Dismissal http://www.zimlii.org/ en Dhliwayo v Warman Zimbabwe (Pvt) Ltd and 2 Others (12 of 2022) [2022] ZWBHC 12 (13 January 2022); http://www.zimlii.org/zw/judgment/bulawayo-high-court/2022/12-0 <span class="field field--name-title field--type-string field--label-hidden">Dhliwayo v Warman Zimbabwe (Pvt) Ltd and 2 Others (12 of 2022) [2022] ZWBHC 12 (13 January 2022);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2249" hreflang="x-default">application for rescission of judgment</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/1978" hreflang="en">Termination and dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2250" hreflang="x-default">principles (Rescission of judgment)</a></div> <div class="field__item"><a href="/taxonomy/term/2248" hreflang="x-default">Rescission of judgment</a></div> <div class="field__item"><a href="/taxonomy/term/2321" hreflang="x-default">rescission See PRACTICE AND PROCEDURE (Rescission of judgment).</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>RufaroD</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 10/05/2022 - 06:58</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwbhc/2022/12/2022-zwbhc-12_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=43219">2022-zwbhc-12.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwbhc/2022/12/2022-zwbhc-12_0.pdf" type="application/pdf; length=191875">2022-zwbhc-12.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p class="MsoNoSpacingCxSpFirst" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>STEWART DHLIWAYO </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>Versus</b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>WARMAN ZIMBABWE (PVT) LTD </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>And </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>C H WARMAN HOLDINGS (PVT) LTD </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>And </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>WENDY ANNE KING N.O.</b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif">IN THE HIGH COURT OF ZIMBABWE</span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif">DUBE-BANDA J</span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif">BULAWAYO 5 NOVEMBER 2021 &amp; 13 JANUARY 2022 </span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>Application for rescission of judgment </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><i>S. Siziba</i> for the applicant</span></span></p> <p class="MsoNoSpacingCxSpLast" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><i>T. Mpofu</i> for the respondent</span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">            <b>DUBE-BANDA J: </b>This is an application for rescission of judgment. </span>At the outset, and to avoid confusion it is important to state that this application is in terms of rule 63(1) of the High Court Rules, 1971.<a href="#_ftn1" name="_ftnref1" style="color:blue; text-decoration:underline" title="" id="_ftnref1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-US" style="font-size:12.0pt" xml:lang="EN-US"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">[1]</span></span></span></span></span></a> <span lang="EN-US" style="line-height:150%" xml:lang="EN-US"> It is important to state this because the heading of this application is framed thus: court application for the rescission of judgment in terms of rule 449(1) (a) as read with rule 63(1) of the High Court Rules, 1971. Respondents objected to this approach on the basis that an application for rescission cannot be anchored on both rules 63 and 449.   At the commencement of this hearing Mr <i>Siziba</i> counsel for the applicant informed the court that this application is solely in terms of rule 63(1). Mr <i>Mpofu</i> counsel for the respondents did not persist with the objection. Consequently no further reference would be made to rule 449. </span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            In this matter this court is being asked to rescind the judgment it handed down in case number HC 2693/15. <span lang="EN-US" style="line-height:150%" xml:lang="EN-US">The order sought by the applicant is </span><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">couched as follows: </span></span></span></span></span></p> <ol><li style="margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">That the rescission application be and is hereby granted and the order of this court dated 18 July 2019 under cover of HC 2693/15 be and is hereby set aside. </span></span></span></span></li> <li style="margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">That the applicant be and is hereby directed to cause his new attorneys to file an assumption of agency within 7 days of granting of the order in this matter. </span></span></span></span></li> <li style="margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">That there be no order as to costs. </span></span></span></span></li> </ol><p><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Background facts </span></b></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">This application will be better understood against the background that follows. On the facts of this case it is either common cause or cannot be seriously disputed that 1<sup>st</sup> respondent (company) was incorporated on the 8<sup>th</sup> August 1988 and was 100% owned by Research and Development (Pty) Ltd of Australia until 2003. 2<sup>nd</sup> respondent is wholly owned by Research and Development (Pty) Ltd the initial shareholder of 1<sup>st</sup> respondent. C.H. Warman Holdings (Pty) Ltd (2<sup>nd</sup> respondent) and Estate late C.H. Warman (3<sup>rd</sup> respondent) are shareholders in 1<sup>st</sup> respondent. </span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">Applicant </span></span><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">was employed by the 1<sup>st</sup> respondent as a branch manager. He was also its Secretary. A dispute arose between applicant and 1<sup>st</sup> respondent’s directors and shareholders, in the main turning on whether or not applicant had authority to indigenize the company i.e. to change the directors and shareholders of the company. As a result of the disputed indigenization of the 1<sup>st</sup> respondent, applicant became a shareholder through trusts that he created. He also made two employees Ncube and Lunga directors in the company. </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">Aggrieved by what it considered applicant’s misconduct the company on the 29 September 2015 convened a disciplinary hearing against him. A number of allegations were levelled against the applicant. The disciplinary committee found that he had breached section 4(a) of the National Conduct, S.I. 15/06 and was on the evidence before it guilty of the following: appointing himself as director without authority; amending the Memorandum and Articles of Association without authority; failing to update annual returns and failing to submit annual returns from 2001 to 2014; and without authority of shareholders transferred shares on the 14 April 2014; without authority took possession of the employer’s property and also abused some funds; unprocedurally disposed of the company vehicles and did not follow given instructions of the disposal of the vehicles and supplied falsified documents; and conducted himself dishonestly over several given financial transactions and other business dealings, resulting in prejudice to the business.  Consequently he was dismissed from employment with effect from the 30 September 2015. He was ordered to surrender all company assets and advised to approach a Labour Officer should he be aggrieved by the decision of the disciplinary committee. Applicant did not surrender company assets as directed the disciplinary committee.  </span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">            In 2016 respondents (as applicants) sued out a court application (HC 2693/15) wherein applicant was the first amongst other eleven respondents. Applicant (as 1<sup>st</sup> respondent) opposed the application while the other respondents did not. Applicant in HC 2693 /15 took a number of points <i>in limine,</i> and after argument in <i>Warman Zimbabwe (Pvt) Ltd &amp; Ors v Stewart Dhliwayo &amp; Ors</i> HB 175/16 this court ordered that the matter be referred to trial and the papers filed of record to stand as pleadings. </span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">Ininitally the trial in HC 2693/15 was set-down for the 12 to 15 March 2019, it did not commence and the matter was removed from the roll. It was again set down for the 17 July 2019, and again on this date applicant applied for a postponement of the matter and his application was dismissed. The court ordered that the trial should start the following day i.e. 18 July 2018 at 10 O’clock. On the 18 July 2018 there was no appearance for the applicant and default judgment was granted against the all the respondents.  The default judgment is couched in the flowing terms: </span></span></span></span></span></p> <ol><li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">The indigenization of 1<sup>st</sup> plaintiff which was based on an unauthorized indigenization plan submitted by 1<sup>st</sup> defendant be and is hereby set aside and the Compliance Certificate issued by 4<sup>th</sup> respondent defendant on the 1<sup>st</sup> January 2015 be and is hereby cancelled. </span></span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">The appointment of 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> defendants as directors of 1<sup>st</sup> plaintiff is unlawful and of no effect. </span></span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">The allotment of shares in 1<sup>st</sup> plaintiff to 9<sup>th</sup>, 10<sup>th</sup> and 11<sup>th</sup> defendants is unlawful and of no force or effect.</span></span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">The cancellation and substitution by 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> defendants of 1<sup>st</sup> plaintiff’s Articles of Association is invalid and of no force or effect.</span></span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">4<sup>th</sup>, 5<sup>th</sup> and 6<sup>th</sup> defendants are hereby directed to remove the names of 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> defendants wherever their names appear as signatories in the 1<sup>st</sup> plaintiff’s bank accounts held by them. </span></span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">Costs on a punitive scale against 1<sup>st</sup> defendant. </span></span></span></span></span></li> </ol><p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">It is this default judgment that applicant seeks that it be set aside by means of rescission. The application is opposed by the respondents.  It is against this background that applicant on the 19 July 2019 launched this application seeking the relief mentioned above.</span></span></span></span></p> <p><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Preliminary points</span></b></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US"> Each side of the divide made every effort to outdo the other side on the basis of points <i>in limine. </i><span style="color:#1f1f1f">At the commencement of the hearing I informed counsel that</span> I shall adopt a holistic approach. This approach avoids a piece-meal treatment of the matter, in that the points <i>in limine</i> are argued together with the merits, but when the court retires to consider the matter it may dispose of the matter solely on the basis of the points <i>in limine</i> despite that they were argued together with the merits. </span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Applicant’s points <i>in limine </i></span></b></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">No valid opposion for 2<sup>nd</sup> and 3<sup>rd</sup> respondents</span></b></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">At the commencement of the hearing Mr <i>Siziba</i> took a point<i> in limine, </i>that there is no proper or valid opposition by 2<sup>nd</sup> and 3<sup>rd</sup> respondents. It is contended that the depondent to the respondents’ opposing affidavit has relied on the same authority of documents rejected in this court in </span><i><span style="line-height:150%"><span style="color:#1f1f1f">Warman Zimbabwe (Pvt) Ltd and Ors v Dhliwayo and Ors</span></span></i><span style="line-height:150%"><span style="color:#1f1f1f"> HB 175/16. It is argued that since the purported resolution by the 2<sup>nd</sup> respondent was allegedly passed at a purported meeting of the shareholders of 1<sup>st</sup> respondent that was adjudged invalid in this court, it follows that the authorisation of the deponent by the directors of 2<sup>nd</sup> respondent is equally invalid. It is contended that there is no proper or valid opposition before court by the 2<sup>nd</sup> respondent. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">As regards the 3<sup>rd</sup> respondent it is contended that the special power of attorney that is before court as authorising the deponent to represent her was signed on the 25<sup>th</sup> May 2015. It does not specifically authorise or grant the deponent any authority to represent 3<sup>rd</sup> respondent in court proceedings. It is argued that it authorises him in general terms to manage the business affairs of 3<sup>rd</sup> respondent and there is no proof that the depondent is authoirsed to represent 3<sup>rd</sup> respondent in this case. It is argued that there is no proper or valid opposition to the application by the 3<sup>rd</sup> respondent.   </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">In this matter the three respondents were directed to file opposing papers within ten days of service of the court application should they intend to oppose the matter.  Simply put it is applicant who invited all respondents to file a notice of opposition. In general, I do not think a party can cite a litigant in court proceedings and invite such litigant to oppose the matter should it so wish and then make a turn and allege that such litigant has no authority to oppose the matter. See: <i>Mudzengi &amp; Ors v Hungwe &amp; Anor </i>2001 (2) ZLR 175. </span></span><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">To my mind such would amount to double standards and is absolutely untenable. </span><span style="line-height:150%"><span style="color:#1f1f1f">It is in this context that I agree with the submission made by Mr <i>Mpofu</i> that it is astounding that on the facts of this case applicant can question the right of a respondents to respond to an application it has itself filed.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">Mr <i>Mpofu</i> argues that the issue of authority has been improperly taken. It is contended that applicant is confusing the distinction between the authority to bring proceedings and being a witness in the proceedings. I agree. Cut to the borne, what applicant is challenging is the deponent’s (Nyoni’s) competence to depose to the opposing affidavit on behalf of the respondents. I say so because 2<sup>nd</sup> and 3<sup>rd</sup> respondents are not being represented by the deponent in these proceedings, but by their legal practitioners of record. The deponent is merely a witness, if this was a trial he would simply take the witness stand and testify under oath. This position was stated with clarity in </span></span><i><span style="line-height:150%"><span style="color:#4a4a4a">Willoughby's Investments (Pvt) Ltd v Peruke Investments (Pvt) Ltd &amp; Anor</span></span></i><span style="line-height:150%"><span style="color:#4a4a4a"> HH 178/14, where the court held thus: </span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:12pt"><span style="line-height:115%"><span style="text-autospace:none"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:115%"><span style="color:#4a4a4a">The applicant persisted with the contention that the deponent was not authorised to represent the respondent.  That argument seems to be raised with amazing regularity these days.  The applicant’s contention is not that the respondent has not sanctioned the opposition to the application but, rather, that the deponent is not authorised to represent the respondent in these proceedings.  But the respondent is represented not by the deponent but by its legal practitioners.  The rules are clear as to the qualification for a person to depose to an affidavit.  Order 32 r 227(4) provides that an affidavit filed in written applications “shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein”.  In other words, a person who has knowledge of the facts and can swear to those facts is the one qualified to depose to an affidavit in application proceedings.  The applicant is not contesting the assertion that the deponent to the affidavit has knowledge of the facts stated in the affidavit.  The cases cited by the applicant in its heads of argument relate to authority to institute proceedings on behalf of a company or to take certain decisions on its behalf, and not to the competence of a witness to depose to an affidavit on behalf of a company.  Compare <em>Madzivire &amp; Others </em>v<em>Zvarivadza &amp; Others </em>2005 (2) ZLR 148(H); see also <em>Madzivire &amp; Others</em> v<em>Zvarivadza &amp; Ors </em>2006 (1) ZLR 514(S<em>)</em>.  For that reason, the objection cannot be sustained.</span></span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:150%"><span style="color:#4a4a4a">The applicant is not contesting the assertion that the deponent to the opposing affidavit has knowledge of the facts stated in the affidavit.  Therefore he is a competent deponent or witness in this matter. As a deponent or witness he can only be disqualified if he does not meet the requirement of Order 32 r 227(4) of the High Court Rules, 1971 which provides that an affidavit filed in written applications “shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein.” </span></span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:150%"><span style="color:#4a4a4a">As a deponent he is not instituting proceedings on behalf of 2<sup>nd</sup> and 3<sup>rd</sup> respondents or to taking certain decisions on their behalf.  This is a distinction that must be taken note of i.e. the difference between the authority to institute or defend proceedings and the competence of a witness to depose to an affidavit on behalf of a litigant.</span></span></span> <span style="line-height:150%"><span style="color:#1f1f1f">On the facts of this case </span></span><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:150%"><span style="color:#4a4a4a">I find that the deponent is a competent witness to depose to the opposing affidavit on behalf of 2<sup>nd</sup> and 3<sup>rd</sup> respondents. </span></span></span><span style="line-height:150%"><span style="color:#1f1f1f">The contention that there is no company resolution appointing him to represent the 2<sup>nd</sup> and 3<sup>rd</sup> respondents in this matter must fail.</span></span> </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">This should really mark an end to the inquiry into this point <i>in limine</i>, but for the sake of completeness I deal with other anciliary issues taken by applicant. Applicant submits that the deponent to the opposing affidavit is relying on the same authority or documents which were rejected by this court in the main matter HC 2693/15.  <span style="line-height:150%"><span style="color:#1f1f1f">Again a clear look at the judgment in <i>Warman Zimbabwe (Pvt) Ltd and Ors v Dhliwayo and Ors </i>shows that this court did not deal with the competence of the deponent to depose to the opposing affidavit on behalf of the of the 2<sup>nd</sup> respondent and special power of attorney signed by the 3<sup>rd</sup> respondent. In fact I take the view that there is nothing irregular about the special power of attorney. To my mind based on the facts of this case there is a proper and valid notice of opposition by 2<sup>nd</sup> and 3<sup>rd</sup> respondents. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">Furthermore the authority of the deponent to depose to the opposing affidavit on behalf of the 1<sup>st</sup> respondent has not been challenged. It is trite that what has not been challenged is taken to have been admitted. Therefore even on applicant’s best case this application is still opposed. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">In any event on the 12<sup>th</sup> August 2019 1<sup>st</sup> respondent passed a resolution authorising and empowering the deponent to sign the affidavit on its behalf. This resolution was passed by means of a Round Robin.<a href="#_ftn2" name="_ftnref2" style="color:blue; text-decoration:underline" title="" id="_ftnref2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span style="font-size:12.0pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="color:#1f1f1f">[2]</span></span></span></span></span></span></a> </span></span><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:150%">A </span></span><a href="https://www.lawinsider.com/dictionary/round-robin-resolution" style="color:blue; text-decoration:underline"><span style="line-height:150%">Round Robin resolution</span></a><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:150%"> of directors is as valid and effectual as if it had been passed at a meeting of the directors duly called and constituted, provided that the majority of the directors have voted in favour of the matter. Again on this basis the application is still opposed by the 1<sup>st</sup> respondent. </span></span><span style="line-height:150%"><span style="color:#1f1f1f">It is for these reasons that applicant’s point <i>in limine</i> must fail and it is accordingly refused. </span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span style="line-height:150%"><span style="color:#1f1f1f">Respondents’ points <i>in limine </i></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><i>            </i></b><span style="line-height:150%"><span style="color:#1f1f1f">Respondent raised the following points <i>in limine viz</i> non-joinder of parties who were cited in the application that yielded the judgment sought to be rescinded; judgement sought to be rescinded has been given full effect to with applicant’s participation and consent and there is nothing to rescind i.e. doctrine of peremption and mootness;  and material non-disclosure and material falsehoods. It is contended that the points <i>in limine</i> be upheld and the application be dismissed without any consideration of the merits.  </span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">I now deal with these points <i>in limine</i> in turn. </span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>The Doctrine of Peremption</b></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Mr <i>Mpofu</i> argued that it is well established in law that a party who becomes aware of a judgment and acquiesces therein is precluded thereafter from applying for rescission of the same judgment as the right to challenge it would have become perempted. Respondents submits that a party who has acquiesced in a judgment cannot thereafter seek to challenge it. It is contended that applicant has acquiesced to the order he seeks to be set aside by means of rescission of judgment.  It is submitted that applicant has acquiesced in the judgment in that on the 18 July 2019 he contacted Mr Clark and Mr West for a meeting at the offices of Coghlan and Welsh Legal Practitioners and requested that it be a “no lawyers meeting.” At the meeting he handed over the company and accounted to what he termed his principals i.e.  Mr Clark and Mr West. </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In his affidavit Charl Henning Clark (Mr Clark) states that on the 18 July 2019, after attending court and default judgement was granted against applicant they were advised that applicant was seeking a meeting to hand over the assets and control of the company. A meeting was held at about 1500 hours at the offices of Coghlan and Welsh Legal Practitioners.  In attendance was Clark, Mr John West and applicant. In that meeting applicant gave an account of the affairs of 1<sup>st</sup> respondent and informed all the employees to hand over all the company assets. Applicant further informed the employees to report to Mr Clark and Memezi Tariro Nyoni (the deponent to the opposing affidavit).</span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In his supporting affidavit Lunga avers that he contacted applicant and advised him to handover the company to the respondents and to settle the matter out of court. He met applicant and urged him to do this in earnest and not prolong the dispute. He advised applicant to meet the two representatives of the respondents to map the way forward. Applicant agreed and as a result a meeting was held  and the premises and vehicles of the company were subsequently handed over to the representatives of the respondents.  Mr Lunga resigned as a director in 1<sup>st</sup> respondent. </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In his supporting affidavit Mr Ncube avers that he was employed by 1<sup>st</sup> respondent as a Sales Engineer until 30 September 2015. In January 2015, applicant called a meeting and advised the employees of 1<sup>st</sup> respondent to stop reporting to Weir Minerals Africa (Pvt) Ltd and that anyone who engaged Weir directly would be dismissed. Mr Ncube was then appointed a director in 1<sup>st</sup> respondent. He says he did not solicit for the appointment neither was he shown any authority from the shareholders. When Weir Minerals Africa (Pvt) Ltd advised him that it had not blessed applicant’s actions, he resigned as a director on the 28 September 2015.</span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In his answering affidavit applicant avers that it is not correct to say that he is the one who contacted Mr Clark and Mr West to organize a meeting at Coghlan and Wesh on the 18<sup>th</sup> July 2019. It is Mr Lunga who requested him to attend such a meeting. He initially refused to attend the meeting. He agreed to attend because of the hopes of an amicable resolution of the matter. He did not know that he was going to hand over all company assets and tell the employees to co-operate with Mr Clark and Mr West. He acted under duress. He says he was told by Mr Clark and Mr West that he was going to comply with their demands willingly or by force if he did not consent. He says he also complied with their demands because he did not want them to end up breaking into the premises by force as they had done previously.<a href="#_ftn3" name="_ftnref3" style="color:blue; text-decoration:underline" title="" id="_ftnref3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-US" style="font-size:12.0pt" xml:lang="EN-US"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">[3]</span></span></span></span></span></a> </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In his evidence and submissions applicant denies that the handover of the company was voluntary. It is said he handed over the company as a result of duress. It is contended that the handing over of the company should not be used to defeat applicant’s case.  The high watermark of applicant’s opposition to this point<i> in limine</i> is duress. It is important to note that he does not dispute that he has complied with the judgment in HC 2693/15, he contends that he did so under duress. This narrows the inquiry to whether or not his compliance was induced by duress. </span></span></span></span></p> <p class="JUDGMENTNUMBERED" style="text-indent:34.0pt; text-align:justify"><span style="font-size:13pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-ZA" style="font-size:12.0pt" xml:lang="EN-ZA"><span style="line-height:150%">According to the common law doctrine of peremption, a party who acquiesces to a judgment cannot subsequently seek to challenge the judgment to which he has acquiesced. This doctrine is founded on the logic that no person may be allowed to opportunistically endorse two conflicting positions or to both approbate and reprobate, or to blow hot and cold. It may even be said that a party will not be allowed to have her cake and eat it too. </span></span><span lang="EN-GB" style="font-size:12.0pt" xml:lang="EN-GB"><span style="line-height:150%">Although the doctrine has its origin in appeals, the doctrine and its principles do apply equally in the case of rescission. See: </span></span><i><span lang="EN-ZA" style="font-size:12.0pt" xml:lang="EN-ZA"><span style="line-height:150%">Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others </span></span></i><span lang="EN-ZA" style="font-size:12.0pt" xml:lang="EN-ZA"><span style="line-height:150%">[2021] ZACC 28[1] para. 101. </span></span></span></span></span></p> <p style="text-align:justify; text-indent:34.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The doctrine of peremption was enunciated in <i>Hlatswayo v Mare and Deas</i> <span style="line-height:150%">1912 AD 242</span> where Lord De Villiers held that ‘where a man has two courses of action open to him and he unequivocally takes one he cannot afterwards turn back and take the other.’ Similarly, in <i>Dabner v South African Railways and Harbours</i> <span lang="EN-US" style="line-height:150%" xml:lang="EN-US">1920 AD 583 @ 594 </span>Innes CJ stated:</span></span></span></p> <p style="margin-left:48px; text-align:justify; text-indent:3.0pt"><span style="font-size:12pt"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with Sentraale Ko-Operatiewe Graan any intention to appeal. And the onus of establishing that position is upon the party alleging it. In doubtful cases acquiescence, like waiver, must be held non-proven. </span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In <i>Gentiruco A.G. v Firestone S.A. (Pvt) Ltd.</i> 1972 (1) AD 589 @ 600 A-B the court said the right of an unsuccessful litigant to appeal against an adverse judgment or order is said to be perempted if he, by unequivocal conduct inconsistent with an intention to appeal shows that he acquiesces in the judgment or order. See: <i>Cohen v Cohen</i> 1980 ZLR 286 and <i>Collective Self Finance Scheme v Asharia</i> 2000 (1) ZLR 472 (SC). </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">I take the view that the facts are clear. Applicant was requested and not compelled by Mr Lunga to comply with the order he seeks this court to rescind. When he agreed to attend the meeting he knew its agenda.  It is a falsehood that he did not know that he was going to hand over company assets and tell the employees to report and co-operate with Mr Clark and Mr West. I say so because this was the very purpose of the meeting. Lunga advised him to attend the meeting and hand over the company to its owners. So when he left his home he knew that at the meeting he was going to hand over the company. It is falsehood that he was under duress. The allegation of duress is just a <i>red herring.