodging of the Deed
The Notary Public will lodge the Deed with the Deeds Office for the registration of the Deed. Once the Deed has been registered, it becomes a public document meaning anyone has access to it. There are standard fees charged by the Deeds Office. These change from time to time. Your Notary Public will advise you of the costs including the costs for the Notices mentioned earlier.

4: Change your Birth Certificate
Once the Deeds Office has registered the change of name, armed with the Notarial Deed of Change of Name, you head to the Registrar of Births and Deaths' Office so that you formalise the change of name through change of the Birth Certificate to indicate the new name. Please keep the Notices you received from the Government Gazette and the newspaper as these would be needed at the Registrar's Office.

You also need to update your Identity Documents for example your National ID, and Passport so that it reflects the new name.

Do you change your academic certificates?
You do not necessarily need to change these. You use the Notarial Deed of Change of Name to explain the change of name. This will suffice. The Notarial Deed of Change of Name has to be neatly prepared so that its durable. You will need it along the way.

Once you do this, you are good to go with your new name. I trust that this has helped gain some perspective on one of the frequently asked questions in my practice of law.

*LEGAL DISCLAIMER*: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate and family law attorney. He is also a notary public and conveyancer. He has helped clients in the past set up family trusts, write and lodge wills. Follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].

07/09/2021

HOW TO CONDUCT A DISCIPLINARY HEARING

In the last article I introduced you to the subject of unfair dismissal. I am following up on the subject with the objective of seeing more hearings conducted in a procedural manner. Unfair dismissals have cost many companies hundreds of thousands of dollars in the past. What will be impeached when an unfair dismissal is alleged are two things; procedural fairness, and the substantive fairness. This article will speak to those people who are involved in conducting disciplinary hearings, and those who are going through one.

Use the right code of conduct
The last article spoke to this fundamental point. Whenever I am handling a disciplinary matter that is what I look at. If the code of conduct is wrong that becomes a preliminary point that can be taken during the hearing of the matter. Ensure that the correct code of conduct has been used charge an employee. This is important for every employer to observe. The High Court of Zimbabwe had the opportunity to pronounce on this point in the case of *Tagarirofa v Nhedziwa High School Development Committee (HMT 23-20)* where *Justice Muzenda* had the following to say;

"The basis for seeking the order for a declaratur by the applicant is basically that the proceedings were conducted under the auspices of SI 15 of 2006 and not under the code of conduct for the National Employment Council for Welfare and Educational Institutions which was the appropriate employment Council at the time the disciplinary proceedings were conducted. The respondent denies that it used SI 15 of 2006 wrongly. It argues that at that time there was no registered code of conduct to be used by it so it used SI 15 of 2006, the argument by the respondent does not find favour with this court. The National Employment council for Welfare and Educational Institutions apply to non-governmental schools and has been in existence for fairly a long time. In my view the respondent sought to have resorted to that employment council in disciplining the applicant. I agree with the applicant that once the respondent used the wrong statute and or wrong code of conduct, the subsequent proceedings are nullity. [2] the proceedings were not in accordance with the due process of the appropriate legislation applicable to the dispute in question. SI 15 of 2006 would only apply where there is no applicable code of conduct."

Fairness of the dismissal starts with the procedural fairness. Did we use the right code of conduct? Did we follow the code of conduct in terms of what it says in conducting the disciplinary proceedings. In the above cited matter the proceedings were set aside for using the wrong code of conduct.

The charges must be provided for in the Code
There is excitement on the part of some Human Resources people to tend to invent charges that are not provided for. It's either the offence exists in terms of the applicable code or it does not. If does not exist, do not create it. Ensure as well that the charge that you pick, speaks to particular facts of the matter. If you are not sure about what you are doing consult your lawyers so that they can help in terms of drafting the charge letter. The charge letter is the basis for the case, so care must be taken to ensure that it has been written well.

Facts not opinions
Many people have embarrassed themselves during disciplinary hearings by charging people based on their opinions of what is right. What you are alleging to be an offence has to be an offence in terms of a code of conduct and not your thinking. Secondly, ensure that you have facts right before proceeding with a hearing. As a matter of fact, you should be able to sustain each and every case with documentary and viva voce evidence. In the absence of evidence there is no basis to convict an employee. The question to ask yourself is, "do we have the evidence to support the allegations." Do your investigations thoroughly before charging a person of any misconduct.

The Question of Onus
The law has to be set out at this stage; it is the duty of the employer to prove the employee's guilt, and not the duty of the employee to prove his innocence. This is the bit many employers miss. You cannot expect to build your case based on the testimony or cross-examination of the employee. Onus simply means a duty to prove something. For example, if the Complainant is alleging that, the Respondent employee committed act, conduct or omission "which is inconsistent with the fulfillment of the express or implied conditions of his or her contract of employment." The Duty to prove this position rests squarely on the Complainant. The employee does not have to prove anything. The employer has to prove its case. It is the duty of the employer to prove the GUILT of the employee and not for the employee to prove his or her innocence.