</i> I say so because there is no evidence that Mr Clark and Mr West forced applicant to handover the company. It is Mr Lunga who advised him that the game was over he must just hand over the company and he agreed. It is inconsequential that he did not sign the minutes of the meeting held with Mr Clark  and Mr West. </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Applying the doctrine of peremption to the facts of this case, it is incontrovertible that the applicant by his conduct unequivocally acquiesced to the default judgment obtained against him on the 18<sup>th</sup> July 2019.  He a<span lang="EN-US" style="line-height:150%" xml:lang="EN-US">ttended a meeting with the directors of respondents and made a handover and takeover of the 1<sup>st</sup> respondent’s assets. He advised the employees of the new changes in 1<sup>st</sup> respondent. Applicant voluntarily yielded control of 1<sup>st</sup> respondent and respondents have taken control ever since. Applicant’s co-directors Lunga and Ncube have since resigned, and there is a new outlook which cannot be undone. On the facts of this case what is done cannot be undone. I am satisfied that by handing over the company to the respondents’ directors applicant </span>unequivocally acquiesced with the judgment in HC 2693/15.</span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">There would be no useful purpose to even consider the merits of the application when applicant unequivocal </span>acquiesced to the default judgment he seeks this court to rescind. Such acquiescence is fatal to this application.</span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Having found that this point <i>in limine</i> has merit, it is not necessary for me to consider the other preliminary points taken by the respondents. </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">The general rule in matters of costs is that the successful party should be given its costs, and this rule should not be departed from except where there are good grounds for doing so. I can think of no reason why I should deviate from this general rule. I therefore intend awarding costs against the applicant. </span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Disposition </span></b></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">I am satisfied that the respondents have discharged the <i>onus</i> of showing that applicant acquiescence with the judgment he seeks this court to rescind. His conduct was unequivocal and inconsistent with any intention to challenge the judgment in HC 2693/15. There is no doubt at all in this case that applicant acquiescenced with the judgment. He cannot seek its rescission.  It is for these reasons that this point <i>in limine</i> must succeed. </span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In the result, I order as follows:</span></span></span></p> <ol><li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The point <i>in limine</i> regarding peremption, that is to say applicant voluntarily <span lang="EN-US" style="line-height:150%" xml:lang="EN-US">acquiesced with the default judgment in HC 2693/15 and he cannot seek to have it rescinded is upheld. </span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">The application for rescission of judgment be and is hereby dismissed with costs of suit. </span></span></span></span></li> </ol><p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:normal"><span style="font-family:&quot;Times New Roman&quot;,serif"><i>Z. Ncube &amp; Partners </i>plaintiffs’ legal practitioners </span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:normal"><span style="font-family:&quot;Times New Roman&quot;,serif"><i>Coghlan and Welsh </i>respondent’s legal practitioners </span></span></span></p> <p style="text-align:justify"> </p> <div>  <hr align="left" size="1" width="33%" /><div id="ftn1"> <p class="MsoFootnoteText" style="text-align:justify"><span style="font-size:10pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><a href="#_ftnref1" name="_ftn1" style="color:blue; text-decoration:underline" title="" id="_ftn1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-US" style="font-size:10.0pt" xml:lang="EN-US"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">[1]</span></span></span></span></span></a> This application was filed prior to the enactment of the High Court Rules, 2021.</span></span></span></p> </div> <div id="ftn2"> <p class="MsoFootnoteText" style="text-align:justify"><span style="font-size:10pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><a href="#_ftnref2" name="_ftn2" style="color:blue; text-decoration:underline" title="" id="_ftn2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-US" style="font-size:10.0pt" xml:lang="EN-US"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">[2]</span></span></span></span></span></a> Internet dictionary defines Round Robin Resolution to mean a resolution passed by either the Board or a committee of the Board other than in a meeting of the Board or a meeting of the committee of the Board; or by the Members other than in a General Meeting. </span></span></p> <p class="MsoFootnoteText"> </p> </div> <div id="ftn3"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><a href="#_ftnref3" name="_ftn3" style="color:blue; text-decoration:underline" title="" id="_ftn3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-US" style="font-size:10.0pt" xml:lang="EN-US"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">[3]</span></span></span></span></span></a> <i>Paragraph</i> 26.2 of the Answering Affidavit: It is not correct to say that I am the one who contacted Mr Clark and Mr West to organize a meeting at Coghlan and Wesh on the 18<sup>th</sup> July 2019. I was sick on that day. Mr Zwelibanzi Lunga is the one who came into my house and persisted to me that I should attend such a meeting. He told me that he had discussed with advocate Mpofu and that respondents wanted to resolve the case amicably. I had refused to go at first but he persisted to me and told me that the other parties were going to go out of the country that same day. With such hopes of an amicable resolution of the matter, I proceeded to attend the meeting even though I was sick without knowing that I was going to hand over all company assets and tell the employees to co-operate with Mr Clark and Mr West under duress. The two gentlemen told me that I was going to comply with their demands willingly or by force if I did not consent. That was the reason why I did not even sign the minutes of such a meeting. Those minutes were just brought in at a later stage by Mr Huni and after he had left I was asked to sign them but I did not sign them. I also complied with their demands because I did not want them to end up breaking into the premises by force as they had done previously. </span></span></p> <p class="MsoFootnoteText"> </p> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-40cd7ab692e14632e990ef4383bd58354bae29d1c1e87d8a191fb6a5d9fe7135"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p class="MsoNoSpacingCxSpFirst" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>STEWART DHLIWAYO </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>Versus</b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>WARMAN ZIMBABWE (PVT) LTD </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>And </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>C H WARMAN HOLDINGS (PVT) LTD </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>And </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>WENDY ANNE KING N.O.</b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif">IN THE HIGH COURT OF ZIMBABWE</span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif">DUBE-BANDA J</span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif">BULAWAYO 5 NOVEMBER 2021 &amp; 13 JANUARY 2022 </span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>Application for rescission of judgment </b></span></span></p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"> </p> <p class="MsoNoSpacingCxSpMiddle" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><i>S. Siziba</i> for the applicant</span></span></p> <p class="MsoNoSpacingCxSpLast" style="text-align:justify"><span style="font-size:12pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><i>T. Mpofu</i> for the respondent</span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">            <b>DUBE-BANDA J: </b>This is an application for rescission of judgment. </span>At the outset, and to avoid confusion it is important to state that this application is in terms of rule 63(1) of the High Court Rules, 1971.<a href="#_ftn1" name="_ftnref1" style="color:blue; text-decoration:underline" title="" id="_ftnref1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-US" style="font-size:12.0pt" xml:lang="EN-US"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">[1]</span></span></span></span></span></a> <span lang="EN-US" style="line-height:150%" xml:lang="EN-US"> It is important to state this because the heading of this application is framed thus: court application for the rescission of judgment in terms of rule 449(1) (a) as read with rule 63(1) of the High Court Rules, 1971. Respondents objected to this approach on the basis that an application for rescission cannot be anchored on both rules 63 and 449.   At the commencement of this hearing Mr <i>Siziba</i> counsel for the applicant informed the court that this application is solely in terms of rule 63(1). Mr <i>Mpofu</i> counsel for the respondents did not persist with the objection. Consequently no further reference would be made to rule 449. </span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            In this matter this court is being asked to rescind the judgment it handed down in case number HC 2693/15. <span lang="EN-US" style="line-height:150%" xml:lang="EN-US">The order sought by the applicant is </span><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">couched as follows: </span></span></span></span></span></p> <ol><li style="margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">That the rescission application be and is hereby granted and the order of this court dated 18 July 2019 under cover of HC 2693/15 be and is hereby set aside. </span></span></span></span></li> <li style="margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">That the applicant be and is hereby directed to cause his new attorneys to file an assumption of agency within 7 days of granting of the order in this matter. </span></span></span></span></li> <li style="margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">That there be no order as to costs. </span></span></span></span></li> </ol><p><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Background facts </span></b></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">This application will be better understood against the background that follows. On the facts of this case it is either common cause or cannot be seriously disputed that 1<sup>st</sup> respondent (company) was incorporated on the 8<sup>th</sup> August 1988 and was 100% owned by Research and Development (Pty) Ltd of Australia until 2003. 2<sup>nd</sup> respondent is wholly owned by Research and Development (Pty) Ltd the initial shareholder of 1<sup>st</sup> respondent. C.H. Warman Holdings (Pty) Ltd (2<sup>nd</sup> respondent) and Estate late C.H. Warman (3<sup>rd</sup> respondent) are shareholders in 1<sup>st</sup> respondent. </span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">Applicant </span></span><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">was employed by the 1<sup>st</sup> respondent as a branch manager. He was also its Secretary. A dispute arose between applicant and 1<sup>st</sup> respondent’s directors and shareholders, in the main turning on whether or not applicant had authority to indigenize the company i.e. to change the directors and shareholders of the company. As a result of the disputed indigenization of the 1<sup>st</sup> respondent, applicant became a shareholder through trusts that he created. He also made two employees Ncube and Lunga directors in the company. </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">Aggrieved by what it considered applicant’s misconduct the company on the 29 September 2015 convened a disciplinary hearing against him. A number of allegations were levelled against the applicant. The disciplinary committee found that he had breached section 4(a) of the National Conduct, S.I. 15/06 and was on the evidence before it guilty of the following: appointing himself as director without authority; amending the Memorandum and Articles of Association without authority; failing to update annual returns and failing to submit annual returns from 2001 to 2014; and without authority of shareholders transferred shares on the 14 April 2014; without authority took possession of the employer’s property and also abused some funds; unprocedurally disposed of the company vehicles and did not follow given instructions of the disposal of the vehicles and supplied falsified documents; and conducted himself dishonestly over several given financial transactions and other business dealings, resulting in prejudice to the business.  Consequently he was dismissed from employment with effect from the 30 September 2015. He was ordered to surrender all company assets and advised to approach a Labour Officer should he be aggrieved by the decision of the disciplinary committee. Applicant did not surrender company assets as directed the disciplinary committee.  </span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">            In 2016 respondents (as applicants) sued out a court application (HC 2693/15) wherein applicant was the first amongst other eleven respondents. Applicant (as 1<sup>st</sup> respondent) opposed the application while the other respondents did not. Applicant in HC 2693 /15 took a number of points <i>in limine,</i> and after argument in <i>Warman Zimbabwe (Pvt) Ltd &amp; Ors v Stewart Dhliwayo &amp; Ors</i> HB 175/16 this court ordered that the matter be referred to trial and the papers filed of record to stand as pleadings. </span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">Ininitally the trial in HC 2693/15 was set-down for the 12 to 15 March 2019, it did not commence and the matter was removed from the roll. It was again set down for the 17 July 2019, and again on this date applicant applied for a postponement of the matter and his application was dismissed. The court ordered that the trial should start the following day i.e. 18 July 2018 at 10 O’clock. On the 18 July 2018 there was no appearance for the applicant and default judgment was granted against the all the respondents.  The default judgment is couched in the flowing terms: </span></span></span></span></span></p> <ol><li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">The indigenization of 1<sup>st</sup> plaintiff which was based on an unauthorized indigenization plan submitted by 1<sup>st</sup> defendant be and is hereby set aside and the Compliance Certificate issued by 4<sup>th</sup> respondent defendant on the 1<sup>st</sup> January 2015 be and is hereby cancelled. </span></span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">The appointment of 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> defendants as directors of 1<sup>st</sup> plaintiff is unlawful and of no effect. </span></span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">The allotment of shares in 1<sup>st</sup> plaintiff to 9<sup>th</sup>, 10<sup>th</sup> and 11<sup>th</sup> defendants is unlawful and of no force or effect.</span></span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">The cancellation and substitution by 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> defendants of 1<sup>st</sup> plaintiff’s Articles of Association is invalid and of no force or effect.</span></span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">4<sup>th</sup>, 5<sup>th</sup> and 6<sup>th</sup> defendants are hereby directed to remove the names of 1<sup>st</sup>, 2<sup>nd</sup> and 3<sup>rd</sup> defendants wherever their names appear as signatories in the 1<sup>st</sup> plaintiff’s bank accounts held by them. </span></span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="font-size:11.5pt" xml:lang="EN-US"><span style="line-height:150%">Costs on a punitive scale against 1<sup>st</sup> defendant. </span></span></span></span></span></li> </ol><p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">It is this default judgment that applicant seeks that it be set aside by means of rescission. The application is opposed by the respondents.  It is against this background that applicant on the 19 July 2019 launched this application seeking the relief mentioned above.</span></span></span></span></p> <p><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Preliminary points</span></b></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US"> Each side of the divide made every effort to outdo the other side on the basis of points <i>in limine. </i><span style="color:#1f1f1f">At the commencement of the hearing I informed counsel that</span> I shall adopt a holistic approach. This approach avoids a piece-meal treatment of the matter, in that the points <i>in limine</i> are argued together with the merits, but when the court retires to consider the matter it may dispose of the matter solely on the basis of the points <i>in limine</i> despite that they were argued together with the merits. </span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Applicant’s points <i>in limine </i></span></b></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">No valid opposion for 2<sup>nd</sup> and 3<sup>rd</sup> respondents</span></b></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">At the commencement of the hearing Mr <i>Siziba</i> took a point<i> in limine, </i>that there is no proper or valid opposition by 2<sup>nd</sup> and 3<sup>rd</sup> respondents. It is contended that the depondent to the respondents’ opposing affidavit has relied on the same authority of documents rejected in this court in </span><i><span style="line-height:150%"><span style="color:#1f1f1f">Warman Zimbabwe (Pvt) Ltd and Ors v Dhliwayo and Ors</span></span></i><span style="line-height:150%"><span style="color:#1f1f1f"> HB 175/16. It is argued that since the purported resolution by the 2<sup>nd</sup> respondent was allegedly passed at a purported meeting of the shareholders of 1<sup>st</sup> respondent that was adjudged invalid in this court, it follows that the authorisation of the deponent by the directors of 2<sup>nd</sup> respondent is equally invalid. It is contended that there is no proper or valid opposition before court by the 2<sup>nd</sup> respondent. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">As regards the 3<sup>rd</sup> respondent it is contended that the special power of attorney that is before court as authorising the deponent to represent her was signed on the 25<sup>th</sup> May 2015. It does not specifically authorise or grant the deponent any authority to represent 3<sup>rd</sup> respondent in court proceedings. It is argued that it authorises him in general terms to manage the business affairs of 3<sup>rd</sup> respondent and there is no proof that the depondent is authoirsed to represent 3<sup>rd</sup> respondent in this case. It is argued that there is no proper or valid opposition to the application by the 3<sup>rd</sup> respondent.   </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">In this matter the three respondents were directed to file opposing papers within ten days of service of the court application should they intend to oppose the matter.  Simply put it is applicant who invited all respondents to file a notice of opposition. In general, I do not think a party can cite a litigant in court proceedings and invite such litigant to oppose the matter should it so wish and then make a turn and allege that such litigant has no authority to oppose the matter. See: <i>Mudzengi &amp; Ors v Hungwe &amp; Anor </i>2001 (2) ZLR 175. </span></span><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">To my mind such would amount to double standards and is absolutely untenable. </span><span style="line-height:150%"><span style="color:#1f1f1f">It is in this context that I agree with the submission made by Mr <i>Mpofu</i> that it is astounding that on the facts of this case applicant can question the right of a respondents to respond to an application it has itself filed.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">Mr <i>Mpofu</i> argues that the issue of authority has been improperly taken. It is contended that applicant is confusing the distinction between the authority to bring proceedings and being a witness in the proceedings. I agree. Cut to the borne, what applicant is challenging is the deponent’s (Nyoni’s) competence to depose to the opposing affidavit on behalf of the respondents. I say so because 2<sup>nd</sup> and 3<sup>rd</sup> respondents are not being represented by the deponent in these proceedings, but by their legal practitioners of record. The deponent is merely a witness, if this was a trial he would simply take the witness stand and testify under oath. This position was stated with clarity in </span></span><i><span style="line-height:150%"><span style="color:#4a4a4a">Willoughby's Investments (Pvt) Ltd v Peruke Investments (Pvt) Ltd &amp; Anor</span></span></i><span style="line-height:150%"><span style="color:#4a4a4a"> HH 178/14, where the court held thus: </span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:12pt"><span style="line-height:115%"><span style="text-autospace:none"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:115%"><span style="color:#4a4a4a">The applicant persisted with the contention that the deponent was not authorised to represent the respondent.  That argument seems to be raised with amazing regularity these days.  The applicant’s contention is not that the respondent has not sanctioned the opposition to the application but, rather, that the deponent is not authorised to represent the respondent in these proceedings.  But the respondent is represented not by the deponent but by its legal practitioners.  The rules are clear as to the qualification for a person to depose to an affidavit.  Order 32 r 227(4) provides that an affidavit filed in written applications “shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein”.  In other words, a person who has knowledge of the facts and can swear to those facts is the one qualified to depose to an affidavit in application proceedings.  The applicant is not contesting the assertion that the deponent to the affidavit has knowledge of the facts stated in the affidavit.  The cases cited by the applicant in its heads of argument relate to authority to institute proceedings on behalf of a company or to take certain decisions on its behalf, and not to the competence of a witness to depose to an affidavit on behalf of a company.  Compare <em>Madzivire &amp; Others </em>v<em>Zvarivadza &amp; Others </em>2005 (2) ZLR 148(H); see also <em>Madzivire &amp; Others</em> v<em>Zvarivadza &amp; Ors </em>2006 (1) ZLR 514(S<em>)</em>.  For that reason, the objection cannot be sustained.</span></span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:150%"><span style="color:#4a4a4a">The applicant is not contesting the assertion that the deponent to the opposing affidavit has knowledge of the facts stated in the affidavit.  Therefore he is a competent deponent or witness in this matter. As a deponent or witness he can only be disqualified if he does not meet the requirement of Order 32 r 227(4) of the High Court Rules, 1971 which provides that an affidavit filed in written applications “shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein.” </span></span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:150%"><span style="color:#4a4a4a">As a deponent he is not instituting proceedings on behalf of 2<sup>nd</sup> and 3<sup>rd</sup> respondents or to taking certain decisions on their behalf.  This is a distinction that must be taken note of i.e. the difference between the authority to institute or defend proceedings and the competence of a witness to depose to an affidavit on behalf of a litigant.</span></span></span> <span style="line-height:150%"><span style="color:#1f1f1f">On the facts of this case </span></span><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:150%"><span style="color:#4a4a4a">I find that the deponent is a competent witness to depose to the opposing affidavit on behalf of 2<sup>nd</sup> and 3<sup>rd</sup> respondents. </span></span></span><span style="line-height:150%"><span style="color:#1f1f1f">The contention that there is no company resolution appointing him to represent the 2<sup>nd</sup> and 3<sup>rd</sup> respondents in this matter must fail.</span></span> </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">This should really mark an end to the inquiry into this point <i>in limine</i>, but for the sake of completeness I deal with other anciliary issues taken by applicant. Applicant submits that the deponent to the opposing affidavit is relying on the same authority or documents which were rejected by this court in the main matter HC 2693/15.  <span style="line-height:150%"><span style="color:#1f1f1f">Again a clear look at the judgment in <i>Warman Zimbabwe (Pvt) Ltd and Ors v Dhliwayo and Ors </i>shows that this court did not deal with the competence of the deponent to depose to the opposing affidavit on behalf of the of the 2<sup>nd</sup> respondent and special power of attorney signed by the 3<sup>rd</sup> respondent. In fact I take the view that there is nothing irregular about the special power of attorney. To my mind based on the facts of this case there is a proper and valid notice of opposition by 2<sup>nd</sup> and 3<sup>rd</sup> respondents. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">Furthermore the authority of the deponent to depose to the opposing affidavit on behalf of the 1<sup>st</sup> respondent has not been challenged. It is trite that what has not been challenged is taken to have been admitted. Therefore even on applicant’s best case this application is still opposed. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="text-autospace:none"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">In any event on the 12<sup>th</sup> August 2019 1<sup>st</sup> respondent passed a resolution authorising and empowering the deponent to sign the affidavit on its behalf. This resolution was passed by means of a Round Robin.<a href="#_ftn2" name="_ftnref2" style="color:blue; text-decoration:underline" title="" id="_ftnref2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span style="font-size:12.0pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="color:#1f1f1f">[2]</span></span></span></span></span></span></a> </span></span><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:150%">A </span></span><a href="https://www.lawinsider.com/dictionary/round-robin-resolution" style="color:blue; text-decoration:underline"><span style="line-height:150%">Round Robin resolution</span></a><span lang="EN-US" style="background:white" xml:lang="EN-US"><span style="line-height:150%"> of directors is as valid and effectual as if it had been passed at a meeting of the directors duly called and constituted, provided that the majority of the directors have voted in favour of the matter. Again on this basis the application is still opposed by the 1<sup>st</sup> respondent. </span></span><span style="line-height:150%"><span style="color:#1f1f1f">It is for these reasons that applicant’s point <i>in limine</i> must fail and it is accordingly refused. </span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span style="line-height:150%"><span style="color:#1f1f1f">Respondents’ points <i>in limine </i></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><i>            </i></b><span style="line-height:150%"><span style="color:#1f1f1f">Respondent raised the following points <i>in limine viz</i> non-joinder of parties who were cited in the application that yielded the judgment sought to be rescinded; judgement sought to be rescinded has been given full effect to with applicant’s participation and consent and there is nothing to rescind i.e. doctrine of peremption and mootness;  and material non-disclosure and material falsehoods. It is contended that the points <i>in limine</i> be upheld and the application be dismissed without any consideration of the merits.  </span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="line-height:150%"><span style="color:#1f1f1f">I now deal with these points <i>in limine</i> in turn. </span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b>The Doctrine of Peremption</b></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Mr <i>Mpofu</i> argued that it is well established in law that a party who becomes aware of a judgment and acquiesces therein is precluded thereafter from applying for rescission of the same judgment as the right to challenge it would have become perempted. Respondents submits that a party who has acquiesced in a judgment cannot thereafter seek to challenge it. It is contended that applicant has acquiesced to the order he seeks to be set aside by means of rescission of judgment.  It is submitted that applicant has acquiesced in the judgment in that on the 18 July 2019 he contacted Mr Clark and Mr West for a meeting at the offices of Coghlan and Welsh Legal Practitioners and requested that it be a “no lawyers meeting.” At the meeting he handed over the company and accounted to what he termed his principals i.e.  Mr Clark and Mr West. </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In his affidavit Charl Henning Clark (Mr Clark) states that on the 18 July 2019, after attending court and default judgement was granted against applicant they were advised that applicant was seeking a meeting to hand over the assets and control of the company. A meeting was held at about 1500 hours at the offices of Coghlan and Welsh Legal Practitioners.  In attendance was Clark, Mr John West and applicant. In that meeting applicant gave an account of the affairs of 1<sup>st</sup> respondent and informed all the employees to hand over all the company assets. Applicant further informed the employees to report to Mr Clark and Memezi Tariro Nyoni (the deponent to the opposing affidavit).</span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In his supporting affidavit Lunga avers that he contacted applicant and advised him to handover the company to the respondents and to settle the matter out of court. He met applicant and urged him to do this in earnest and not prolong the dispute. He advised applicant to meet the two representatives of the respondents to map the way forward. Applicant agreed and as a result a meeting was held  and the premises and vehicles of the company were subsequently handed over to the representatives of the respondents.  