The question of onus as well is quite settled in terms of the law; "The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation. This position has been affirmed by this court. In Book V Davidson 1988 (1) ZLR 365 (S) at 384 B-F, Dumbutshena CJ quoted with approval the words of Potgieter AJA in Mobil Oil Southern Africa (Pvt) Ltd V Mechin 1965 (2) SA 706 at 711 E-G. 'The general principle governing the determination of the incidence of the onus is the one stated in the corpus luris simper necessitasprobandiincumbitilli qui agit. In other words he who seeks a remedy must prove the grounds therefore. (Emphasis added by underlining)'" As per the Supreme Court in Astra Industries Limited v Peter Chamburuka SC 27-12. See also: INTER-AGRIC PRIVATE LIMITED v ALLAN MUDAVANHU AND 12 OTHERS SC.9/15

The particulars of the offence and the evidence must marry. The position of the law on the question of particulars of the charge is settled, and the Disciplinary Authority (DA) or Disciplinary Committee (DC) is bound by the precedent. In NEI Zimbabwe (Pvt) Ltd v Makuzva LC/H/248/04 the court held that the employer should not just allege that there is conduct inconsistent with the contract, it must cite and prove the actual conduct. The Supreme Court has stated the position on the importance of particularity, and clarity in terms of the charges.

In DELTA BEVERAGES (Cited as a division of Delta Corporation Limited) v ONISMO RUTSITO SC42/13 the Court held that

"…Where such particulars are not set out, the defendant is embarrassed in his defence as he cannot know the basis on which liability is claimed. It is not enough to allege negligence and fail to give particulars of such negligence. It is now well established that a defendant is entitled to know the outline of the case that a plaintiff will try to make against him. Border Timbers Ltd v Zimbabwe Revenue Authority 2009 (1) ZLR 131 (H), p 139 D-E. Also Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404, 407 A-B" (Counsel's underlining for emphasis)

What does this mean? It simply means that a complainant has to set out the essentials in terms its charge, and what is not contained therein cannot be a basis for a conviction because an employee is entitled to be made aware of every detail. The DA or DC is therefore directed by operation of the law to focus on the points contained in terms of the charge, and not anywhere else as happened during the hearing.

The charges must be clear. What is the violation complained of? A number of times disciplinary hearings are often in darkness as to what they are supposed to be presiding over. The charge is speaking one thing, and the evidence being led is speaking another. There must be sufficient clarity and particularity.

An employee can only be dismissed for offence charged
There is a tendency for emotions to be put into disciplinary hearings and consequently, you find new offences being introduced in the determination. Stick to the question;
- What is the charge?
- Has it been proven?
If the charge has been proven, the employee must be acquitted. It is as simple as that, unless if you are a daring employer who does not care about the cost, and wants to get rid of the employee at all costs.

The employee must be in the know as to the case against him or her, and the employer has to discharge the onus on it in terms of the law. The Supreme Court has made it very clear that a party cannot build a case as it goes. In a fairly recent judgment of LAWSIGN NYARUMBU v SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD SC31/2013 the Supreme Court held that;

"It is axiomatic, in criminal as well as disciplinary proceedings that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict on the offence originally charged. The reason for this is obvious, viz. The person accused must be made aware of the case against him in order to enable him to effectively prepare his defence. In this context, notwithstanding the provisions of s 89(2)(a)(ii) of the Labour Act, the Labour Court cannot, mero motu, substitute its own charge or make a finding of guilt on an entirely different offence. Any such action would constitute a blatant miscarriage of justice. See Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR (S) 314 at 316E-317G. Furthermore, sitting as a court of appeal, it can only deal with the matter on the basis of the grounds of appeal that have been raised by the appellant. See Chikanda v United Touring Company Limited SC 7/99 at p 3.
In the instant matter, it is not in dispute that the appellant was never at any stage charged with negligence. Moreover, the grounds of appeal before the Labour Court were confined to theft, without any reference to negligence, and negligence was not canvassed by the parties in the proceedings before it. What the court did, by finding the appellant guilty of negligence, was to usurp the functions of the respondent's disciplinary and appeals committees. It follows that the court fundamentally erred in its finding of negligence, as that was an issue which was clearly not the subject of the appeal before it." (Counsel's underlining for emphasis)

I trust that this article has shared some thoughts on how to conduct a disciplinary hearing.

*LEGAL DISCLAIMER*: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney. He has specialised in employment law matters having worked with corporates, trade unions, and individuals in their labour matters. He is also a notary public and conveyancer. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].

Attorney Arthur Marara

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