Mr Lunga resigned as a director in 1<sup>st</sup> respondent. </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In his supporting affidavit Mr Ncube avers that he was employed by 1<sup>st</sup> respondent as a Sales Engineer until 30 September 2015. In January 2015, applicant called a meeting and advised the employees of 1<sup>st</sup> respondent to stop reporting to Weir Minerals Africa (Pvt) Ltd and that anyone who engaged Weir directly would be dismissed. Mr Ncube was then appointed a director in 1<sup>st</sup> respondent. He says he did not solicit for the appointment neither was he shown any authority from the shareholders. When Weir Minerals Africa (Pvt) Ltd advised him that it had not blessed applicant’s actions, he resigned as a director on the 28 September 2015.</span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In his answering affidavit applicant avers that it is not correct to say that he is the one who contacted Mr Clark and Mr West to organize a meeting at Coghlan and Wesh on the 18<sup>th</sup> July 2019. It is Mr Lunga who requested him to attend such a meeting. He initially refused to attend the meeting. He agreed to attend because of the hopes of an amicable resolution of the matter. He did not know that he was going to hand over all company assets and tell the employees to co-operate with Mr Clark and Mr West. He acted under duress. He says he was told by Mr Clark and Mr West that he was going to comply with their demands willingly or by force if he did not consent. He says he also complied with their demands because he did not want them to end up breaking into the premises by force as they had done previously.<a href="#_ftn3" name="_ftnref3" style="color:blue; text-decoration:underline" title="" id="_ftnref3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-US" style="font-size:12.0pt" xml:lang="EN-US"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">[3]</span></span></span></span></span></a> </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In his evidence and submissions applicant denies that the handover of the company was voluntary. It is said he handed over the company as a result of duress. It is contended that the handing over of the company should not be used to defeat applicant’s case.  The high watermark of applicant’s opposition to this point<i> in limine</i> is duress. It is important to note that he does not dispute that he has complied with the judgment in HC 2693/15, he contends that he did so under duress. This narrows the inquiry to whether or not his compliance was induced by duress. </span></span></span></span></p> <p class="JUDGMENTNUMBERED" style="text-indent:34.0pt; text-align:justify"><span style="font-size:13pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-ZA" style="font-size:12.0pt" xml:lang="EN-ZA"><span style="line-height:150%">According to the common law doctrine of peremption, a party who acquiesces to a judgment cannot subsequently seek to challenge the judgment to which he has acquiesced. This doctrine is founded on the logic that no person may be allowed to opportunistically endorse two conflicting positions or to both approbate and reprobate, or to blow hot and cold. It may even be said that a party will not be allowed to have her cake and eat it too. </span></span><span lang="EN-GB" style="font-size:12.0pt" xml:lang="EN-GB"><span style="line-height:150%">Although the doctrine has its origin in appeals, the doctrine and its principles do apply equally in the case of rescission. See: </span></span><i><span lang="EN-ZA" style="font-size:12.0pt" xml:lang="EN-ZA"><span style="line-height:150%">Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others </span></span></i><span lang="EN-ZA" style="font-size:12.0pt" xml:lang="EN-ZA"><span style="line-height:150%">[2021] ZACC 28[1] para. 101. </span></span></span></span></span></p> <p style="text-align:justify; text-indent:34.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The doctrine of peremption was enunciated in <i>Hlatswayo v Mare and Deas</i> <span style="line-height:150%">1912 AD 242</span> where Lord De Villiers held that ‘where a man has two courses of action open to him and he unequivocally takes one he cannot afterwards turn back and take the other.’ Similarly, in <i>Dabner v South African Railways and Harbours</i> <span lang="EN-US" style="line-height:150%" xml:lang="EN-US">1920 AD 583 @ 594 </span>Innes CJ stated:</span></span></span></p> <p style="margin-left:48px; text-align:justify; text-indent:3.0pt"><span style="font-size:12pt"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with Sentraale Ko-Operatiewe Graan any intention to appeal. And the onus of establishing that position is upon the party alleging it. In doubtful cases acquiescence, like waiver, must be held non-proven. </span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">In <i>Gentiruco A.G. v Firestone S.A. (Pvt) Ltd.</i> 1972 (1) AD 589 @ 600 A-B the court said the right of an unsuccessful litigant to appeal against an adverse judgment or order is said to be perempted if he, by unequivocal conduct inconsistent with an intention to appeal shows that he acquiesces in the judgment or order. See: <i>Cohen v Cohen</i> 1980 ZLR 286 and <i>Collective Self Finance Scheme v Asharia</i> 2000 (1) ZLR 472 (SC). </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">I take the view that the facts are clear. Applicant was requested and not compelled by Mr Lunga to comply with the order he seeks this court to rescind. When he agreed to attend the meeting he knew its agenda.  It is a falsehood that he did not know that he was going to hand over company assets and tell the employees to report and co-operate with Mr Clark and Mr West. I say so because this was the very purpose of the meeting. Lunga advised him to attend the meeting and hand over the company to its owners. So when he left his home he knew that at the meeting he was going to hand over the company. It is falsehood that he was under duress. The allegation of duress is just a <i>red herring.</i> I say so because there is no evidence that Mr Clark and Mr West forced applicant to handover the company. It is Mr Lunga who advised him that the game was over he must just hand over the company and he agreed. It is inconsequential that he did not sign the minutes of the meeting held with Mr Clark  and Mr West. </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Applying the doctrine of peremption to the facts of this case, it is incontrovertible that the applicant by his conduct unequivocally acquiesced to the default judgment obtained against him on the 18<sup>th</sup> July 2019.  He a<span lang="EN-US" style="line-height:150%" xml:lang="EN-US">ttended a meeting with the directors of respondents and made a handover and takeover of the 1<sup>st</sup> respondent’s assets. He advised the employees of the new changes in 1<sup>st</sup> respondent. Applicant voluntarily yielded control of 1<sup>st</sup> respondent and respondents have taken control ever since. Applicant’s co-directors Lunga and Ncube have since resigned, and there is a new outlook which cannot be undone. On the facts of this case what is done cannot be undone. I am satisfied that by handing over the company to the respondents’ directors applicant </span>unequivocally acquiesced with the judgment in HC 2693/15.</span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">There would be no useful purpose to even consider the merits of the application when applicant unequivocal </span>acquiesced to the default judgment he seeks this court to rescind. Such acquiescence is fatal to this application.</span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Having found that this point <i>in limine</i> has merit, it is not necessary for me to consider the other preliminary points taken by the respondents. </span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">The general rule in matters of costs is that the successful party should be given its costs, and this rule should not be departed from except where there are good grounds for doing so. I can think of no reason why I should deviate from this general rule. I therefore intend awarding costs against the applicant. </span></span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><b><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">Disposition </span></b></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">I am satisfied that the respondents have discharged the <i>onus</i> of showing that applicant acquiescence with the judgment he seeks this court to rescind. His conduct was unequivocal and inconsistent with any intention to challenge the judgment in HC 2693/15. There is no doubt at all in this case that applicant acquiescenced with the judgment. He cannot seek its rescission.  It is for these reasons that this point <i>in limine</i> must succeed. </span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In the result, I order as follows:</span></span></span></p> <ol><li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The point <i>in limine</i> regarding peremption, that is to say applicant voluntarily <span lang="EN-US" style="line-height:150%" xml:lang="EN-US">acquiesced with the default judgment in HC 2693/15 and he cannot seek to have it rescinded is upheld. </span></span></span></span></li> <li style="text-align:justify; margin-left:8px"><span style="font-size:12pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span lang="EN-US" style="line-height:150%" xml:lang="EN-US">The application for rescission of judgment be and is hereby dismissed with costs of suit. </span></span></span></span></li> </ol><p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:normal"><span style="font-family:&quot;Times New Roman&quot;,serif"><i>Z. Ncube &amp; Partners </i>plaintiffs’ legal practitioners </span></span></span></p> <p style="text-align:justify"><span style="font-size:12pt"><span style="line-height:normal"><span style="font-family:&quot;Times New Roman&quot;,serif"><i>Coghlan and Welsh </i>respondent’s legal practitioners </span></span></span></p> <p style="text-align:justify"> </p> <div>  <hr align="left" size="1" width="33%" /><div id="ftn1"> <p class="MsoFootnoteText" style="text-align:justify"><span style="font-size:10pt"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"><a href="#_ftnref1" name="_ftn1" style="color:blue; text-decoration:underline" title="" id="_ftn1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-US" style="font-size:10.0pt" xml:lang="EN-US"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">[1]</span></span></span></span></span></a> This application was filed prior to the enactment of the High Court Rules, 2021.</span></span></span></p> </div> <div id="ftn2"> <p class="MsoFootnoteText" style="text-align:justify"><span style="font-size:10pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><a href="#_ftnref2" name="_ftn2" style="color:blue; text-decoration:underline" title="" id="_ftn2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-US" style="font-size:10.0pt" xml:lang="EN-US"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">[2]</span></span></span></span></span></a> Internet dictionary defines Round Robin Resolution to mean a resolution passed by either the Board or a committee of the Board other than in a meeting of the Board or a meeting of the committee of the Board; or by the Members other than in a General Meeting. </span></span></p> <p class="MsoFootnoteText"> </p> </div> <div id="ftn3"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:&quot;Times New Roman&quot;,serif"><a href="#_ftnref3" name="_ftn3" style="color:blue; text-decoration:underline" title="" id="_ftn3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-US" style="font-size:10.0pt" xml:lang="EN-US"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">[3]</span></span></span></span></span></a> <i>Paragraph</i> 26.2 of the Answering Affidavit: It is not correct to say that I am the one who contacted Mr Clark and Mr West to organize a meeting at Coghlan and Wesh on the 18<sup>th</sup> July 2019. I was sick on that day. Mr Zwelibanzi Lunga is the one who came into my house and persisted to me that I should attend such a meeting. He told me that he had discussed with advocate Mpofu and that respondents wanted to resolve the case amicably. I had refused to go at first but he persisted to me and told me that the other parties were going to go out of the country that same day. With such hopes of an amicable resolution of the matter, I proceeded to attend the meeting even though I was sick without knowing that I was going to hand over all company assets and tell the employees to co-operate with Mr Clark and Mr West under duress. The two gentlemen told me that I was going to comply with their demands willingly or by force if I did not consent. That was the reason why I did not even sign the minutes of such a meeting. Those minutes were just brought in at a later stage by Mr Huni and after he had left I was asked to sign them but I did not sign them. I also complied with their demands because I did not want them to end up breaking into the premises by force as they had done previously. </span></span></p> <p class="MsoFootnoteText"> </p> </div> </div></span></div></div> </div> </div> Wed, 05 Oct 2022 06:58:01 +0000 RufaroD 12685 at http://www.zimlii.org Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited (81 of 81) [2022] ZWSC 81 (14 July 2022); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2022/81 <span class="field field--name-title field--type-string field--label-hidden">Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited (81 of 81) [2022] ZWSC 81 (14 July 2022);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/1451" hreflang="en">Arbitration appeal</a></div> <div class="field__item"><a href="/taxonomy/term/1454" hreflang="en">Arbitration awards</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Sandra Muengwa</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 07/25/2022 - 07:48</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2022/81/2022-zwsc-81.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=45121">2022-zwsc-81.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2022/81/2022-zwsc-81.pdf" type="application/pdf; length=653734">2022-zwsc-81.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p align="right" style="text-align:right"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">Judgment No. SC 81/22</span></b></span></span></span></p> <p align="right" style="text-align:right"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">Case No. SC 565/19</span></b></span></span></span></p> <p align="right" style="text-align:right"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">Ref Case No. LC/H/82/11</span></b></span></span></span></p> <p> </p> <p> </p> <p><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><u><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">REPORTABLE</span></span></span></u></b><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">        (67)</span></span></span></b></span></span></span></p> <p align="center" style="text-align:center"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">EDMORE     MAPONDERA     AND     55     OTHERS</span></span></b></span></span></span></p> <p align="center" style="text-align:center"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">v</span></span></b></span></span></span></p> <p align="center" style="text-align:center"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">FREDA     REBECCA     GOLD     MINE     HOLDINGS     LIMITED</span></span></span></b></span></span></span></p> <p align="center" style="text-align:center"> </p> <p><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">SUPREME COURT OF ZIMBABWE </span></span></span></b></span></span></span></p> <p><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">MAVANGIRA JA, BHUNU JA &amp; CHITAKUNYE JA</span></span></span></b></span></span></span></p> <p><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">HARARE: 3 JULY 2021 AND 14 JULY 2022</span></span></span></b></span></span></span></p> <p> </p> <p> </p> <p> </p> <p><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">A. K. Maguchu, </span></span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">for the appellants</span></span></span></span></span></span></p> <p><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">T. Mpofu, </span></span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">for the respondent</span></span></span></span></span></span></p> <p> </p> <p> </p> <p> </p> <p><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">BHUNU JA:</span></span></span></b></span></span></span></p> <p><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">INTRODUCTION</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[1]        This is a partial appeal against the judgment of the Labour Court, (the court <i>a quo)</i> LC/H/2/19 dated 7 February 2019. The appeal is against the court <i>a quo’s</i> ruling on the question of citation of the parties and the arbitrator’s failure to award damages as an alternative to reinstatement.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[2]        The appeal was initially set-down for hearing on 11 September 2020 whereupon it was removed from the roll by consent of the parties to consider placing it before a full bench comprising a panel of 5 judges in terms of s 3 of the Supreme Court Act [<i>Chapter 7:13</i>].</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[3]        Upon due consideration of the nature and complexity of the appeal, the learned presiding judge  determined that there was no need to set up a full bench comprising 5 judges to deliberate over the appeal as it was eminently capable of resolution by a three panel bench as previously constituted. The appeal was then set down for hearing before the same panel of judges on 16 June 2021.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">BRIEF SUMMARY OF THE CASE</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[4]        The 56 appellants were employed by the respondent Freda Rebecca Mine Holdings Limited in various capacities at its mine in Bindura. Owing to virulent economic hardships at the time, the respondent ceased its mining operations sometime in 2008 without terminating the appellants’ respective contracts of employment.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[5]        Sometime in 2009 the respondent sought to resuscitate its mining operations. In doing so it unilaterally sought to reengage the appellants on inferior contracts different from those obtaining as at the time it ceased operations in 2008. A dispute then arose concerning the appropriate terms of employment upon resumption of mining operations  </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[6]        Following failure to resolve the dispute the respondent arbitrarily wrote to the appellants terminating their original contracts of employment. The termination letters were written on a standard letterhead bearing the name <b>FREDA REBECCA GOLD MINE. </b>The letters were signed by one T Chivonivoni who designated himself/herself as the <b>GENERAL MANAGER- FREDA REBECCA GOLD MINE. </b></span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[7]        Dissatisfied by the turn of events, the appellants took the dispute to the designated agent. The designated agent referred the dispute to conciliation. Upon failure of the conciliation process the conciliator issued a certificate of no settlement and completed a Reference to Arbitration on a standard form in which he designated the parties as, <b><i>“Freda Rebecca Mine alleged unfair labour practice of E Mapondera and 60 others</i></b><i>”</i><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[1]</span></span></span></span></span></a>. The reference form is dated 12 May 2010. It is common cause that the proper citation of the respondent as a party to legal proceedings ought to have been <b>Freda Rebecca Gold Mine Holdings Limited.   </b></span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">TERMS OF REFERENCE</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[8]        The arbitrator’s terms of reference were, “To determine whether the dismissal of E. Mapondera and 60 others was lawful or not.”</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[9]        At the hearing before the arbitrator the respondent took the preliminary objection that apart from Edmond Mapondera the rest of the remaining appellants had no <i>locus standi</i> because their names had not been listed as claimants and E Mapondera was not authorised to represent them.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[10]      Counsel for the appellants argued that the respondent had always been aware that the case involved 61 employees whose identities had not been placed in issue at conciliation stage. It was only at the arbitration stage that the respondent belatedly sought to make it an issue. During the course of the arbitration proceedings, the arbitrator was then provided with a list of the concerned employees comprising a total of 58 claimants. The list of the claimants who were party to the proceedings was availed to the respondent</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[11]      The arbitrator dismissed the objection <i>in limine</i> on the ground that the appellants had a real and substantial interest in the matter and that right from the initiation of the legal proceedings the respondent knew the identity of its adversaries. Having dismissed the preliminary objection, the arbitrator proceeded to make an award in favour of E Mapondera and 57 others on 12 January 2011.  The award was couched in the following terms:</span></span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“1.          That the claimants are hereby reinstated to their positions without loss of salary and benefits with effect from the date of unlawful dismissal.</span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">2.            Each party to meet its own costs.”</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[12]      Dissatisfied with the arbitral award, the respondent appealed to the court<i> a quo</i> with partial success.  It took the following 4 grounds on appeal:</span></span></span></span></span></span></p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“1.     The Honourable arbitrator unprocedurally accepted evidence submitted by the claimants subsequent to the arbitration hearing in respect of the purported hearing in respect of the purported identity of the innominate (sic) 60 other claimants who had not been included by name in the original claim.</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">2.       The Honourable arbitrator fundamentally misdirected himself in finding that since the alleged 60 other employees had a substantial interest in the matter they did not need to be identified and to be made parties in     arbitration proceedings before him. The fact that the employees have any kind of interest in the matter did not dispense with the entitlement of the appellant to know who the said appellants were at the commencement and during the course of the proceedings. The production of the names of the employees subsequent to the hearing and without an opportunity for the appellant to challenge the accuracy of the names and the positions so stated for the employees violated the appellant’s right to a fair hearing before an independent and impartial tribunal. </span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">3.       The Honourable Arbitrator fundamentally misdirected himself in failing to find that the contracts of employment for the said employees, E           Mapondera &amp; 60 Others had terminated by operation of law and the appellant could only re-engage the employees in terms of new contracts of employment. The said former employees having refused to sign new contracts of employment, the appellant lawfully confirmed the termination of their contracts of employment by operation of law on the 5<sup>th</sup> of March 2010. </span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">4.       The Honourable arbitrator fundamentally misdirected himself in ordering the reinstatement of E Mapondera &amp; 60 other employees without affording the Appellant an opportunity to pay damages in lieu of reinstatement. The order of reinstatement without the alternative for the payment of damages is not consistent with the ordinary rules of the law of contract and the specific circumstances of the appellant”</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">THE RELIEF SOUGHT</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[13]      On the basis of the above grounds of appeal the appellant sought the following relief:</span></span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“(i)         That the claimant’s claim be and is hereby dismissed.</span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(ii)          Alternatively that in the event that the Honourable court finds that the contracts of employment for the Respondents were not lawfully terminated, that the Appellant is hereby directed to pay the Respondents damages in lieu (sic) of reinstatement.</span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">(iii)         The Respondents shall pay the costs of suit.”</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[14]      Upon consideration of the facts and the law the court <i>a quo</i> found that the arbitration proceedings were a nullity at law because the claimants had cited a non-existent person and that the 2<sup>nd</sup> to 60 employees were not a party to the arbitration proceedings.</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[15]      It also found that the arbitrator had no discretion to award reinstatement without an alternative of payment of damages for unlawful dismissal. It therefore ordered as follows: </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“It is accordingly ordered that-</span></span></span></span></span></p> <ol><li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The appeal be and is hereby allowed on grounds 1, 2, 4 and 5. </span></span></span></span></span></li> <li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The appeal falls on ground of appeal 3.</span></span></span></span></span></li> <li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Overly the appeal succeeds as the proceedings were a nullity due to wrong identity of the employer.</span></span></span></span></span></li> <li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">Each party to bear its costs.”</span></span></span></span></span></span></li> </ol><p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[16]      Aggrieved by the above order the appellants appealed to this Court challenging the court <i>a quo’s </i>order on the following grounds:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“GROUNDS OF APPEAL</span></span></b></span></span></span></p> <ol><li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The court <i>a quo</i> erred at law in finding that the citation of the respondent through its trade name “Freda Rebecca Mine” was such an irregularity whose effect rendered the entire proceedings a nullity.</span></span></span></span></span></li> </ol><p style="margin-left:12px; text-align:justify"> </p> <ol start="2"><li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The court erred at law in finding that 2<sup>nd</sup> to 61<sup>st</sup> appellants were not properly cited before the Arbitrator and that the extent of the impropriety was such that they were all not party to the arbitration proceedings.</span></span></span></span></span></li> </ol><p style="margin-left:12px; text-align:justify"> </p> <ol start="3"><li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The court <i>a quo</i> erred at law in finding that the Arbitrator has no power to order an employer to reinstate an unlawfully dismissed employee without giving the same employer the option to pay          damages <i>in lieu</i> of reinstatement to the employee. “</span></span></span></span></span></li> </ol><p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[17]      On the basis of the above grounds of appeal, the appellants prayed for the following relief:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">1.            That the appeal succeeds with costs </span></span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">2.            That the judgment of the court <i>a quo</i> is partially overturned and the order substituted with the following:</span></span></span></span></span></span></p> <p style="margin-left:123px; text-align:justify; text-indent:-35.45pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“(a)      The preliminary point raised by the Appellant relating to its miscitation be and is hereby dismissed.</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:113px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(b)     The preliminary point raised by the Appellant relating to the proper citation of the 2<sup>nd</sup> to the 61<sup>st</sup> Respondents be and is hereby dismissed. The 2<sup>nd</sup> to 61<sup>st</sup> Respondents are hereby held to be properly before the court.</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:113px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(c)     The appeal be and is hereby dismissed with costs and the arbitration award be and is hereby upheld.”</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">ISSUES FOR DETERMINATION</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[18]      The grounds of appeal raise the following three cardinal issues for determination: </span></span></span></span></span></span></p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">1.       Whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.</span></span></span></span></span></span></p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">2.       Whether or not the appellants were properly before the Arbitral Tribunal.</span></span></span></span></span></span></p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">3.       Whether or not it was proper for the Arbitral Tribunal to order reinstatement of the appellants without an alternative of payment of damages <i>in lieu</i> of reinstatement.</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">ANALYSIS AND DETERMINATION OF THE ISSUES </span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[19]      It is pertinent to note at this juncture that the judgment appealed against in this case is to a large extent grounded on legal technicalities. A lot of industry has been expended by learned counsel in placing reliance on procedural legal technicalities that are best suited for courts of law rather than arbitral tribunals. It is trite that the object of arbitral tribunals is to do simple justice for the common person without being shackled by legal technicalities and formalities pertaining to an ordinary court of law. To this end in arbitration the rules of procedure are often relaxed and the arbitrator has a wide discretion provided that justice can be attained without doing violence to the basic tenets of natural justice. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[20]      Likewise, s 90A of the Labour Act [<i>Chapter 28:01</i>] is meant to unshackle the court <i>a quo</i> from the vice grip of rigid legal rules, formality and technicalities. It provides as follows:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“<b>90A Procedure and evidence in the Labour Court</b></span></span></span></span></span></span></p> <ol><li style="margin-left:36px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The Labour Court shall not be bound by the strict rules of evidence, and the court may ascertain any relevant fact by any means which the presiding officer thinks fit and which is not unfair or unjust to either party.</span></span></span></span></span></span></li> </ol><p style="margin-left:86px; text-align:justify"> </p> <ol start="2"><li style="margin-left:36px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Evidence may be adduced orally or in writing in any proceedings in the Labour Court, at the discretion of the presiding officer.</span></span></span></span></span></span></li> </ol><p style="text-align:justify"> </p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(3) The parties or their representatives to any proceedings in the Labour Court shall be entitled to question or cross-examine each other or any witness.</span></span></span></span></span></span></p> <p style="margin-left:86px; text-align:justify; text-indent:-36.0pt"> </p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(4)     It shall be the responsibilities of the presiding officer to ascertain the facts in any proceedings in the Labour Court, and for that purpose he or she may—</span></span></span></span></span></span></p> <ol style="list-style-type:lower-alpha"><li style="margin-left:111px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">call any party or his or her representative;</span></span></span></span></span></span></li> </ol><p style="margin-left:151px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(<i>b</i>) question or cross-examine any party or his or her representative or witness; and</span></span></span></span></span></span></p> <p style="margin-left:151px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(<i>c</i>) put any question to a party or his or her representative or witness which is suggested to him or her by any party.”</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[21]      It is self-evident that s 90A of the Act distinguishes ordinary courts of law from the Labour Court as a special court. The law maker therefore saw it fit to confer the court <i>a quo</i> with a wider discretion than that obtaining in the ordinary courts of law in order to do simple industrial justice.  </span></span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"> </span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[22]      Because of their legal training and the involvement of lawyers, Labour Court judges often stray into the morass of legal jargon and technicalities much to the bewilderment of the unsophisticated litigants. This unwelcome tendency has the undesirable effect of mystifying industrial legal proceedings thereby clouding the dispensation of industrial justice. It therefore acts as a barrier to accessing industrial justice. This prompted McNALLY JA in <i>Dalny Mine v Banda<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[2]</span></span></span></b></span></span></a></i> to remark that:</span></span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this I do not mean that such irregularities should be ignored. I mean that    such irregularities should be put right.”</span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"> </p> <p style="margin-left:38px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[23]      In <i>Edmore Taperesu Mazambani v International Trading Company (Private) Limited and Anor</i><a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[3]</span></span></span></span></span></a> MATHONSI JA had occasion to make similar remarks when he said:</span></span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities.”</span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[24]      It is therefore clear from the authorities that the primary function of the court <i>a quo</i> is to do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law are beginning to mellow and drift towards the idea of correction of simple procedural errors in order to do real and substantial justice.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[25]      When interpreting statutes and codes of conduct, the court <i>a quo</i> should endeavour to give a broad liberal interpretation that is not embroiled in flimsy legal technicalities in order to achieve social justice based on equitable labour standards. On that score, I now proceed to determine whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">WHETHER OR NOT THE ALLEGED IMPROPER CITATION OF THE RESPONDENT RENDERED THE ENTIRE PROCEEDINGS A NULLITY</span></span></span></b></span></span></span></p> <p style="margin-top:16px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[26]      Generally speaking, it is undisputable and a matter of trite elementary law that one cannot sue a non-existent person. In the leading case of <i>Gariya Safaris (Pvt) Ltd v van Wyk<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[4]</span></span></span></b></span></span></a> </i>the<i> </i>High Court had occasion to remark that:</span></span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void <i>ab initio.”</i></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[27]      That proposition of law was cited with approval by this Court in <i>Fadzai John v Delta Beverages<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[5]</span></span></span></b></span></span></a></i> and a host of other cases cited by the respondent from both local and foreign jurisdictions. It is thus settled law and a matter of common sense that one cannot sue a non-existent person. </span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[28]      The main distinguishing feature in this case is that arbitral proceedings are different from trial proceedings in courts of law. Sight should therefore not be lost that trial proceedings in a court of law are commenced by summons drafted by the plaintiff. On the other hand arbitral proceedings are commenced by a reference drafted by the conciliator in terms of the Act. The claimant has no control over the drafting of the reference to arbitration whereas the plaintiff has full control over the drafting of the summons. It would therefore seem unfair and unjust to penalise the claimant for the sins of the conciliator in crafting the reference. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[29]      Counsel for the appellants further argued that where there is a person who actually exists who is sued in their colloquial, nickname or some other informal name, an amendment is permissible to formalise or regularise the citation. For that proposition of law he placed reliance on the South African case of <i>Four Tower Investments (Pty) Ltd v Andre’s Motors<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[6]</span></span></span></b></span></span></a></i> among others. In that case, shortly before the hearing of the appeal it was discovered that in the summons and particulars of claim the plaintiff had been incorrectly cited and referred to as a company called <i>Four Tower Investments (Pty) Ltd</i> whereas it had been at all times a close corporation called <i>Four Tower Properties CC</i>. In the lease agreement which was the subject of the dispute between the parties it was also referred to as a company. The letting agent was responsible for the misdescription. Following an application for an amendment to regularize the citation the court held that under the circumstances an amendment was permissible.  The headnote reads:</span></span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“an application for an amendment would always be allowed  unless it was made <i>mala fide</i> or would cause prejudice to the other party which could not be compensated for by an award of costs or  by some other suitable order such as a postponement. (At 43H). </span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Held</span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">, further that there had been a gradual move from an overly formal approach and in line with this approach courts should be careful not to find prejudice where none really exists. (At 44I-J)</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i>         </i></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Held</span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif"> further, that the fact on its own that the citation or description of a party happened to be of a non-existent entity should not render the summons a nullity.</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Held </span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">further, that in the present case the citation of the plaintiff had been nothing more than a misdescription and the application for amendment had to be allowed. (At47F)”</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[30]      It is needless to say that the <i>Four Tower </i>case<i> supra</i> is on all fours with the instant case. The judgment is grounded on sound logic and meets the ends of justice between litigants.</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[31]      Back home, in <i>Muzenda v Emirates Airlines &amp; Others<a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[7]</span></span></span></b></span></span></a> </i>the Emirates Airlines had been misdescribed as Arab Airlines. In allowing the amendment to regularize the name, MATANDA MOYO J had this to say:</span></span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“I am of the view that the description of a party to a suit does not immutably determine the nature and identity of a party. The law reports are full with instances where the correct description of a party was allowed, in the absence of prejudice to the other party involved. This would be done after an application to amend. The plaintiff herein was not diligent. After being advised of the wrong citation of first defendant, all she had to do was apply for amendment. I would have granted such amendment as I am of the view that there was no prejudice to first defendant. However the court can only do so upon asking. The court cannot <i>mero motu </i>grant orders not sought. Without such amendment, the first defendant remains wrongly cited. See <i>ZFC Ltd</i> v <i>Taylor</i> 1999 (1) ZLR 308 and Order 20 r 132 and 134 of this court’s rules, <i>Commercial Union Assurance Company Limited</i> v <i>Waymark NO</i> 1995 (2) See <i>ZFC Ltd</i> v <i>Taylor</i> 1999 (1) ZLR 308 and Order 20 r 132 and 134 of this court’s rules, <i>Commercial Union Assurance Company Limited</i> v <i>Waymark NO</i> 1995 (2) SA”</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p class="Default"><span style="font-size:12pt"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="color:black">[32]      The learned judge beautifully articulates the law in circumstances that are on all fours with the case at hand. In the same vein, in <i>Masuku </i>v <i>Delt Beverages<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="color:black">[8]</span></span></span></span></b></span></span></a> </i> the same court held that: </span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“… generally, proceedings against a non-existent entity are void <i>ab initio</i> and thus a nullity. However, where there is an entity which through some error or omission is not cited accurately, but where the entity is pointed out with sufficient accuracy, the summons would not be defective.”</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[33]      I could go on and on but the principle of law established by case law is clear. Where an existing entity is inadvertently misdescribed in judicial proceedings it is permissible to apply for correction of the anomaly in good faith provided that there is no irreparable prejudice to the other party.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[34]      It is common cause that taking a cue from laid down precedent the appellants successfully applied to the court <i>a quo</i> before the same judge for an amendment of the citation of the respondent’s name. He granted the order on 31 May 2018 under order number LC/MD/ORD/78/2018. It reads:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“it is ordered that:</span></span></span></span></span></p> <p style="margin-left:144px; text-align:justify; text-indent:-51.0pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">‘1.             the application to amend the citation of the respondent be and is hereby granted.</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">                     2.         each party is to bear its own costs.’”</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[35]      It is amazing that when the matter came up for hearing on the merits the same judge held that the proceedings before the arbitrator were a nullity because the appellants had sued a non-existent person. This was clearly a serious misdirection considering that the honourable judge was bound by his earlier order that had regularised the incorrect citation of the respondent.</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">WHETHER OR NOT THE APPELLANTS WERE PROPERLY BEFORE THE ARBITRAL TRIBUNAL</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[36]      It will be remembered that the arbitrator’s terms of reference were, “To determine whether the dismissal of E Mapondera and 60 others was lawful or not.” It is trite that an arbitrator is bound by the given terms of reference. He has no jurisdiction outside the terms of reference. Respondent’s objection sought to amend the terms of reference by limiting the terms of arbitration to E Mapondera to the exclusion of the 60 other employees. This the arbitrator could not do as it would amount to a violation of his terms of reference. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[37]      Placing reliance on the High Court cases of <i>Panganai and 20 Others v Kadir and Sons (Private) Limited<a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[9]</span></span></span></b></span></span></a></i> and<i> Prosser and 35 Others v Ziscosteel Company Limited<a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[10]</span></span></span></b></span></span></a>, </i>the learned judge <i>a quo</i> held that apart from E Mapondera the other 60 employees were not properly before the arbitrator. He reasoned that this was because the arbitrator had not been provided with a list of their names and they had not filed affidavits professing jointer to the arbitral proceedings.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[38]      It is rather ironic if not irrational that the respondent sought validation of dismissals that were carried out in the name of a non-existent person styled Freda Rebecca Gold Mine which it disowns. It was therefore a serious misdirection that after holding that the proceedings before the arbitrator were a nullity, the learned judge proceeded to determine the appeal on the merits. This was despite his ruling that there was no respondent before him. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[39]      What escaped the learned judge <i>a quo’s</i> attention is that the two precedents he relied upon in para 33 above were determined by the High Court in terms of the High Court Rules which are not strictly applicable to arbitration proceedings in terms of the Act. Again the learned judge failed to distinguish arbitral proceedings from trial proceedings in a court of law. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[40]      Conscious of his obligation to determine the complaint of the 60 other employees by reference, the arbitrator properly sought and obtained clarification on the identities of these other employees. That clarification was communicated to the respondent thereby giving it an opportunity to be heard on the authenticity of the list of names provided. There was therefore no prejudice to the respondent, real or imagined. In my view the arbitrator did not  misdirect  himself in any way as that was the  correct  thing to do to facilitate the proper discharge of his mandate in terms of the reference. Thus, again, the learned judge <i>a quo</i> misdirected himself and fell into error by holding that the other 60 appellants were not properly before the arbitrator.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[41]      Having come to the conclusion that the 60 other employees were not properly before the arbitrator, it was remiss of the learned judge <i>a quo </i>to proceed to deal with the merits of the appeal before him. He again erred in this respect. The proceedings beyond that finding were therefore a legal nullity. They cannot stand in light of the gross misdirection by the learned judge <i>a quo.</i></span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">WHETHER OR NOT IT WAS PROPER FOR THE ARBITRAL TRIBUNAL TO ORDER REINSTATEMENT OF THE APPELLANTS WITHOUT AN ALTERNATIVE OF PAYMENT OF DAMAGES IN LIEU OF REINSTATEMENT</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[42]      In view of the finding that the proceedings pertaining to the merits of the case were a legal nullity, it shall not be necessary to determine the above issue.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">DISPOSAL</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[43]      For the foregoing findings of fact and law, I hold that both the appellants and the respondents were properly cited and lawfully appeared before the arbitrator. The court <i>a quo</i> fell into error and misdirected itself by nullifying the proceedings before the arbitrator without any legal basis. The court <i>a quo</i> therefore ought to have dismissed both objections <i>in limine</i> and proceeded to hear and determine the appeal on the merits. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[44]      In the result it shall be necessary to reverse the court <i>a quo’s</i> judgment and order a rehearing of the appeal before a different judge as the judge <i>a quo’s </i>views appear to have been clouded by his earlier faulty findings of fact and law.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[45]      Costs follow the result in respect of the appeal whereas costs of the objection <i>in limine</i> shall be in the cause.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[46]      It is accordingly ordered that:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">1.            The appeal be and is hereby allowed with costs being costs in the cause.</span></span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">2.            The judgment of the court <i>a quo</i> be and is hereby set aside and substituted with the following:</span></span></span></span></span></span></p> <p style="margin-left:113px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“(a)    The preliminary points raised by the appellant relating to its miscitation be and is hereby dismissed.</span></span></span></span></span></p> <p style="margin-left:113px; text-align:justify; text-indent:-21.25pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(b)   The preliminary point raised by the appellant relating to the proper citation of the 2<sup>nd</sup> to the 60<sup>th</sup> respondents be and is hereby dismissed. The 2<sup>nd</sup> to 60<sup>th</sup> Respondents are hereby held to be properly before the court.”</span></span></span></span></span></p> <p style="margin-left:113px; text-align:justify; text-indent:-21.25pt"> </p> <p style="margin-left:96px; text-align:justify; text-indent:-36.0pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">3.         The court <i>a quo’s</i> determination on the merits of the appeal before it be and is hereby quashed and set aside </span></span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-36.0pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">4.         The matter be and is hereby remitted to the court <i>a quo</i> for a hearing <i>de novo</i> of the appeal before a different judge.”</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif">            </span></span></span></p> <p style="margin-left:48px; text-align:justify; text-indent:20.7pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">MAVANGIRA JA</span></span></span></b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">                     I agree</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="margin-left:48px; text-align:justify; text-indent:20.7pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">CHITAKUNYE JA</span></span></span></b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">                   I agree</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">Dube, Manikai &amp; Hwacha, </span></span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">appellant’s legal practitioners</span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">Gill, Godlonton &amp; Gerrans, </span></span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">respondent’s legal practitioners</span></span></span></span></span></span></p> <div>  <hr align="left" size="1" width="33%" /><div id="ftn1"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[1]</span></span></span></span></span></a> Page 165 of the record</span></span></p> </div> <div id="ftn2"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[2]</span></span></span></span></span></a> 1999 (1_ ZLR 220 (S)</span></span></p> </div> <div id="ftn3"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[3]</span></span></span></span></span></a> SC 88/20</span></span></p> </div> <div id="ftn4"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[4]</span></span></span></span></span></a> 1996 (2) ZLR 246 (H)</span></span></p> </div> <div id="ftn5"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[5]</span></span></span></span></span></a> SC 40/17</span></span></p> </div> <div id="ftn6"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[6]</span></span></span></span></span></a> 2005 (3) SA 39 (N)</span></span></p> </div> <div id="ftn7"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[7]</span></span></span></span></span></a> HH 775/15</span></span></p> </div> <div id="ftn8"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[8]</span></span></span></span></span></a> 2012 (2) Z LR 112 (H)</span></span></p> </div> <div id="ftn9"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[9]</span></span></span></span></span></a> HH – 26 - 95</span></span></p> </div> <div id="ftn10"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[10]</span></span></span></span></span></a> HH – 201 - 93</span></span></p> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-d7c588b60752f3c8d73f741f590924818bdf11cb4a21d452d7025b09f55793ad"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p align="right" style="text-align:right"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">Judgment No. SC 81/22</span></b></span></span></span></p> <p align="right" style="text-align:right"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">Case No. SC 565/19</span></b></span></span></span></p> <p align="right" style="text-align:right"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">Ref Case No. LC/H/82/11</span></b></span></span></span></p> <p> </p> <p> </p> <p><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><u><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">REPORTABLE</span></span></span></u></b><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">        (67)</span></span></span></b></span></span></span></p> <p align="center" style="text-align:center"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">EDMORE     MAPONDERA     AND     55     OTHERS</span></span></b></span></span></span></p> <p align="center" style="text-align:center"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">v</span></span></b></span></span></span></p> <p align="center" style="text-align:center"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">FREDA     REBECCA     GOLD     MINE     HOLDINGS     LIMITED</span></span></span></b></span></span></span></p> <p align="center" style="text-align:center"> </p> <p><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">SUPREME COURT OF ZIMBABWE </span></span></span></b></span></span></span></p> <p><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">MAVANGIRA JA, BHUNU JA &amp; CHITAKUNYE JA</span></span></span></b></span></span></span></p> <p><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">HARARE: 3 JULY 2021 AND 14 JULY 2022</span></span></span></b></span></span></span></p> <p> </p> <p> </p> <p> </p> <p><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">A. K. Maguchu, </span></span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">for the appellants</span></span></span></span></span></span></p> <p><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">T. Mpofu, </span></span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">for the respondent</span></span></span></span></span></span></p> <p> </p> <p> </p> <p> </p> <p><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">BHUNU JA:</span></span></span></b></span></span></span></p> <p><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">INTRODUCTION</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[1]        This is a partial appeal against the judgment of the Labour Court, (the court <i>a quo)</i> LC/H/2/19 dated 7 February 2019. The appeal is against the court <i>a quo’s</i> ruling on the question of citation of the parties and the arbitrator’s failure to award damages as an alternative to reinstatement.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[2]        The appeal was initially set-down for hearing on 11 September 2020 whereupon it was removed from the roll by consent of the parties to consider placing it before a full bench comprising a panel of 5 judges in terms of s 3 of the Supreme Court Act [<i>Chapter 7:13</i>].</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[3]        Upon due consideration of the nature and complexity of the appeal, the learned presiding judge  determined that there was no need to set up a full bench comprising 5 judges to deliberate over the appeal as it was eminently capable of resolution by a three panel bench as previously constituted. The appeal was then set down for hearing before the same panel of judges on 16 June 2021.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">BRIEF SUMMARY OF THE CASE</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[4]        The 56 appellants were employed by the respondent Freda Rebecca Mine Holdings Limited in various capacities at its mine in Bindura. Owing to virulent economic hardships at the time, the respondent ceased its mining operations sometime in 2008 without terminating the appellants’ respective contracts of employment.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[5]        Sometime in 2009 the respondent sought to resuscitate its mining operations. In doing so it unilaterally sought to reengage the appellants on inferior contracts different from those obtaining as at the time it ceased operations in 2008. A dispute then arose concerning the appropriate terms of employment upon resumption of mining operations  </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[6]        Following failure to resolve the dispute the respondent arbitrarily wrote to the appellants terminating their original contracts of employment. The termination letters were written on a standard letterhead bearing the name <b>FREDA REBECCA GOLD MINE. </b>The letters were signed by one T Chivonivoni who designated himself/herself as the <b>GENERAL MANAGER- FREDA REBECCA GOLD MINE. </b></span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[7]        Dissatisfied by the turn of events, the appellants took the dispute to the designated agent. The designated agent referred the dispute to conciliation. Upon failure of the conciliation process the conciliator issued a certificate of no settlement and completed a Reference to Arbitration on a standard form in which he designated the parties as, <b><i>“Freda Rebecca Mine alleged unfair labour practice of E Mapondera and 60 others</i></b><i>”</i><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[1]</span></span></span></span></span></a>. The reference form is dated 12 May 2010. It is common cause that the proper citation of the respondent as a party to legal proceedings ought to have been <b>Freda Rebecca Gold Mine Holdings Limited.   </b></span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">TERMS OF REFERENCE</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[8]        The arbitrator’s terms of reference were, “To determine whether the dismissal of E. Mapondera and 60 others was lawful or not.”</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[9]        At the hearing before the arbitrator the respondent took the preliminary objection that apart from Edmond Mapondera the rest of the remaining appellants had no <i>locus standi</i> because their names had not been listed as claimants and E Mapondera was not authorised to represent them.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[10]      Counsel for the appellants argued that the respondent had always been aware that the case involved 61 employees whose identities had not been placed in issue at conciliation stage. It was only at the arbitration stage that the respondent belatedly sought to make it an issue. During the course of the arbitration proceedings, the arbitrator was then provided with a list of the concerned employees comprising a total of 58 claimants. The list of the claimants who were party to the proceedings was availed to the respondent</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[11]      The arbitrator dismissed the objection <i>in limine</i> on the ground that the appellants had a real and substantial interest in the matter and that right from the initiation of the legal proceedings the respondent knew the identity of its adversaries. Having dismissed the preliminary objection, the arbitrator proceeded to make an award in favour of E Mapondera and 57 others on 12 January 2011.  The award was couched in the following terms:</span></span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“1.          That the claimants are hereby reinstated to their positions without loss of salary and benefits with effect from the date of unlawful dismissal.</span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">2.            Each party to meet its own costs.”</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[12]      Dissatisfied with the arbitral award, the respondent appealed to the court<i> a quo</i> with partial success.  It took the following 4 grounds on appeal:</span></span></span></span></span></span></p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“1.     The Honourable arbitrator unprocedurally accepted evidence submitted by the claimants subsequent to the arbitration hearing in respect of the purported hearing in respect of the purported identity of the innominate (sic) 60 other claimants who had not been included by name in the original claim.</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">2.       The Honourable arbitrator fundamentally misdirected himself in finding that since the alleged 60 other employees had a substantial interest in the matter they did not need to be identified and to be made parties in     arbitration proceedings before him. The fact that the employees have any kind of interest in the matter did not dispense with the entitlement of the appellant to know who the said appellants were at the commencement and during the course of the proceedings. The production of the names of the employees subsequent to the hearing and without an opportunity for the appellant to challenge the accuracy of the names and the positions so stated for the employees violated the appellant’s right to a fair hearing before an independent and impartial tribunal. </span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">3.       The Honourable Arbitrator fundamentally misdirected himself in failing to find that the contracts of employment for the said employees, E           Mapondera &amp; 60 Others had terminated by operation of law and the appellant could only re-engage the employees in terms of new contracts of employment. The said former employees having refused to sign new contracts of employment, the appellant lawfully confirmed the termination of their contracts of employment by operation of law on the 5<sup>th</sup> of March 2010. </span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">4.       The Honourable arbitrator fundamentally misdirected himself in ordering the reinstatement of E Mapondera &amp; 60 other employees without affording the Appellant an opportunity to pay damages in lieu of reinstatement. The order of reinstatement without the alternative for the payment of damages is not consistent with the ordinary rules of the law of contract and the specific circumstances of the appellant”</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">THE RELIEF SOUGHT</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[13]      On the basis of the above grounds of appeal the appellant sought the following relief:</span></span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“(i)         That the claimant’s claim be and is hereby dismissed.</span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(ii)          Alternatively that in the event that the Honourable court finds that the contracts of employment for the Respondents were not lawfully terminated, that the Appellant is hereby directed to pay the Respondents damages in lieu (sic) of reinstatement.</span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">(iii)         The Respondents shall pay the costs of suit.”</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[14]      Upon consideration of the facts and the law the court <i>a quo</i> found that the arbitration proceedings were a nullity at law because the claimants had cited a non-existent person and that the 2<sup>nd</sup> to 60 employees were not a party to the arbitration proceedings.</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[15]      It also found that the arbitrator had no discretion to award reinstatement without an alternative of payment of damages for unlawful dismissal. It therefore ordered as follows: </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“It is accordingly ordered that-</span></span></span></span></span></p> <ol><li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The appeal be and is hereby allowed on grounds 1, 2, 4 and 5. </span></span></span></span></span></li> <li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The appeal falls on ground of appeal 3.</span></span></span></span></span></li> <li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Overly the appeal succeeds as the proceedings were a nullity due to wrong identity of the employer.</span></span></span></span></span></li> <li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">Each party to bear its costs.”</span></span></span></span></span></span></li> </ol><p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[16]      Aggrieved by the above order the appellants appealed to this Court challenging the court <i>a quo’s </i>order on the following grounds:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“GROUNDS OF APPEAL</span></span></b></span></span></span></p> <ol><li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The court <i>a quo</i> erred at law in finding that the citation of the respondent through its trade name “Freda Rebecca Mine” was such an irregularity whose effect rendered the entire proceedings a nullity.</span></span></span></span></span></li> </ol><p style="margin-left:12px; text-align:justify"> </p> <ol start="2"><li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The court erred at law in finding that 2<sup>nd</sup> to 61<sup>st</sup> appellants were not properly cited before the Arbitrator and that the extent of the impropriety was such that they were all not party to the arbitration proceedings.</span></span></span></span></span></li> </ol><p style="margin-left:12px; text-align:justify"> </p> <ol start="3"><li style="margin-left:22px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The court <i>a quo</i> erred at law in finding that the Arbitrator has no power to order an employer to reinstate an unlawfully dismissed employee without giving the same employer the option to pay          damages <i>in lieu</i> of reinstatement to the employee. “</span></span></span></span></span></li> </ol><p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[17]      On the basis of the above grounds of appeal, the appellants prayed for the following relief:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">1.            That the appeal succeeds with costs </span></span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">2.            That the judgment of the court <i>a quo</i> is partially overturned and the order substituted with the following:</span></span></span></span></span></span></p> <p style="margin-left:123px; text-align:justify; text-indent:-35.45pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“(a)      The preliminary point raised by the Appellant relating to its miscitation be and is hereby dismissed.</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:113px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(b)     The preliminary point raised by the Appellant relating to the proper citation of the 2<sup>nd</sup> to the 61<sup>st</sup> Respondents be and is hereby dismissed. The 2<sup>nd</sup> to 61<sup>st</sup> Respondents are hereby held to be properly before the court.</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:113px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(c)     The appeal be and is hereby dismissed with costs and the arbitration award be and is hereby upheld.”</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">ISSUES FOR DETERMINATION</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[18]      The grounds of appeal raise the following three cardinal issues for determination: </span></span></span></span></span></span></p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">1.       Whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.</span></span></span></span></span></span></p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">2.       Whether or not the appellants were properly before the Arbitral Tribunal.</span></span></span></span></span></span></p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">3.       Whether or not it was proper for the Arbitral Tribunal to order reinstatement of the appellants without an alternative of payment of damages <i>in lieu</i> of reinstatement.</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">ANALYSIS AND DETERMINATION OF THE ISSUES </span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[19]      It is pertinent to note at this juncture that the judgment appealed against in this case is to a large extent grounded on legal technicalities. A lot of industry has been expended by learned counsel in placing reliance on procedural legal technicalities that are best suited for courts of law rather than arbitral tribunals. It is trite that the object of arbitral tribunals is to do simple justice for the common person without being shackled by legal technicalities and formalities pertaining to an ordinary court of law. To this end in arbitration the rules of procedure are often relaxed and the arbitrator has a wide discretion provided that justice can be attained without doing violence to the basic tenets of natural justice. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[20]      Likewise, s 90A of the Labour Act [<i>Chapter 28:01</i>] is meant to unshackle the court <i>a quo</i> from the vice grip of rigid legal rules, formality and technicalities. It provides as follows:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“<b>90A Procedure and evidence in the Labour Court</b></span></span></span></span></span></span></p> <ol><li style="margin-left:36px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The Labour Court shall not be bound by the strict rules of evidence, and the court may ascertain any relevant fact by any means which the presiding officer thinks fit and which is not unfair or unjust to either party.</span></span></span></span></span></span></li> </ol><p style="margin-left:86px; text-align:justify"> </p> <ol start="2"><li style="margin-left:36px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Evidence may be adduced orally or in writing in any proceedings in the Labour Court, at the discretion of the presiding officer.</span></span></span></span></span></span></li> </ol><p style="text-align:justify"> </p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(3) The parties or their representatives to any proceedings in the Labour Court shall be entitled to question or cross-examine each other or any witness.</span></span></span></span></span></span></p> <p style="margin-left:86px; text-align:justify; text-indent:-36.0pt"> </p> <p style="margin-left:76px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(4)     It shall be the responsibilities of the presiding officer to ascertain the facts in any proceedings in the Labour Court, and for that purpose he or she may—</span></span></span></span></span></span></p> <ol style="list-style-type:lower-alpha"><li style="margin-left:111px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">call any party or his or her representative;</span></span></span></span></span></span></li> </ol><p style="margin-left:151px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(<i>b</i>) question or cross-examine any party or his or her representative or witness; and</span></span></span></span></span></span></p> <p style="margin-left:151px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(<i>c</i>) put any question to a party or his or her representative or witness which is suggested to him or her by any party.”</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="text-autospace:none"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[21]      It is self-evident that s 90A of the Act distinguishes ordinary courts of law from the Labour Court as a special court. The law maker therefore saw it fit to confer the court <i>a quo</i> with a wider discretion than that obtaining in the ordinary courts of law in order to do simple industrial justice.  </span></span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"> </span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[22]      Because of their legal training and the involvement of lawyers, Labour Court judges often stray into the morass of legal jargon and technicalities much to the bewilderment of the unsophisticated litigants. This unwelcome tendency has the undesirable effect of mystifying industrial legal proceedings thereby clouding the dispensation of industrial justice. It therefore acts as a barrier to accessing industrial justice. This prompted McNALLY JA in <i>Dalny Mine v Banda<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[2]</span></span></span></b></span></span></a></i> to remark that:</span></span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this I do not mean that such irregularities should be ignored. I mean that    such irregularities should be put right.”</span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"> </p> <p style="margin-left:38px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[23]      In <i>Edmore Taperesu Mazambani v International Trading Company (Private) Limited and Anor</i><a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[3]</span></span></span></span></span></a> MATHONSI JA had occasion to make similar remarks when he said:</span></span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities.”</span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[24]      It is therefore clear from the authorities that the primary function of the court <i>a quo</i> is to do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law are beginning to mellow and drift towards the idea of correction of simple procedural errors in order to do real and substantial justice.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[25]      When interpreting statutes and codes of conduct, the court <i>a quo</i> should endeavour to give a broad liberal interpretation that is not embroiled in flimsy legal technicalities in order to achieve social justice based on equitable labour standards. On that score, I now proceed to determine whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">WHETHER OR NOT THE ALLEGED IMPROPER CITATION OF THE RESPONDENT RENDERED THE ENTIRE PROCEEDINGS A NULLITY</span></span></span></b></span></span></span></p> <p style="margin-top:16px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[26]      Generally speaking, it is undisputable and a matter of trite elementary law that one cannot sue a non-existent person. In the leading case of <i>Gariya Safaris (Pvt) Ltd v van Wyk<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[4]</span></span></span></b></span></span></a> </i>the<i> </i>High Court had occasion to remark that:</span></span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void <i>ab initio.”</i></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[27]      That proposition of law was cited with approval by this Court in <i>Fadzai John v Delta Beverages<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[5]</span></span></span></b></span></span></a></i> and a host of other cases cited by the respondent from both local and foreign jurisdictions. It is thus settled law and a matter of common sense that one cannot sue a non-existent person. </span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[28]      The main distinguishing feature in this case is that arbitral proceedings are different from trial proceedings in courts of law. Sight should therefore not be lost that trial proceedings in a court of law are commenced by summons drafted by the plaintiff. On the other hand arbitral proceedings are commenced by a reference drafted by the conciliator in terms of the Act. The claimant has no control over the drafting of the reference to arbitration whereas the plaintiff has full control over the drafting of the summons. It would therefore seem unfair and unjust to penalise the claimant for the sins of the conciliator in crafting the reference. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[29]      Counsel for the appellants further argued that where there is a person who actually exists who is sued in their colloquial, nickname or some other informal name, an amendment is permissible to formalise or regularise the citation. For that proposition of law he placed reliance on the South African case of <i>Four Tower Investments (Pty) Ltd v Andre’s Motors<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[6]</span></span></span></b></span></span></a></i> among others. In that case, shortly before the hearing of the appeal it was discovered that in the summons and particulars of claim the plaintiff had been incorrectly cited and referred to as a company called <i>Four Tower Investments (Pty) Ltd</i> whereas it had been at all times a close corporation called <i>Four Tower Properties CC</i>. In the lease agreement which was the subject of the dispute between the parties it was also referred to as a company. The letting agent was responsible for the misdescription. Following an application for an amendment to regularize the citation the court held that under the circumstances an amendment was permissible.  The headnote reads:</span></span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“an application for an amendment would always be allowed  unless it was made <i>mala fide</i> or would cause prejudice to the other party which could not be compensated for by an award of costs or  by some other suitable order such as a postponement. (At 43H). </span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Held</span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">, further that there had been a gradual move from an overly formal approach and in line with this approach courts should be careful not to find prejudice where none really exists. (At 44I-J)</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i>         </i></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Held</span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif"> further, that the fact on its own that the citation or description of a party happened to be of a non-existent entity should not render the summons a nullity.</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Held </span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">further, that in the present case the citation of the plaintiff had been nothing more than a misdescription and the application for amendment had to be allowed. (At47F)”</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[30]      It is needless to say that the <i>Four Tower </i>case<i> supra</i> is on all fours with the instant case. The judgment is grounded on sound logic and meets the ends of justice between litigants.</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[31]      Back home, in <i>Muzenda v Emirates Airlines &amp; Others<a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[7]</span></span></span></b></span></span></a> </i>the Emirates Airlines had been misdescribed as Arab Airlines. In allowing the amendment to regularize the name, MATANDA MOYO J had this to say:</span></span></span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“I am of the view that the description of a party to a suit does not immutably determine the nature and identity of a party. The law reports are full with instances where the correct description of a party was allowed, in the absence of prejudice to the other party involved. This would be done after an application to amend. The plaintiff herein was not diligent. After being advised of the wrong citation of first defendant, all she had to do was apply for amendment. I would have granted such amendment as I am of the view that there was no prejudice to first defendant. However the court can only do so upon asking. The court cannot <i>mero motu </i>grant orders not sought. Without such amendment, the first defendant remains wrongly cited. See <i>ZFC Ltd</i> v <i>Taylor</i> 1999 (1) ZLR 308 and Order 20 r 132 and 134 of this court’s rules, <i>Commercial Union Assurance Company Limited</i> v <i>Waymark NO</i> 1995 (2) See <i>ZFC Ltd</i> v <i>Taylor</i> 1999 (1) ZLR 308 and Order 20 r 132 and 134 of this court’s rules, <i>Commercial Union Assurance Company Limited</i> v <i>Waymark NO</i> 1995 (2) SA”</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p class="Default"><span style="font-size:12pt"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="color:black">[32]      The learned judge beautifully articulates the law in circumstances that are on all fours with the case at hand. In the same vein, in <i>Masuku </i>v <i>Delt Beverages<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif"><span style="color:black">[8]</span></span></span></span></b></span></span></a> </i> the same court held that: </span></span></span></span></p> <p style="margin-left:38px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“… generally, proceedings against a non-existent entity are void <i>ab initio</i> and thus a nullity. However, where there is an entity which through some error or omission is not cited accurately, but where the entity is pointed out with sufficient accuracy, the summons would not be defective.”</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[33]      I could go on and on but the principle of law established by case law is clear. Where an existing entity is inadvertently misdescribed in judicial proceedings it is permissible to apply for correction of the anomaly in good faith provided that there is no irreparable prejudice to the other party.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[34]      It is common cause that taking a cue from laid down precedent the appellants successfully applied to the court <i>a quo</i> before the same judge for an amendment of the citation of the respondent’s name. He granted the order on 31 May 2018 under order number LC/MD/ORD/78/2018. It reads:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“it is ordered that:</span></span></span></span></span></p> <p style="margin-left:144px; text-align:justify; text-indent:-51.0pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">‘1.             the application to amend the citation of the respondent be and is hereby granted.</span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">                     2.         each party is to bear its own costs.’”</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[35]      It is amazing that when the matter came up for hearing on the merits the same judge held that the proceedings before the arbitrator were a nullity because the appellants had sued a non-existent person. This was clearly a serious misdirection considering that the honourable judge was bound by his earlier order that had regularised the incorrect citation of the respondent.</span></span></span></span></span></span></p> <p style="margin-left:12px; text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">WHETHER OR NOT THE APPELLANTS WERE PROPERLY BEFORE THE ARBITRAL TRIBUNAL</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[36]      It will be remembered that the arbitrator’s terms of reference were, “To determine whether the dismissal of E Mapondera and 60 others was lawful or not.” It is trite that an arbitrator is bound by the given terms of reference. He has no jurisdiction outside the terms of reference. Respondent’s objection sought to amend the terms of reference by limiting the terms of arbitration to E Mapondera to the exclusion of the 60 other employees. This the arbitrator could not do as it would amount to a violation of his terms of reference. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[37]      Placing reliance on the High Court cases of <i>Panganai and 20 Others v Kadir and Sons (Private) Limited<a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[9]</span></span></span></b></span></span></a></i> and<i> Prosser and 35 Others v Ziscosteel Company Limited<a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[10]</span></span></span></b></span></span></a>, </i>the learned judge <i>a quo</i> held that apart from E Mapondera the other 60 employees were not properly before the arbitrator. He reasoned that this was because the arbitrator had not been provided with a list of their names and they had not filed affidavits professing jointer to the arbitral proceedings.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[38]      It is rather ironic if not irrational that the respondent sought validation of dismissals that were carried out in the name of a non-existent person styled Freda Rebecca Gold Mine which it disowns. It was therefore a serious misdirection that after holding that the proceedings before the arbitrator were a nullity, the learned judge proceeded to determine the appeal on the merits. This was despite his ruling that there was no respondent before him. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[39]      What escaped the learned judge <i>a quo’s</i> attention is that the two precedents he relied upon in para 33 above were determined by the High Court in terms of the High Court Rules which are not strictly applicable to arbitration proceedings in terms of the Act. Again the learned judge failed to distinguish arbitral proceedings from trial proceedings in a court of law. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[40]      Conscious of his obligation to determine the complaint of the 60 other employees by reference, the arbitrator properly sought and obtained clarification on the identities of these other employees. That clarification was communicated to the respondent thereby giving it an opportunity to be heard on the authenticity of the list of names provided. There was therefore no prejudice to the respondent, real or imagined. In my view the arbitrator did not  misdirect  himself in any way as that was the  correct  thing to do to facilitate the proper discharge of his mandate in terms of the reference. Thus, again, the learned judge <i>a quo</i> misdirected himself and fell into error by holding that the other 60 appellants were not properly before the arbitrator.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[41]      Having come to the conclusion that the 60 other employees were not properly before the arbitrator, it was remiss of the learned judge <i>a quo </i>to proceed to deal with the merits of the appeal before him. He again erred in this respect. The proceedings beyond that finding were therefore a legal nullity. They cannot stand in light of the gross misdirection by the learned judge <i>a quo.</i></span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">WHETHER OR NOT IT WAS PROPER FOR THE ARBITRAL TRIBUNAL TO ORDER REINSTATEMENT OF THE APPELLANTS WITHOUT AN ALTERNATIVE OF PAYMENT OF DAMAGES IN LIEU OF REINSTATEMENT</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[42]      In view of the finding that the proceedings pertaining to the merits of the case were a legal nullity, it shall not be necessary to determine the above issue.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">DISPOSAL</span></span></span></b></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[43]      For the foregoing findings of fact and law, I hold that both the appellants and the respondents were properly cited and lawfully appeared before the arbitrator. The court <i>a quo</i> fell into error and misdirected itself by nullifying the proceedings before the arbitrator without any legal basis. The court <i>a quo</i> therefore ought to have dismissed both objections <i>in limine</i> and proceeded to hear and determine the appeal on the merits. </span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[44]      In the result it shall be necessary to reverse the court <i>a quo’s</i> judgment and order a rehearing of the appeal before a different judge as the judge <i>a quo’s </i>views appear to have been clouded by his earlier faulty findings of fact and law.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[45]      Costs follow the result in respect of the appeal whereas costs of the objection <i>in limine</i> shall be in the cause.</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">[46]      It is accordingly ordered that:</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:1.0cm"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">1.            The appeal be and is hereby allowed with costs being costs in the cause.</span></span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-43.5pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">2.            The judgment of the court <i>a quo</i> be and is hereby set aside and substituted with the following:</span></span></span></span></span></span></p> <p style="margin-left:113px; text-align:justify; text-indent:-1.0cm"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">“(a)    The preliminary points raised by the appellant relating to its miscitation be and is hereby dismissed.</span></span></span></span></span></p> <p style="margin-left:113px; text-align:justify; text-indent:-21.25pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">(b)   The preliminary point raised by the appellant relating to the proper citation of the 2<sup>nd</sup> to the 60<sup>th</sup> respondents be and is hereby dismissed. The 2<sup>nd</sup> to 60<sup>th</sup> Respondents are hereby held to be properly before the court.”</span></span></span></span></span></p> <p style="margin-left:113px; text-align:justify; text-indent:-21.25pt"> </p> <p style="margin-left:96px; text-align:justify; text-indent:-36.0pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">3.         The court <i>a quo’s</i> determination on the merits of the appeal before it be and is hereby quashed and set aside </span></span></span></span></span></span></p> <p style="margin-left:96px; text-align:justify; text-indent:-36.0pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">4.         The matter be and is hereby remitted to the court <i>a quo</i> for a hearing <i>de novo</i> of the appeal before a different judge.”</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif">            </span></span></span></p> <p style="margin-left:48px; text-align:justify; text-indent:20.7pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">MAVANGIRA JA</span></span></span></b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">                     I agree</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="margin-left:48px; text-align:justify; text-indent:20.7pt"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">CHITAKUNYE JA</span></span></span></b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">                   I agree</span></span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">Dube, Manikai &amp; Hwacha, </span></span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">appellant’s legal practitioners</span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:200%"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">Gill, Godlonton &amp; Gerrans, </span></span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:200%"><span style="font-family:&quot;Times New Roman&quot;,serif">respondent’s legal practitioners</span></span></span></span></span></span></p> <div>  <hr align="left" size="1" width="33%" /><div id="ftn1"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[1]</span></span></span></span></span></a> Page 165 of the record</span></span></p> </div> <div id="ftn2"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[2]</span></span></span></span></span></a> 1999 (1_ ZLR 220 (S)</span></span></p> </div> <div id="ftn3"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[3]</span></span></span></span></span></a> SC 88/20</span></span></p> </div> <div id="ftn4"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[4]</span></span></span></span></span></a> 1996 (2) ZLR 246 (H)</span></span></p> </div> <div id="ftn5"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[5]</span></span></span></span></span></a> SC 40/17</span></span></p> </div> <div id="ftn6"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[6]</span></span></span></span></span></a> 2005 (3) SA 39 (N)</span></span></p> </div> <div id="ftn7"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[7]</span></span></span></span></span></a> HH 775/15</span></span></p> </div> <div id="ftn8"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[8]</span></span></span></span></span></a> 2012 (2) Z LR 112 (H)</span></span></p> </div> <div id="ftn9"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[9]</span></span></span></span></span></a> HH – 26 - 95</span></span></p> </div> <div id="ftn10"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[10]</span></span></span></span></span></a> HH – 201 - 93</span></span></p> </div> </div></span></div></div> </div> </div> Mon, 25 Jul 2022 07:48:45 +0000 Sandra Muengwa 12536 at http://www.zimlii.org UNIFREIGHT LIMITED v MADEMBO (SC 6 of 2018, Civil Appeal SC 213 of 2015) [2015] ZWSC 6 (31 July 2015); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2015/6 <span class="field field--name-title field--type-string field--label-hidden">UNIFREIGHT LIMITED v MADEMBO (SC 6 of 2018, Civil Appeal SC 213 of 2015) [2015] ZWSC 6 (31 July 2015);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/1439" hreflang="en">Administrative Law</a></div> <div class="field__item"><a href="/taxonomy/term/1713" hreflang="en">Natural Justice</a></div> <div class="field__item"><a href="/taxonomy/term/2380" hreflang="x-default">rules of</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2103" hreflang="x-default">Disciplinary proceedings</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2015/6/2015-zwsc-6.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=39760">2015-zwsc-6.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2015/6/2015-zwsc-6.pdf" type="application/pdf; length=202912">2015-zwsc-6.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>DISTRIBUTABLE</strong><strong>   (13)</strong></p> <p> </p> <p><strong>UNIFREIGHT     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>LIGHTON     MADEMBO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA; GUVAVA JA &amp; MAVANGIRA JA</strong></p> <p><strong>HARARE: 31 JULY, 2015</strong></p> <p><em>A. Rukawo</em>, for the appellant</p> <p>N.S. <em>Chidzanga</em>, for the respondent</p> <p> </p> <p><strong>GUVAVA JA</strong>:    This is an appeal against a decision of the Labour Court judgment number LC/H/122/2012 dated 17 August 2012.   After hearing arguments from both counsel the appeal was dismissed with costs. It was indicated that the reasons for this decision would follow in due course. These are they.</p> <p>The brief facts which gave rise to this matter may be summarized as follows:</p> <p>The respondent was employed by the appellant as a truck driver. His duties included delivering bulk fuel to various service stations. On 8 September 2010 the respondent made a delivery to Cargill Chegutu.  Upon arrival at the premises he had a physical altercation with a local tout. The manager of Cargill reported the incident to the police and the tout was arrested. Upon being interviewed by the police, the tout made a statement claiming that on a previous occasion, the respondent stopped at an off-route location and offered to sell two “containers” of diesel to the tout for $60.00. The tout offered to pay $30.00 which the respondent rejected. The respondent denied the allegation and stated that he had in fact been robbed of a container of diesel by the tout.</p> <p>When the appellant was informed by the police on the allegations made by the tout it suspended the respondent from 15 September 2010 with pay until Monday 20 September 2010 whilst conducting investigations into the matter.  On 18 September 2010, the Contracts Supervisor wrote a report of the incident to the Personnel Manager of the appellant indicating that a report against the conduct of the respondent had been filed by Total Zimbabwe who is a customer of the appellant and to whom Cargill Chegutu is a client. The Contracts Supervisor, on the basis of this report, requested that the personnel department arrange for the respondent to be charged with misconduct arising from the incident.</p> <p>Following the above report the respondent was charged with the following acts of misconduct:</p> <ol><li>Contravening Part III Section 3.3.5 as read with Part VII 7.3 Subsection 7.33 (d) of the Unifreight Group Code, that is, violent and disorderly behaviour.</li> <li>Contravening Part III Section 3.3.5 (ix) as read with Part VII, Section 7.4 subsection 7.4.4 (d) of the same Code of Conduct, that is any act or attempted act of dishonesty against the company or any of its customers whether a criminal conviction is pursued or not.</li> </ol><p>The respondent was summoned to attend a disciplinary hearing scheduled to be held on 24 September 2010. The letter advised the respondent that he had the right to be represented by a workers committee member or fellow worker at the proceedings.</p> <p>At the hearing the respondent denied the charges and explained that on 25 August 2010 the tout had approached him and asked to buy fuel from him. He advised the tout that he did not sell fuel and he should buy it from a service station. He went on to ask this individual where he could buy affordable potatoes and he was directed to a place a few kilometres outside Chegutu. He admits that he went off route in search of these potatoes. When he pulled off the road, he crossed the road to buy the potatoes. As he was buying the potatoes he noticed a small truck with four men in it parked behind his truck. He stated that some of them disappeared behind his truck.  He crossed over to investigate and realized that they were syphoning diesel from his truck. He stated that a scuffle ensued but the men got away with some fuel. The respondent admitted that he did not report this incident as he reasoned that the fuel syphoned was negligible. The respondent explained that when he made the delivery on 8 September 2010 he recognized the tout as one of the four men involved in the incident of 25 August, 2010 and he decided to confront him.</p> <p>The disciplinary committee disbelieved the respondent and found him guilty as charged. It reasoned as follows:</p> <ol><li>He failed to report the incident of 25 August 2010 which was found to be tantamount to contributing to fuel loss and or theft;</li> <li>The company suffered substantial prejudice by loss of business as a result of his violent and disorderly behavior as it lost the contract with Cargill.</li> <li>The respondent did not appear to show any remorse.</li> </ol><p>The disciplinary committee decided that the appropriate penalty was to dismiss the respondent as a deterrent to any other would be perpetrators in their employ. He was dismissed with immediate effect on 24 September 2010. The respondent appealed this decision to the Executive Director of Personnel and Training on 28 September 2010. In his appeal he submitted that he was under the assumption that the hearing was merely a discussion and not a formal hearing. He stated that he queried why there were no representatives from the workers committee present during the hearing in accordance with their code. He informed the appeals committee that when he queried the anomaly he was advised that it was simply a discussion not a hearing. He stated that he was therefore surprised to receive a letter of termination of employment.</p> <p>The Executive Director of Personnel and Training analyzed the appeal and concluded that the determination of the committee could not be faulted. As to composition of the committee it was brought to his attention that the Works Council minutes of 23 September 2010 discussed the threat by the Logistics Workers Committee to boycott all disciplinary hearings on allegations that the employer was perpetually inclined to dismiss employees. This difficulty remained ongoing at the time the respondent’s hearing was held and the employer made the decision to proceed with hearings and not be held to ransom by the Workers Committee. The Executive Director also took into account that the respondent was informed of this predicament at the hearing and that he gave his consent to proceed. It was also noted that the letter calling the respondent to the hearing advised him that he would be well within his rights to attend with any other worker if he was so inclined. He was also advised that he could seek legal representation. Having taken note of all these factors the appeal was dismissed on 7 October 2010.</p> <p>                        Dissatisfied with the result, the respondent appealed to the Labour Court alleging gross procedural irregularities which he believed should result in the setting aside of the decision of the disciplinary hearings. He argued that:</p> <ol><li>The employer failed to produce the record of proceedings</li> <li>That there was no evidence to support claims of the boycott members of the Workers Committee as alleged by the Executive Director, neither was there evidence to show that members of the Workers Committee were notified and invited to attend which invitation they declined</li> <li>In the absence of a representative of the Workers Committee the hearing was not properly constituted</li> <li>The hearing was not properly constituted as the Chairman was also the complainant and also served as the minute taker.</li> </ol><p>The court <em>a quo</em> in its judgment was dissatisfied with the failure by the disciplinary committee to transcribe proper minutes and the double role performed by the Chairman which it held compromised his impartiality as he had to be both complainant and adjudicator. On this basis the court <em>a quo</em> ordered the remittal of the matter to be heard <em>de novo</em> by the disciplinary committee in a procedurally correct manner within thirty days of the order and, pending such hearing the respondent was to revert to “suspension with pay” basis.</p> <p>The appellant was aggrieved by the judgment of the court <em>a quo</em> and appealed against its decision on the following grounds:</p> <ol><li>The Labour Court grossly misdirected itself on the facts in finding that there were gross procedural irregularities in the disciplinary proceedings</li> <li>The Labour Court erred in finding that by doubling up as complainant and Chairman, the impartiality of the Chairman became compromised when in fact the Chairman was never the complainant</li> <li>The Labour Court erred in finding that members of the disciplinary committee were also the investigating officials</li> <li>The Labour Court erred in finding that the Chairman’s assumption of the role of secretary was an irregularity in procedure nullifying the disciplinary hearing</li> <li>The Labour Court grossly misdirected itself in ruling that there was an irregularity in procedure because the workers representatives had not been asked to provide a secretary at the hearing when in fact the workers representatives had boycotted the disciplinary hearing</li> </ol><p>In my view it is apparent from the above grounds of appeal that this appeal turns on one issue; that is, whether the procedural irregularities in the disciplinary hearing are so serious as to warrant the setting aside of the determination of the hearing committee.</p> <p>It cannot be denied that there were some irregularities during the disciplinary hearing. This is indeed accepted by the appellant. Although it is trite that not all irregularities result in the vitiating of disciplinary proceedings it must be shown that the irregularities resulted in prejudice. This point was well articulated in the case of <em>Nyahuma v Barclays Bank of Zimbabwe </em>SC 67/05 wherein the court held as follows:</p> <p>“…it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”</p> <p>In<em> casu</em>, it appears most of the procedural dictates of the Code governing the employment relationship between the parties were disregarded. There was a blatant disregard of the most basic of procedural requirements. No accurate minutes of the disciplinary hearing were kept by the appellant. The committee comprised of only two disciplinary officers, one of whom was the chairman and also posed questions raising the employers concerns. In essence, the Chairman’s role went beyond that of an inquisitorial authority and became a party to the proceedings.</p> <p>It is important to note that the Code that regulates the conduct between employer and employee operates as a contractual obligation which they both willingly entered into and is therefore binding. One of the parties cannot therefore arbitrarily, and to the prejudice of the other, decide not to comply with certain dictates of that contract.</p> <p>The double role undertaken by the Chairman as both chairman and complainant was in my view wholly inappropriate and not in line with the principles of natural justice. His impartiality could in these circumstances not be guaranteed. This is clearly apparent when one has regard to the accepted test for bias. The case of<em> City and Suburban Transport (Pvt) Ltd v Local Board Road Transportation Johannesburg </em>1932 WLD 100 sets out clearly the test for bias. It was held that:</p> <p>“the test [for bias] appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.” [My emphasis]</p> <p>This case makes it clear that the conduct of the appellant, in convening a hearing, must be transparent. Any reasonable person faced with the above facts would suspect that the chairman was biased. <em>In casu</em> the duplication of roles creates doubt with regard to impartiality in anyone’s mind and therefore a reasonable man could not find such an arrangement free from bias. The case of <em>Musarira v Anglo American Corporation</em> SC 53/05 states that once a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party. The Chairman cannot therefore operate in an employer appointed role and remain impartial as the adjudicator in the hearing.</p> <p>The Code mandates that a representative of the Workers Committee be present at all hearings, for substantive and procedural fairness, a disciplinary hearing ought to be properly constituted. In the case of <em>Madzitauswa v ZFC Ltd &amp; Anor</em> SC 73/15, GOWORA JA stated that:</p> <p>“The definition of disciplinary committee clearly envisages a body in which both the employer and the employees are represented …</p> <p>In any event, this court has time after time emphasised the need for flexibility in the conduct of disciplinary proceedings in which the overriding principle is that disciplinary tribunals must conduct an enquiry.  The rules of natural justice require no more than that the domestic tribunal acts according to common sense precepts of fairness.  See <em>Dulys Holdings v Chanaiwa</em> 2007 (2) ZLR 1 at 6A-B.” [My emphasis]</p> <p>A disciplinary committee must be comprised of representatives of the employer and the employees. This was not the case during the respondent’s hearing. This case also recognizes that certain liberties can be taken in conducting hearings. However, such flexibility must not operate against the rights of the employee to a fair and procedurally just hearing.  (See also <em>Chataira v ZESA</em> HH9/2000).  In my view, the facts of this case show that the respondent was clearly prejudiced by the irregularities.</p> <p>The appellant also invited this Court to set aside the decision of the court <em>a quo</em>, which was based on findings of fact. It is trite that for an appellate court to interfere with the judgment of a court <em>a quo</em> based on factual findings gross misdirection must be alleged and established. The case of <em>Hama v National Railways of Zimbabwe</em> 1996(1) ZLR 664 (S) states in this regard as follows:</p> <p>“In other words, the decision must have been irrational, in the sense of being outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion.” [My emphasis]</p> <p>This cannot be said of the decision of the court <em>a quo. </em> It cannot be said that the court <em>a quo</em> erred. In fact, the court <em>a quo</em> correctly applied the principles in <em>Dalny Mine v Banda</em> 1999(1) ZLR 220 which states that:</p> <p><strong>“</strong>As a general rule it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right. This can be done in one of two ways:</p> <ul><li>by remitting the matter for hearing <em>de novo</em> and in a procedurallycorrect manner;</li> <li>by the Tribunal hearing the evidence <em>de novo</em>.”</li> </ul><p>                        It is the finding of this Court that the court <em>a quo</em> therefore correctly remitted the appeal back to the disciplinary committee.</p> <p>                        Accordingly it was for the above reasons that the court found against the appellant.</p> <p>                        <strong>GOWORA JA:                      </strong>I agree</p> <p><strong>MAVANGIRA JA:               </strong>I agree</p> <p><em>Gwaunza &amp; Mapota, </em>appellant’s legal practitioners</p> <p><em>Mangwana &amp; Partners, </em>respondent’s legal practitioners</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-0ad27f3e05869c6a27a78d5639cc495102741b107b17836a72e25aa68e27632c"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>DISTRIBUTABLE</strong><strong>   (13)</strong></p> <p> </p> <p><strong>UNIFREIGHT     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>LIGHTON     MADEMBO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA; GUVAVA JA &amp; MAVANGIRA JA</strong></p> <p><strong>HARARE: 31 JULY, 2015</strong></p> <p><em>A. Rukawo</em>, for the appellant</p> <p>N.S. <em>Chidzanga</em>, for the respondent</p> <p> </p> <p><strong>GUVAVA JA</strong>:    This is an appeal against a decision of the Labour Court judgment number LC/H/122/2012 dated 17 August 2012.   After hearing arguments from both counsel the appeal was dismissed with costs. It was indicated that the reasons for this decision would follow in due course. These are they.</p> <p>The brief facts which gave rise to this matter may be summarized as follows:</p> <p>The respondent was employed by the appellant as a truck driver. His duties included delivering bulk fuel to various service stations. On 8 September 2010 the respondent made a delivery to Cargill Chegutu.  Upon arrival at the premises he had a physical altercation with a local tout. The manager of Cargill reported the incident to the police and the tout was arrested. Upon being interviewed by the police, the tout made a statement claiming that on a previous occasion, the respondent stopped at an off-route location and offered to sell two “containers” of diesel to the tout for $60.00. The tout offered to pay $30.00 which the respondent rejected. The respondent denied the allegation and stated that he had in fact been robbed of a container of diesel by the tout.</p> <p>When the appellant was informed by the police on the allegations made by the tout it suspended the respondent from 15 September 2010 with pay until Monday 20 September 2010 whilst conducting investigations into the matter.  On 18 September 2010, the Contracts Supervisor wrote a report of the incident to the Personnel Manager of the appellant indicating that a report against the conduct of the respondent had been filed by Total Zimbabwe who is a customer of the appellant and to whom Cargill Chegutu is a client. The Contracts Supervisor, on the basis of this report, requested that the personnel department arrange for the respondent to be charged with misconduct arising from the incident.</p> <p>Following the above report the respondent was charged with the following acts of misconduct:</p> <ol><li>Contravening Part III Section 3.3.5 as read with Part VII 7.3 Subsection 7.33 (d) of the Unifreight Group Code, that is, violent and disorderly behaviour.</li> <li>Contravening Part III Section 3.3.5 (ix) as read with Part VII, Section 7.4 subsection 7.4.4 (d) of the same Code of Conduct, that is any act or attempted act of dishonesty against the company or any of its customers whether a criminal conviction is pursued or not.</li> </ol><p>The respondent was summoned to attend a disciplinary hearing scheduled to be held on 24 September 2010. The letter advised the respondent that he had the right to be represented by a workers committee member or fellow worker at the proceedings.</p> <p>At the hearing the respondent denied the charges and explained that on 25 August 2010 the tout had approached him and asked to buy fuel from him. He advised the tout that he did not sell fuel and he should buy it from a service station. He went on to ask this individual where he could buy affordable potatoes and he was directed to a place a few kilometres outside Chegutu. He admits that he went off route in search of these potatoes. When he pulled off the road, he crossed the road to buy the potatoes. As he was buying the potatoes he noticed a small truck with four men in it parked behind his truck. He stated that some of them disappeared behind his truck.  He crossed over to investigate and realized that they were syphoning diesel from his truck. He stated that a scuffle ensued but the men got away with some fuel. The respondent admitted that he did not report this incident as he reasoned that the fuel syphoned was negligible. The respondent explained that when he made the delivery on 8 September 2010 he recognized the tout as one of the four men involved in the incident of 25 August, 2010 and he decided to confront him.</p> <p>The disciplinary committee disbelieved the respondent and found him guilty as charged. It reasoned as follows:</p> <ol><li>He failed to report the incident of 25 August 2010 which was found to be tantamount to contributing to fuel loss and or theft;</li> <li>The company suffered substantial prejudice by loss of business as a result of his violent and disorderly behavior as it lost the contract with Cargill.</li> <li>The respondent did not appear to show any remorse.</li> </ol><p>The disciplinary committee decided that the appropriate penalty was to dismiss the respondent as a deterrent to any other would be perpetrators in their employ. He was dismissed with immediate effect on 24 September 2010. The respondent appealed this decision to the Executive Director of Personnel and Training on 28 September 2010. In his appeal he submitted that he was under the assumption that the hearing was merely a discussion and not a formal hearing. He stated that he queried why there were no representatives from the workers committee present during the hearing in accordance with their code. He informed the appeals committee that when he queried the anomaly he was advised that it was simply a discussion not a hearing. He stated that he was therefore surprised to receive a letter of termination of employment.</p> <p>The Executive Director of Personnel and Training analyzed the appeal and concluded that the determination of the committee could not be faulted. As to composition of the committee it was brought to his attention that the Works Council minutes of 23 September 2010 discussed the threat by the Logistics Workers Committee to boycott all disciplinary hearings on allegations that the employer was perpetually inclined to dismiss employees. This difficulty remained ongoing at the time the respondent’s hearing was held and the employer made the decision to proceed with hearings and not be held to ransom by the Workers Committee. The Executive Director also took into account that the respondent was informed of this predicament at the hearing and that he gave his consent to proceed. It was also noted that the letter calling the respondent to the hearing advised him that he would be well within his rights to attend with any other worker if he was so inclined. He was also advised that he could seek legal representation. Having taken note of all these factors the appeal was dismissed on 7 October 2010.</p> <p>                        Dissatisfied with the result, the respondent appealed to the Labour Court alleging gross procedural irregularities which he believed should result in the setting aside of the decision of the disciplinary hearings. He argued that:</p> <ol><li>The employer failed to produce the record of proceedings</li> <li>That there was no evidence to support claims of the boycott members of the Workers Committee as alleged by the Executive Director, neither was there evidence to show that members of the Workers Committee were notified and invited to attend which invitation they declined</li> <li>In the absence of a representative of the Workers Committee the hearing was not properly constituted</li> <li>The hearing was not properly constituted as the Chairman was also the complainant and also served as the minute taker.</li> </ol><p>The court <em>a quo</em> in its judgment was dissatisfied with the failure by the disciplinary committee to transcribe proper minutes and the double role performed by the Chairman which it held compromised his impartiality as he had to be both complainant and adjudicator. On this basis the court <em>a quo</em> ordered the remittal of the matter to be heard <em>de novo</em> by the disciplinary committee in a procedurally correct manner within thirty days of the order and, pending such hearing the respondent was to revert to “suspension with pay” basis.</p> <p>The appellant was aggrieved by the judgment of the court <em>a quo</em> and appealed against its decision on the following grounds:</p> <ol><li>The Labour Court grossly misdirected itself on the facts in finding that there were gross procedural irregularities in the disciplinary proceedings</li> <li>The Labour Court erred in finding that by doubling up as complainant and Chairman, the impartiality of the Chairman became compromised when in fact the Chairman was never the complainant</li> <li>The Labour Court erred in finding that members of the disciplinary committee were also the investigating officials</li> <li>The Labour Court erred in finding that the Chairman’s assumption of the role of secretary was an irregularity in procedure nullifying the disciplinary hearing</li> <li>The Labour Court grossly misdirected itself in ruling that there was an irregularity in procedure because the workers representatives had not been asked to provide a secretary at the hearing when in fact the workers representatives had boycotted the disciplinary hearing</li> </ol><p>In my view it is apparent from the above grounds of appeal that this appeal turns on one issue; that is, whether the procedural irregularities in the disciplinary hearing are so serious as to warrant the setting aside of the determination of the hearing committee.</p> <p>It cannot be denied that there were some irregularities during the disciplinary hearing. This is indeed accepted by the appellant. Although it is trite that not all irregularities result in the vitiating of disciplinary proceedings it must be shown that the irregularities resulted in prejudice. This point was well articulated in the case of <em>Nyahuma v Barclays Bank of Zimbabwe </em>SC 67/05 wherein the court held as follows:</p> <p>“…it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”</p> <p>In<em> casu</em>, it appears most of the procedural dictates of the Code governing the employment relationship between the parties were disregarded. There was a blatant disregard of the most basic of procedural requirements. No accurate minutes of the disciplinary hearing were kept by the appellant. The committee comprised of only two disciplinary officers, one of whom was the chairman and also posed questions raising the employers concerns. In essence, the Chairman’s role went beyond that of an inquisitorial authority and became a party to the proceedings.</p> <p>It is important to note that the Code that regulates the conduct between employer and employee operates as a contractual obligation which they both willingly entered into and is therefore binding. One of the parties cannot therefore arbitrarily, and to the prejudice of the other, decide not to comply with certain dictates of that contract.</p> <p>The double role undertaken by the Chairman as both chairman and complainant was in my view wholly inappropriate and not in line with the principles of natural justice. His impartiality could in these circumstances not be guaranteed. This is clearly apparent when one has regard to the accepted test for bias. The case of<em> City and Suburban Transport (Pvt) Ltd v Local Board Road Transportation Johannesburg </em>1932 WLD 100 sets out clearly the test for bias. It was held that:</p> <p>“the test [for bias] appears to be whether the person challenged has so associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.” [My emphasis]</p> <p>This case makes it clear that the conduct of the appellant, in convening a hearing, must be transparent. Any reasonable person faced with the above facts would suspect that the chairman was biased. <em>In casu</em> the duplication of roles creates doubt with regard to impartiality in anyone’s mind and therefore a reasonable man could not find such an arrangement free from bias. The case of <em>Musarira v Anglo American Corporation</em> SC 53/05 states that once a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party. The Chairman cannot therefore operate in an employer appointed role and remain impartial as the adjudicator in the hearing.</p> <p>The Code mandates that a representative of the Workers Committee be present at all hearings, for substantive and procedural fairness, a disciplinary hearing ought to be properly constituted. In the case of <em>Madzitauswa v ZFC Ltd &amp; Anor</em> SC 73/15, GOWORA JA stated that:</p> <p>“The definition of disciplinary committee clearly envisages a body in which both the employer and the employees are represented …</p> <p>In any event, this court has time after time emphasised the need for flexibility in the conduct of disciplinary proceedings in which the overriding principle is that disciplinary tribunals must conduct an enquiry.  The rules of natural justice require no more than that the domestic tribunal acts according to common sense precepts of fairness.  See <em>Dulys Holdings v Chanaiwa</em> 2007 (2) ZLR 1 at 6A-B.” [My emphasis]</p> <p>A disciplinary committee must be comprised of representatives of the employer and the employees. This was not the case during the respondent’s hearing. This case also recognizes that certain liberties can be taken in conducting hearings. However, such flexibility must not operate against the rights of the employee to a fair and procedurally just hearing.  (See also <em>Chataira v ZESA</em> HH9/2000).  In my view, the facts of this case show that the respondent was clearly prejudiced by the irregularities.</p> <p>The appellant also invited this Court to set aside the decision of the court <em>a quo</em>, which was based on findings of fact. It is trite that for an appellate court to interfere with the judgment of a court <em>a quo</em> based on factual findings gross misdirection must be alleged and established. The case of <em>Hama v National Railways of Zimbabwe</em> 1996(1) ZLR 664 (S) states in this regard as follows:</p> <p>“In other words, the decision must have been irrational, in the sense of being outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion.” [My emphasis]</p> <p>This cannot be said of the decision of the court <em>a quo. </em> It cannot be said that the court <em>a quo</em> erred. In fact, the court <em>a quo</em> correctly applied the principles in <em>Dalny Mine v Banda</em> 1999(1) ZLR 220 which states that:</p> <p><strong>“</strong>As a general rule it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right. This can be done in one of two ways:</p> <ul><li>by remitting the matter for hearing <em>de novo</em> and in a procedurallycorrect manner;</li> <li>by the Tribunal hearing the evidence <em>de novo</em>.”</li> </ul><p>                        It is the finding of this Court that the court <em>a quo</em> therefore correctly remitted the appeal back to the disciplinary committee.</p> <p>                        Accordingly it was for the above reasons that the court found against the appellant.</p> <p>                        <strong>GOWORA JA:                      </strong>I agree</p> <p><strong>MAVANGIRA JA:               </strong>I agree</p> <p><em>Gwaunza &amp; Mapota, </em>appellant’s legal practitioners</p> <p><em>Mangwana &amp; Partners, </em>respondent’s legal practitioners</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:17 +0000 Anonymous 10085 at http://www.zimlii.org ZIMRA v Mudzimuwaona (SC 4 of 2018, Civil Appeal 176 of 2013) [2014] ZWSC 4 (28 July 2014); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2014/4 <span class="field field--name-title field--type-string field--label-hidden">ZIMRA v Mudzimuwaona (SC 4 of 2018, Civil Appeal 176 of 2013) [2014] ZWSC 4 (28 July 2014);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2125" hreflang="x-default">CONTRACT</a></div> <div class="field__item"><a href="/taxonomy/term/2377" hreflang="x-default">Termination</a></div> <div class="field__item"><a href="/taxonomy/term/2378" hreflang="x-default">fixed term contract</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2119" hreflang="x-default">Lawful dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2361" hreflang="x-default">Salaries and wages</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2014/4/2014-zwsc-4.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41108">2014-zwsc-4.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2014/4/2014-zwsc-4.pdf" type="application/pdf; length=131172">2014-zwsc-4.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>REPORTABLE</strong><strong>        (3)</strong></p> <p><strong>ZIMBABWE     REVENUE     AUTHORITY</strong></p> <p><strong>v</strong></p> <p><strong>CHESTER     MUDZIMUWAONA</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>CHIDYAUSIKU CJ, GOWORA JA &amp; MUTEMA AJA</strong></p> <p><strong>BULAWAYO, </strong>28 JULY 2014</p> <p><em>T. Magwaliba</em>, for the appellant                                                                                         </p> <p><em>C. Mucheche</em>, for the first respondent</p> <p><strong>                        GOWORA JA</strong>:  This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course. The following are the reasons for the order.</p> <p>                        The facts arising in this matter are that in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:</p> <p>“upon successful completion of the probation period the employment contract shall run for a further period of 24 (twenty-four) months after which the authority , may at its sole discretion offer you permanent employment on such terms and conditions as determined by it at the time.”</p> <p>                        The literal meaning of that clause is that the respondent’s contract was subject, first to the successful completion of the probation period and then would terminate at the end of 36 month. </p> <p>                        In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment. He was arraigned before a disciplinary committee and was found guilty of both charges. He was as a consequence dismissed from employment. He appealed to the appeals committee without success.</p> <p>                        The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court <em>a quo</em> ordered the appellant to reinstate the respondent without loss of salary or benefits and, in the event that reinstatement was no longer tenable, to pay damages in <em>lieu</em> of reinstatement. This decision was not appealed against. Instead, the parties decided to negotiate the <em>quantum</em> of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification. He claimed that when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee. The appellant opposed the quantification on the basis that the respondent was employed on a fixed term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract. The Labour Court ruled in favour of the respondent and ordered the appellant to pay:</p> <ul><li>US$ 19 740.16 as back-pay and benefits</li> <li>Twelve (12) months’ salary that the respondent would have earned in August 2011 minus US$150.00 earned by the respondent per month for a period of twelve months.</li> </ul><p>The appellant was aggrieved by the decision and with the leave of this court has appealed the order of the court <em>a quo</em>. It is criticized for the following reasons:</p> <ul><li> </li> </ul><p>-           failing to give proper weight to the fact that when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.</p> <ul><li> </li> <li> </li> </ul><p>-           failing to distinguish between a permanent employee and an employee on a fixed term contract in its quantification of damages, especially after finding that the respondent did not have a legitimate expectation to be offered permanent employment.</p> <ul><li> </li> </ul><p>-           in failing to deduct the US$150.00 earned by the respondent per month for a period of twelve (12) months from the total amount awarded as back pay and benefits.</p> <ul><li> </li> </ul><p>-           in rejecting the evidence of the appellant’s expert witness on the factual issues and accepting that of the respondent and his witness on unclear grounds.</p> <p>                        The respondent raised three preliminary objections to the appeal. The objections were respectively that, the notice of appeal did not state the correct date of judgment, the grounds of appeal were not clear and concise and, lastly, that the grounds of appeal did not raise questions of law. The respondent abandoned the first objection after conceding that the notice of appeal in point of fact reflected the correct date of judgment.</p> <p>                        The other two points were dismissed by the court.  Quite apart from the fact that in mounting the objections, the respondent sought to rely on the Supreme Court Rules, 1964 which are not applicable to appeals from the Labour Court, in attacking the grounds of appeal, the point that the grounds of appeal were not clear and concise had no merit. The respondent was unable to show to this court in what way the grounds of appeal were not clear and concise. The grounds set out by the appellant may have been inelegantly drafted but they articulate the basis upon which the appeal is founded.</p> <p>                        Regarding the point taken that the grounds of appeal were not on a question of law, the court was of the view that the point was improperly taken. The issue of what is a question of law has been addressed in a plethora of cases. See for example, <em>Muzuva v United Bottlers (Pvt) Ltd </em>1994 (1) ZLR 217 (S) and <em>Hama v National Railways of Zimbabwe </em>1996 (1) ZLR 664 (S).</p> <p>                        The respondent submitted that the appellant should have expressly stated in its grounds of appeal that the factual findings of the court <em>a quo</em> are gross as to amount to a question of law.  In <em>Reserve Bank of Zimbabwe v Granger and Anor</em> SC 34/01, MUCHECHETERE JA (as he then was), at page 5 to 6 of the cyclostyled judgment, said:</p> <p>“An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”</p> <p>These remarks were qualified by GARWE JA in <em>Zvokusekwa v Biita Rural District Council</em> SC-44-15 as follows:</p> <p>“In my view, the remarks made in Granger’s case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.  One must, I think, be guided by the substance of the grounds of appeal and not the form.  Legal practitioners often exhibit different styles in formulating such grounds.  What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.” </p> <p>                        The essential principle outlined above is that regard must be had to the substance of a ground of appeal as opposed to its form in order to determine whether it raises a question of law. The court was of the view that the grounds of appeal raised by the appellant in essence attacked the alleged failure by the court <em>a quo</em> to consider relevant facts which failure led to an error at law. The grounds complied with the requirements of s 92F of the Labour Act [<em>Chapter 28:01</em>] and therefore the point <em>in limine</em> was dismissed.</p> <p>                        On the merits the issues which are pertinent in the determination of the appeal are the following:</p> <ul><li>Whether or not the court <em>a quo</em> correctly applied the principles on fixed term contracts;</li> </ul><p>(b) Whether or not the respondent had a legitimate expectation of being offered employment on a permanent basis;</p> <ul><li>Whether or not the court drew a distinction between a permanent employee and one on a fixed term contract in its quantification of damages; and</li> <li>Whether or not the court grossly misdirected itself in respect of the factual findings it arrived at on the evidence presented.</li> </ul><p>                        It was the appellant’s contention that the court <em>a quo</em> erred in law by quantifying damages as if the respondent was a permanent employee prior to his dismissal, yet it is clear from the contract of employment that he was on a fixed term contract. One of the first categoric statements on the assessment of damages for unlawful dismissal was enunciated by GUBBAY CJ in <em>Gauntlet Security Services v Leonard</em> 1997 (1) ZLR 583 (S) in which he said:</p> <p>“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his Contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.”</p> <p>The remarks by the learned judge show that in assessing damages for unlawful termination of an employment contract,  the court has to place the employee in the position he would have been save for the premature termination of the contract. This is in line with the object of damages which is to place a party in the position he or she would have been save for the premature termination of the contract . This position was aptly captured in <em>Goedhals v Graaff-Reinet Municipality</em> 1955 (3) S.A 482 in which HALL J, at 487C-E said;</p> <p>“The general principle upon which damages are to be assessed was laid in <em>Victoria Falls and Transvaal and</em> <em>Power Co. Ltd v Consolidated Langlaate Mines Ltd</em> 1915 A.D. at p 22, where it is stated that, so far as possible, the person injured must be placed in the same position as he would have been if the contract had been performed. On this principle it appears to me that the question which the trial court would have to decide in order to assess damages in this case is what would the opportunity of finding water be worth to the plaintiff under the circumstances of the case.”</p> <p>                        What is derived therein is that damages are awarded for what can be termed as expectation loss. There was no dispute between the parties regarding the nature of the respondent’s contract of employment with the appellant. Thus his status was never in issue. His was a fixed term contract. Further, it was not in dispute that when he was dismissed his contract only had six months before it was due to expire.</p> <p>                        Mr <em>Mucheche</em> conceded, properly in my view, that a distinction had to be drawn between reinstatement to a contract without limit of time and one that was of fixed duration. He however, detracted from this concession by submitting that there should be no distinction between the two when considering consequential damages arising out an unlawful termination of a contract of employment.</p> <p>                        <em>In casu</em>, the contract of employment signed by the parties as outlined above, was for a duration of 36 months, which point was conceded by the respondent.  This means that the relationship between the parties was expected to expire on the last day of the 36th month. The appellant submitted that based on the principles of law that one is compensated for the loss he suffered as a result of the breach, the respondent was entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of the contract. This is the correct position.  Damages for unlawful termination in relation to an employee who was on a fixed term contract ought to be calculated in relation to unexpired period of that contract. This position is fortified in <em>Myers v Abramson</em> 1952 (3) SA 121 (C) in which, in relation to damages for breach of a fixed term contract of employment, the court stated the following:</p> <p>“The measure of damages accorded such employee is, both in our law and in the English law, the actual loss suffered by him represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.’ (at 127 D-E).”</p> <p>The standard in <em>Myers v Abramson</em> intimates that an employee will be entitled to his proven actual damages, which is the loss of income for the unexpired period. The court <em>a quo</em> awarded the respondent damages in <em>lieu</em> of reinstatement for a period of 12 months yet the remaining period was six months. The court <em>a quo</em> failed to take cognisance of the fact that damages in lieu of reinstatement, are in fact, a substitute of reinstatement. The question that ought to have exercised its mind is; if the respondent were to be reinstated, what would be the period of his engagement in terms of the contract? The answer is obviously six months because it is clearly stated in the contract that it was for the duration of 36 months.</p> <p>The court also accepted the appellant’s reasoning that the court <em>a quo</em> in making the order it made, actually created a new contract for the parties. That was a violation of the principle of sanctity of contracts. In <em>Book v Davidson</em> 1988(1) ZLR 365(S), the sanctity of contracts was discussed as follows:</p> <p>“There is however another tenet of public policy, more venerable than any thus engrafted onto it under recent pressures, which is likewise in conflict with the ideal of freedom of trade. It is the sanctity of contracts ...  If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider - that you are not lightly to interfere with this freedom of contract ... to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken is, prima facie at all events, contrary to the interests of any and every country.”</p> <p>The above dictum shows that the principle of sanctity of contracts confines the court only to interpreting a contract and not creating a new contract for the parties. It entails that the court should respect the contract made by the parties and give effect to it.</p> <p>                        The dispute between the parties does not and cannot extend beyond the life span of the contract. Clearly, the court a quo misdirected itself in extending the dispute beyond the life of the contract. If a contract is for a fixed term it automatically expires at the end of the specified period unless the parties thereto mutually agree to its termination. So too do any obligations entered into for performance by the parties to the contract. By accepting that the dispute of the parties did not extend beyond the life of the contract, Mr <em>Mucheche</em> was in effect conceding that there was no place for a claim for consequential damages. Such claim could only properly arise if there was a legitimate expectation that the respondent would be offered permanent employment, which was never the contention.</p> <p>                        What is at issue is the computation of damages for the unexpired period of the contract. In terms of clause 3.1 of the contract the appellant had the sole discretion in deciding whether or not to offer the respondent a permanent position. When the respondent was dismissed the appellant had not exercised that discretion. As a consequence the court a quo ought to have given effect to that clause. Its failure to do so meant that it was extending the period of the contract on its own volition contrary to the wishes of the parties as expressed in the contract. It was therefore a serious misdirection on its part to award damages for a period beyond the date of termination as stipulated in the contract. The court a quo completely ignored the agreement that had been entered into between the parties which stipulated the duration of the relationship between the parties.</p> <p>It should also be noted that in the absence of a finding that the respondent had a legitimate expectation that he would be given a permanent contract, there was no justification for the method it used to quantify damages. The respondent had not completed his training period at the time that he was dismissed and he had failed two core courses which he resat for examinations in 2005 and failed. He would only be competent to be employed on a permanent basis after successfully completing the training. Paragraph 9 of the Zimbabwe Revenue Authority Staff Training and Development Policy provides:</p> <p>A Revenue Trainee who fails to successfully complete level 2 and has a negative mentor’s report will have his/her contract of employment terminated at the end of the prescribed traineeship period. However, in exceptional cases or on recommendation by a mentor/supervisor, he/she may be given one chance to re-sit the failed subject<em>.</em></p> <p>He did not deny that he had rewritten the required examinations and that he had failed a second time. His explanation upon being shown the examination scripts was that he had forgotten having written the said examinations. Against these clear admissions it was therefore a serious misdirection on the part of the court to accept a contention from the respondent that he had only seen the 2005 examination scripts for the first time in court when the appellant produced them. From what is stipulated in the policy, it is clear that the respondent’s employment would have been terminated at the end of the 36 months because he had failed the examinations.</p> <p> </p> <p>There was no basis upon which the respondent could have at law been entitled to more than what he would have earned during the unexpired period of his contract with the appellant and thus there was no legal basis upon which the court <em>a quo</em> made the order it did. It is for the above reasons that we allowed the appeal and made the following order:</p> <ol><li>The appeal be and is hereby allowed with costs.</li> <li>The order of the Labour Court is set aside and the following is substituted:</li> </ol><ul><li>The appellant shall pay the respondent the amount of US$1 470.00 as back-pay and benefits less US$900.00 earned by the respondent from informal jobs over a period of six months.</li> </ul><p><strong>CHIDYAUSIKU CJ (Deceased)                  </strong>I agree</p> <p><strong>MUTEMA AJA         (Deceased)                  </strong>I agree</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-44caa9795e80ccdf2ea0f10b7d84ccd68be901857502e29fae9d26c2025cd0b8"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>REPORTABLE</strong><strong>        (3)</strong></p> <p><strong>ZIMBABWE     REVENUE     AUTHORITY</strong></p> <p><strong>v</strong></p> <p><strong>CHESTER     MUDZIMUWAONA</strong></p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>CHIDYAUSIKU CJ, GOWORA JA &amp; MUTEMA AJA</strong></p> <p><strong>BULAWAYO, </strong>28 JULY 2014</p> <p><em>T. Magwaliba</em>, for the appellant                                                                                         </p> <p><em>C. Mucheche</em>, for the first respondent</p> <p><strong>                        GOWORA JA</strong>:  This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course. The following are the reasons for the order.</p> <p>                        The facts arising in this matter are that in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:</p> <p>“upon successful completion of the probation period the employment contract shall run for a further period of 24 (twenty-four) months after which the authority , may at its sole discretion offer you permanent employment on such terms and conditions as determined by it at the time.”</p> <p>                        The literal meaning of that clause is that the respondent’s contract was subject, first to the successful completion of the probation period and then would terminate at the end of 36 month. </p> <p>                        In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment. He was arraigned before a disciplinary committee and was found guilty of both charges. He was as a consequence dismissed from employment. He appealed to the appeals committee without success.</p> <p>                        The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court <em>a quo</em> ordered the appellant to reinstate the respondent without loss of salary or benefits and, in the event that reinstatement was no longer tenable, to pay damages in <em>lieu</em> of reinstatement. This decision was not appealed against. Instead, the parties decided to negotiate the <em>quantum</em> of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification. He claimed that when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee. The appellant opposed the quantification on the basis that the respondent was employed on a fixed term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract. The Labour Court ruled in favour of the respondent and ordered the appellant to pay:</p> <ul><li>US$ 19 740.16 as back-pay and benefits</li> <li>Twelve (12) months’ salary that the respondent would have earned in August 2011 minus US$150.00 earned by the respondent per month for a period of twelve months.</li> </ul><p>The appellant was aggrieved by the decision and with the leave of this court has appealed the order of the court <em>a quo</em>. It is criticized for the following reasons:</p> <ul><li> </li> </ul><p>-           failing to give proper weight to the fact that when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.</p> <ul><li> </li> <li> </li> </ul><p>-           failing to distinguish between a permanent employee and an employee on a fixed term contract in its quantification of damages, especially after finding that the respondent did not have a legitimate expectation to be offered permanent employment.</p> <ul><li> </li> </ul><p>-           in failing to deduct the US$150.00 earned by the respondent per month for a period of twelve (12) months from the total amount awarded as back pay and benefits.</p> <ul><li> </li> </ul><p>-           in rejecting the evidence of the appellant’s expert witness on the factual issues and accepting that of the respondent and his witness on unclear grounds.</p> <p>                        The respondent raised three preliminary objections to the appeal. The objections were respectively that, the notice of appeal did not state the correct date of judgment, the grounds of appeal were not clear and concise and, lastly, that the grounds of appeal did not raise questions of law. The respondent abandoned the first objection after conceding that the notice of appeal in point of fact reflected the correct date of judgment.</p> <p>                        The other two points were dismissed by the court.  Quite apart from the fact that in mounting the objections, the respondent sought to rely on the Supreme Court Rules, 1964 which are not applicable to appeals from the Labour Court, in attacking the grounds of appeal, the point that the grounds of appeal were not clear and concise had no merit. The respondent was unable to show to this court in what way the grounds of appeal were not clear and concise. The grounds set out by the appellant may have been inelegantly drafted but they articulate the basis upon which the appeal is founded.</p> <p>                        Regarding the point taken that the grounds of appeal were not on a question of law, the court was of the view that the point was improperly taken. The issue of what is a question of law has been addressed in a plethora of cases. See for example, <em>Muzuva v United Bottlers (Pvt) Ltd </em>1994 (1) ZLR 217 (S) and <em>Hama v National Railways of Zimbabwe </em>1996 (1) ZLR 664 (S).</p> <p>                        The respondent submitted that the appellant should have expressly stated in its grounds of appeal that the factual findings of the court <em>a quo</em> are gross as to amount to a question of law.  In <em>Reserve Bank of Zimbabwe v Granger and Anor</em> SC 34/01, MUCHECHETERE JA (as he then was), at page 5 to 6 of the cyclostyled judgment, said:</p> <p>“An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”</p> <p>These remarks were qualified by GARWE JA in <em>Zvokusekwa v Biita Rural District Council</em> SC-44-15 as follows:</p> <p>“In my view, the remarks made in Granger’s case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.  One must, I think, be guided by the substance of the grounds of appeal and not the form.  Legal practitioners often exhibit different styles in formulating such grounds.  What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.” </p> <p>                        The essential principle outlined above is that regard must be had to the substance of a ground of appeal as opposed to its form in order to determine whether it raises a question of law. The court was of the view that the grounds of appeal raised by the appellant in essence attacked the alleged failure by the court <em>a quo</em> to consider relevant facts which failure led to an error at law. The grounds complied with the requirements of s 92F of the Labour Act [<em>Chapter 28:01</em>] and therefore the point <em>in limine</em> was dismissed.</p> <p>                        On the merits the issues which are pertinent in the determination of the appeal are the following:</p> <ul><li>Whether or not the court <em>a quo</em> correctly applied the principles on fixed term contracts;</li> </ul><p>(b) Whether or not the respondent had a legitimate expectation of being offered employment on a permanent basis;</p> <ul><li>Whether or not the court drew a distinction between a permanent employee and one on a fixed term contract in its quantification of damages; and</li> <li>Whether or not the court grossly misdirected itself in respect of the factual findings it arrived at on the evidence presented.</li> </ul><p>                        It was the appellant’s contention that the court <em>a quo</em> erred in law by quantifying damages as if the respondent was a permanent employee prior to his dismissal, yet it is clear from the contract of employment that he was on a fixed term contract. One of the first categoric statements on the assessment of damages for unlawful dismissal was enunciated by GUBBAY CJ in <em>Gauntlet Security Services v Leonard</em> 1997 (1) ZLR 583 (S) in which he said:</p> <p>“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his Contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.”</p> <p>The remarks by the learned judge show that in assessing damages for unlawful termination of an employment contract,  the court has to place the employee in the position he would have been save for the premature termination of the contract. This is in line with the object of damages which is to place a party in the position he or she would have been save for the premature termination of the contract . This position was aptly captured in <em>Goedhals v Graaff-Reinet Municipality</em> 1955 (3) S.A 482 in which HALL J, at 487C-E said;</p> <p>“The general principle upon which damages are to be assessed was laid in <em>Victoria Falls and Transvaal and</em> <em>Power Co. Ltd v Consolidated Langlaate Mines Ltd</em> 1915 A.D. at p 22, where it is stated that, so far as possible, the person injured must be placed in the same position as he would have been if the contract had been performed. On this principle it appears to me that the question which the trial court would have to decide in order to assess damages in this case is what would the opportunity of finding water be worth to the plaintiff under the circumstances of the case.”</p> <p>                        What is derived therein is that damages are awarded for what can be termed as expectation loss. There was no dispute between the parties regarding the nature of the respondent’s contract of employment with the appellant. Thus his status was never in issue. His was a fixed term contract. Further, it was not in dispute that when he was dismissed his contract only had six months before it was due to expire.</p> <p>                        Mr <em>Mucheche</em> conceded, properly in my view, that a distinction had to be drawn between reinstatement to a contract without limit of time and one that was of fixed duration. He however, detracted from this concession by submitting that there should be no distinction between the two when considering consequential damages arising out an unlawful termination of a contract of employment.</p> <p>                        <em>In casu</em>, the contract of employment signed by the parties as outlined above, was for a duration of 36 months, which point was conceded by the respondent.  This means that the relationship between the parties was expected to expire on the last day of the 36th month. The appellant submitted that based on the principles of law that one is compensated for the loss he suffered as a result of the breach, the respondent was entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of the contract. This is the correct position.  Damages for unlawful termination in relation to an employee who was on a fixed term contract ought to be calculated in relation to unexpired period of that contract. This position is fortified in <em>Myers v Abramson</em> 1952 (3) SA 121 (C) in which, in relation to damages for breach of a fixed term contract of employment, the court stated the following:</p> <p>“The measure of damages accorded such employee is, both in our law and in the English law, the actual loss suffered by him represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.’ (at 127 D-E).”</p> <p>The standard in <em>Myers v Abramson</em> intimates that an employee will be entitled to his proven actual damages, which is the loss of income for the unexpired period. The court <em>a quo</em> awarded the respondent damages in <em>lieu</em> of reinstatement for a period of 12 months yet the remaining period was six months. The court <em>a quo</em> failed to take cognisance of the fact that damages in lieu of reinstatement, are in fact, a substitute of reinstatement. The question that ought to have exercised its mind is; if the respondent were to be reinstated, what would be the period of his engagement in terms of the contract? The answer is obviously six months because it is clearly stated in the contract that it was for the duration of 36 months.</p> <p>The court also accepted the appellant’s reasoning that the court <em>a quo</em> in making the order it made, actually created a new contract for the parties. That was a violation of the principle of sanctity of contracts. In <em>Book v Davidson</em> 1988(1) ZLR 365(S), the sanctity of contracts was discussed as follows:</p> <p>“There is however another tenet of public policy, more venerable than any thus engrafted onto it under recent pressures, which is likewise in conflict with the ideal of freedom of trade. It is the sanctity of contracts ...  If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider - that you are not lightly to interfere with this freedom of contract ... to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken is, prima facie at all events, contrary to the interests of any and every country.”</p> <p>The above dictum shows that the principle of sanctity of contracts confines the court only to interpreting a contract and not creating a new contract for the parties. It entails that the court should respect the contract made by the parties and give effect to it.</p> <p>                        The dispute between the parties does not and cannot extend beyond the life span of the contract. Clearly, the court a quo misdirected itself in extending the dispute beyond the life of the contract. If a contract is for a fixed term it automatically expires at the end of the specified period unless the parties thereto mutually agree to its termination. So too do any obligations entered into for performance by the parties to the contract. By accepting that the dispute of the parties did not extend beyond the life of the contract, Mr <em>Mucheche</em> was in effect conceding that there was no place for a claim for consequential damages. Such claim could only properly arise if there was a legitimate expectation that the respondent would be offered permanent employment, which was never the contention.</p> <p>                        What is at issue is the computation of damages for the unexpired period of the contract. In terms of clause 3.1 of the contract the appellant had the sole discretion in deciding whether or not to offer the respondent a permanent position. When the respondent was dismissed the appellant had not exercised that discretion. As a consequence the court a quo ought to have given effect to that clause. Its failure to do so meant that it was extending the period of the contract on its own volition contrary to the wishes of the parties as expressed in the contract. It was therefore a serious misdirection on its part to award damages for a period beyond the date of termination as stipulated in the contract. The court a quo completely ignored the agreement that had been entered into between the parties which stipulated the duration of the relationship between the parties.</p> <p>It should also be noted that in the absence of a finding that the respondent had a legitimate expectation that he would be given a permanent contract, there was no justification for the method it used to quantify damages. The respondent had not completed his training period at the time that he was dismissed and he had failed two core courses which he resat for examinations in 2005 and failed. He would only be competent to be employed on a permanent basis after successfully completing the training. Paragraph 9 of the Zimbabwe Revenue Authority Staff Training and Development Policy provides:</p> <p>A Revenue Trainee who fails to successfully complete level 2 and has a negative mentor’s report will have his/her contract of employment terminated at the end of the prescribed traineeship period. However, in exceptional cases or on recommendation by a mentor/supervisor, he/she may be given one chance to re-sit the failed subject<em>.</em></p> <p>He did not deny that he had rewritten the required examinations and that he had failed a second time. His explanation upon being shown the examination scripts was that he had forgotten having written the said examinations. Against these clear admissions it was therefore a serious misdirection on the part of the court to accept a contention from the respondent that he had only seen the 2005 examination scripts for the first time in court when the appellant produced them. From what is stipulated in the policy, it is clear that the respondent’s employment would have been terminated at the end of the 36 months because he had failed the examinations.</p> <p> </p> <p>There was no basis upon which the respondent could have at law been entitled to more than what he would have earned during the unexpired period of his contract with the appellant and thus there was no legal basis upon which the court <em>a quo</em> made the order it did. It is for the above reasons that we allowed the appeal and made the following order:</p> <ol><li>The appeal be and is hereby allowed with costs.</li> <li>The order of the Labour Court is set aside and the following is substituted:</li> </ol><ul><li>The appellant shall pay the respondent the amount of US$1 470.00 as back-pay and benefits less US$900.00 earned by the respondent from informal jobs over a period of six months.</li> </ul><p><strong>CHIDYAUSIKU CJ (Deceased)                  </strong>I agree</p> <p><strong>MUTEMA AJA         (Deceased)                  </strong>I agree</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:14 +0000 Anonymous 10084 at http://www.zimlii.org St. Giles Medical Rehabilitation Centre v Patsanza (SC 59 of 2018, Case SC 668 of 2015, Ref Case LC/H/ 116 of 2013) [2018] ZWSC 59 (23 September 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/59 <span class="field field--name-title field--type-string field--label-hidden">St. Giles Medical Rehabilitation Centre v Patsanza (SC 59 of 2018, Case SC 668 of 2015, Ref Case LC/H/ 116 of 2013) [2018] ZWSC 59 (23 September 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2300" hreflang="x-default">Contract (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2252" hreflang="x-default">Labour Act [Chapter 28:01]</a></div> <div class="field__item"><a href="/taxonomy/term/1981" hreflang="en">Termination of Employment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/59/2018-zwsc-59.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40438">2018-zwsc-59.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/59/2018-zwsc-59.pdf" type="application/pdf; length=240906">2018-zwsc-59.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>DISTRIBUTABLE</strong><strong>   (46)</strong></p> <p> </p> <p> </p> <p><strong>ST. GILES     MEDICAL     REHABILITATION     CENTRE</strong></p> <p><strong>v</strong></p> <p><strong>LAMBERT     PATSANZA</strong></p> <p>                                                                       </p> <p>       </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GUVAVA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE, 23 September 2016</strong></p> <p> </p> <p> </p> <p><em>S. Banda, </em>for the appellant</p> <p><em>W. Jiti, </em>for the respondent</p> <p> </p> <p> </p> <p><strong>GUVAVA JA</strong>:    This is an appeal against a judgment of the Labour Court dated 27 September 2013.</p> <p> </p> <p> After hearing argument we made an order allowing the appeal in part and indicated that the reasons thereof would be availed in due course.  The reasons for that decision are set out below:</p> <p> </p> <p><strong>BACKGROUND FACTS</strong></p> <p>The appellant engaged the respondent as a Finance and Administration Manager. The contract was subject to a three months’ probationary period.  The period of probation was effective from 28 February 2012 and was to end in May 2012.</p> <p>On 31 May 2012 the respondent was advised that his position was not going to be confirmed as his evaluation had not been satisfactory. The appellant however decided to extend the probation period by one month. This was in an attempt to allow the respondent to remedy the inconsistencies which had been noted by the appellant during his evaluation which had taken place at the beginning of May 2012. The respondent refused to accept an extension of the period of probation, arguing that he had successfully completed the accounts for 2011 and that he had subsequently been issued with a company car. It was his argument that the issuance of the company car confirmed that he was now a permanent employee. In spite of his protestations, the respondent continued to work for the duration of the extension.</p> <p> </p> <p>On 21 July 2012 the appellant wrote to the respondent advising him again that his probationary period had not been successful and gave him two weeks’ notice to terminate his services.</p> <p> </p> <p>The respondent declined to accept the two-week period of notice and argued that the termination amounted to an unfair dismissal. He argued that as a “permanent employee” he was entitled to three months’ notice of the termination of his employment.</p> <p> </p> <p>As the parties were unable to resolve the dispute, it was referred to an Arbitrator who found that the extension of the probationary period was unlawful.  The arbitrator made an award on 31 January 2013 in the following terms:</p> <ol><li>back-pay of salary and benefits from 1 July 2012 to the date of the award,</li> <li>the value of six months’ basic salary for compensation for unlawful termination of the employment contract,</li> <li>three months’ salary as notice pay which would incorporate cash <em>in lieu</em> of leave days; pension contributions; compensation for loss of the company vehicle; and 100 litres of fuel per month for the period from July 2012 until the date of the award.</li> </ol><p> </p> <p>The appellant was dissatisfied with the award and approached the court<em> a quo </em>seeking the setting aside of that determination and the confirmation of the termination of the respondent’s employment. The appeal was opposed by the respondent.</p> <p> </p> <p>The court <em>a quo</em> upheld the Arbitrator’s award and dismissed the appeal. The appellant noted an appeal against the decision of the court <em>a quo</em> on four grounds, namely:-</p> <p>“1. The court <em>a quo</em> erred on a point of law by holding that</p> <p>section 12(5) of the Labour Act does not confer a discretion to the employer <em>(sic)</em>to extend an employee’s probationary period and further that according to Labour Act, a probation period cannot be extended</p> <ol><li>The court <em>a quo</em> erred on a point of law by holding that by extending the probationary period, the employer had made the employees position permanent by operation of the law. The extension of probation does not amount to an election to permanently employ an employee on probation, where such extension has been explicitly communicated.</li> <li>The court <em>a quo</em> misdirected itself by completely ignoring that the parties’ employment relationship was governed by a contract of employment and that according to that contract of employment confirmation into a substantive position was to be done in writing and subject to a successful medical examination.</li> <li>The court <em>a quo</em> erred on a point of law by holding that the respondent was entitled to three (3) months’ notice, when he was in fact not a permanent employee.”</li> </ol><p> </p> <p> </p> <p><strong>ISSUES BEFORE THE COURT</strong></p> <p>It seems to me that three issues present themselves for determination. These are:-</p> <ol><li>The purpose of a period of probation.</li> <li>Whether s 12 (5) of the Labour Act permits an extension of a period of probation.</li> <li>The status of an employee who continues to work after the probationary period has elapsed.</li> </ol><p>I propose to deal with each of the issues in turn.</p> <p> </p> <ol><li><strong>The purpose of a period of probation</strong></li> </ol><p>The main reason for having a period of probation is now generally accepted. A probationary period is designed to function as a time when an employer can evaluate a “potential” employee before opting to accept him or her as a full time employee. During this period the employee is assessed and evaluated to determine his suitability for permanent employment. Professor Lovemore Madhuku in his book “<em>Labour Law in Zimbabwe</em>” at page 44 states as follows with regards to the purpose of probation:</p> <p>“A probationary employee is one who is in the initial period of his or her employment where his skill and abilities are being assessed. <strong>The probationary employment contract is separate from the second employment contract,</strong> which is conditional on successfully completing the probation ….”</p> <p> </p> <p> </p> <p>CHINHENGO J in <em>Madawo v Interfresh Limited</em> 2000 (1) ZLR 660 at 882 remarked as follows:</p> <p>“Probation is defined in the New English Dictionary as “The action or process of testing or putting to the proof … the testing or trial of a person’s conduct, character or moral qualification; a proceeding designed to ascertain these … for some position or office. I think these words very well describe the process of probation as commonly undergone by accepted candidates ….”</p> <p> </p> <p> </p> <p>Probation was expressed by NDOU J in the case of <em>Commercial Bank of Zimbabwe v Kwangwari</em> HH79/2003 as follows:</p> <p>“Probationary clauses provide for a trial period during which the reciprocal periods of notice required for termination are shorter, and which purportedly give both parties the right either to confirm or not to confirm the contract at the conclusion of the probationary period”</p> <p> </p> <p> </p> <p>It is apparent from the above that firstly, the employee must successfully complete the period of probation before he can be permanently employed. Secondly, that the probationary period is a separate and distinct contract. Thirdly, the contract of permanent employment only comes into operation once an employee has successfully completed the period of probation and finally, it is reciprocal in nature. In other words if an employee is dissatisfied with the employer he may also terminate the employment by giving the requisite notice.</p> <p> </p> <ol><li><strong>Whether the Labour Act permits an extension of a period of probation</strong></li> </ol><p>Section 12(5) of the Labour Act [<em>Chapter 9:16</em>] regulates issues of probation in the workplace.  The section reads as follows:</p> <p>“A contract of employment may provide in writing for a single, non-renewable probationary period …”</p> <p> </p> <p> </p> <p>This provision is clear and requires no interpretation. It seems to me that the provision provides that where an employer decides to include a probationary period in the contract of employment then that period is not renewable. The court <em>a quo</em> in my view correctly found that the use of the word “may” in the above section relates to the employer’s discretion to engage an employee either on probation or immediately into a substantive position. Once a probationary period is given by an employer then it can only be a “single, non-renewable” period. In this regard Professor Madhuku states:</p> <p>“This means that at the end of a probationary period the employer has two choices: either allow the probationary contract to lapse and let the employee go, or enter into a second employment contract with the employee. <strong>There is no room for renewal of the probationary contract.</strong>”</p> <p> </p> <p> </p> <p>This position was also set out in the case of <em>Kazembe v the Adult Literacy Organisation </em>SC 173/1994, where the court stated that once a probation period ends and the employer is dissatisfied with the probationer’s performance, all that the employer needs to do is to inform him that his services are no longer required and that would be the end of the matter.</p> <p> </p> <p>There are two ways in which an unsuccessful probationary employee can be dismissed. The first is to allow the probation period to expire naturally wherein the employee is released at the end of that period. The second is to release the probationary employee before the end of the probation period. Where the probationary period is cut short then the issue of notice arises and he must be given notice in terms of the contract.  (see<em> Time Bank of Zimbabwe v Nkosana Moyo HH26/02</em><strong>.</strong>)</p> <p> </p> <p>I do not accept Mr <em>Banda</em>’s submission that the appellant could extend the probationary period. The appellant relied on the position in<em> Kwangwari v Commercial Bank of Zimbabwe</em> (<em>supra</em>) where the court allowed the employer the discretion to extend a probationary period without the employee assuming substantive appointment to a permanent position. It is apparent that at the time that NDOU J dealt with the <em>Kwangwari</em> case, s 12(5) of the Labour Act had not come into operation.  This case came before the High Court in 2002. Section 12(5) of the Act was only enacted by amendment 17/2002 which was published and came into operation on 7 March 2003.</p> <p>In view of the above, it is therefore apparent that the appellant committed two errors.  It erred in extending the period of probation. It also erred in dismissing the respondent on two weeks’ notice which was not provided for in the contract of employment. </p> <p> </p> <p><strong>(3)</strong>                   <strong>What was the respondents’ employment status at the time of termination of the contract?</strong></p> <p>It seems to me that the appellant, having failed to dismiss the respondent during the period of probation, the question that arises is the status of the respondent after the three months probationary period. Applying s 12(5) of the Labour Act, it is apparent that the respondent was no longer on probation as the contract stipulated a three month period of probation.</p> <p> </p> <p>                        Clearly, therefore, in these circumstances the court <em>a quo</em> was correct in finding that the respondent had become a permanent employee.</p> <p> </p> <p>However I am not satisfied that the respondent was entitled to the total award made by the Arbitrator.   As the respondent was now a permanent employee, the consequence of his dismissal which the Arbitrator found to be unlawful should have been reinstatement.  The remedy was not to dismiss him on three months’ notice. </p> <p> </p> <p>It was on the basis of the above that the appeal was allowed in part and the following order made:</p> <ol><li>The appeal against the judgment of the Labour Court be and is hereby allowed in part, with each party paying its own costs.</li> <li>The judgment of the court <em>a quo</em> is amended to read as follows:-</li> </ol><ul><li>The appeal is allowed in part, with each party paying its own costs.</li> <li>The award of the arbitrator in respect of the monetary award is set aside.</li> <li>The award is amended to read as follows:</li> </ul><ul><li>“The termination of the employment of the claimant is unlawful and is set aside.</li> <li>The respondent is ordered to reinstate the claimant into his former position without loss of salary and benefits.</li> <li>In the event that reinstatement is no longer possible, the respondent is to pay damages to the claimant as agreed upon between the parties or, that failing, as determined before me upon application.</li> <li>Each party pays its own costs</li> </ul><p><strong>GARWE JA:</strong>             I agree</p> <p><strong>UCHENA JA:</strong>           I agree</p> <p><em>Mambara &amp; Partners</em>, appellants’ legal practitioners</p> <p><em>Musendekwa – Mtisi</em>, respondents’ legal practitioner</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-021ef6e584b1a58c2a6f0fdcc6c4046eea6ad9824039dd573cc75607b4db86e8"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>DISTRIBUTABLE</strong><strong>   (46)</strong></p> <p> </p> <p> </p> <p><strong>ST. GILES     MEDICAL     REHABILITATION     CENTRE</strong></p> <p><strong>v</strong></p> <p><strong>LAMBERT     PATSANZA</strong></p> <p>                                                                       </p> <p>       </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GUVAVA JA &amp; UCHENA JA</strong></p> <p><strong>HARARE, 23 September 2016</strong></p> <p> </p> <p> </p> <p><em>S. Banda, </em>for the appellant</p> <p><em>W. Jiti, </em>for the respondent</p> <p> </p> <p> </p> <p><strong>GUVAVA JA</strong>:    This is an appeal against a judgment of the Labour Court dated 27 September 2013.</p> <p> </p> <p> After hearing argument we made an order allowing the appeal in part and indicated that the reasons thereof would be availed in due course.  The reasons for that decision are set out below:</p> <p> </p> <p><strong>BACKGROUND FACTS</strong></p> <p>The appellant engaged the respondent as a Finance and Administration Manager. The contract was subject to a three months’ probationary period.  The period of probation was effective from 28 February 2012 and was to end in May 2012.</p> <p>On 31 May 2012 the respondent was advised that his position was not going to be confirmed as his evaluation had not been satisfactory. The appellant however decided to extend the probation period by one month. This was in an attempt to allow the respondent to remedy the inconsistencies which had been noted by the appellant during his evaluation which had taken place at the beginning of May 2012. The respondent refused to accept an extension of the period of probation, arguing that he had successfully completed the accounts for 2011 and that he had subsequently been issued with a company car. It was his argument that the issuance of the company car confirmed that he was now a permanent employee. In spite of his protestations, the respondent continued to work for the duration of the extension.</p> <p> </p> <p>On 21 July 2012 the appellant wrote to the respondent advising him again that his probationary period had not been successful and gave him two weeks’ notice to terminate his services.</p> <p> </p> <p>The respondent declined to accept the two-week period of notice and argued that the termination amounted to an unfair dismissal. He argued that as a “permanent employee” he was entitled to three months’ notice of the termination of his employment.</p> <p> </p> <p>As the parties were unable to resolve the dispute, it was referred to an Arbitrator who found that the extension of the probationary period was unlawful.  The arbitrator made an award on 31 January 2013 in the following terms:</p> <ol><li>back-pay of salary and benefits from 1 July 2012 to the date of the award,</li> <li>the value of six months’ basic salary for compensation for unlawful termination of the employment contract,</li> <li>three months’ salary as notice pay which would incorporate cash <em>in lieu</em> of leave days; pension contributions; compensation for loss of the company vehicle; and 100 litres of fuel per month for the period from July 2012 until the date of the award.</li> </ol><p> </p> <p>The appellant was dissatisfied with the award and approached the court<em> a quo </em>seeking the setting aside of that determination and the confirmation of the termination of the respondent’s employment. The appeal was opposed by the respondent.</p> <p> </p> <p>The court <em>a quo</em> upheld the Arbitrator’s award and dismissed the appeal. The appellant noted an appeal against the decision of the court <em>a quo</em> on four grounds, namely:-</p> <p>“1. The court <em>a quo</em> erred on a point of law by holding that</p> <p>section 12(5) of the Labour Act does not confer a discretion to the employer <em>(sic)</em>to extend an employee’s probationary period and further that according to Labour Act, a probation period cannot be extended</p> <ol><li>The court <em>a quo</em> erred on a point of law by holding that by extending the probationary period, the employer had made the employees position permanent by operation of the law. The extension of probation does not amount to an election to permanently employ an employee on probation, where such extension has been explicitly communicated.</li> <li>The court <em>a quo</em> misdirected itself by completely ignoring that the parties’ employment relationship was governed by a contract of employment and that according to that contract of employment confirmation into a substantive position was to be done in writing and subject to a successful medical examination.</li> <li>The court <em>a quo</em> erred on a point of law by holding that the respondent was entitled to three (3) months’ notice, when he was in fact not a permanent employee.”</li> </ol><p> </p> <p> </p> <p><strong>ISSUES BEFORE THE COURT</strong></p> <p>It seems to me that three issues present themselves for determination. These are:-</p> <ol><li>The purpose of a period of probation.</li> <li>Whether s 12 (5) of the Labour Act permits an extension of a period of probation.</li> <li>The status of an employee who continues to work after the probationary period has elapsed.</li> </ol><p>I propose to deal with each of the issues in turn.</p> <p> </p> <ol><li><strong>The purpose of a period of probation</strong></li> </ol><p>The main reason for having a period of probation is now generally accepted. A probationary period is designed to function as a time when an employer can evaluate a “potential” employee before opting to accept him or her as a full time employee. During this period the employee is assessed and evaluated to determine his suitability for permanent employment. Professor Lovemore Madhuku in his book “<em>Labour Law in Zimbabwe</em>” at page 44 states as follows with regards to the purpose of probation:</p> <p>“A probationary employee is one who is in the initial period of his or her employment where his skill and abilities are being assessed. <strong>The probationary employment contract is separate from the second employment contract,</strong> which is conditional on successfully completing the probation ….”</p> <p> </p> <p> </p> <p>CHINHENGO J in <em>Madawo v Interfresh Limited</em> 2000 (1) ZLR 660 at 882 remarked as follows:</p> <p>“Probation is defined in the New English Dictionary as “The action or process of testing or putting to the proof … the testing or trial of a person’s conduct, character or moral qualification; a proceeding designed to ascertain these … for some position or office. I think these words very well describe the process of probation as commonly undergone by accepted candidates ….”</p> <p> </p> <p> </p> <p>Probation was expressed by NDOU J in the case of <em>Commercial Bank of Zimbabwe v Kwangwari</em> HH79/2003 as follows:</p> <p>“Probationary clauses provide for a trial period during which the reciprocal periods of notice required for termination are shorter, and which purportedly give both parties the right either to confirm or not to confirm the contract at the conclusion of the probationary period”</p> <p> </p> <p> </p> <p>It is apparent from the above that firstly, the employee must successfully complete the period of probation before he can be permanently employed. Secondly, that the probationary period is a separate and distinct contract. Thirdly, the contract of permanent employment only comes into operation once an employee has successfully completed the period of probation and finally, it is reciprocal in nature. In other words if an employee is dissatisfied with the employer he may also terminate the employment by giving the requisite notice.</p> <p> </p> <ol><li><strong>Whether the Labour Act permits an extension of a period of probation</strong></li> </ol><p>Section 12(5) of the Labour Act [<em>Chapter 9:16</em>] regulates issues of probation in the workplace.  The section reads as follows:</p> <p>“A contract of employment may provide in writing for a single, non-renewable probationary period …”</p> <p> </p> <p> </p> <p>This provision is clear and requires no interpretation. It seems to me that the provision provides that where an employer decides to include a probationary period in the contract of employment then that period is not renewable. The court <em>a quo</em> in my view correctly found that the use of the word “may” in the above section relates to the employer’s discretion to engage an employee either on probation or immediately into a substantive position. Once a probationary period is given by an employer then it can only be a “single, non-renewable” period. In this regard Professor Madhuku states:</p> <p>“This means that at the end of a probationary period the employer has two choices: either allow the probationary contract to lapse and let the employee go, or enter into a second employment contract with the employee. <strong>There is no room for renewal of the probationary contract.</strong>”</p> <p> </p> <p> </p> <p>This position was also set out in the case of <em>Kazembe v the Adult Literacy Organisation </em>SC 173/1994, where the court stated that once a probation period ends and the employer is dissatisfied with the probationer’s performance, all that the employer needs to do is to inform him that his services are no longer required and that would be the end of the matter.</p> <p> </p> <p>There are two ways in which an unsuccessful probationary employee can be dismissed. The first is to allow the probation period to expire naturally wherein the employee is released at the end of that period. The second is to release the probationary employee before the end of the probation period. Where the probationary period is cut short then the issue of notice arises and he must be given notice in terms of the contract.  (see<em> Time Bank of Zimbabwe v Nkosana Moyo HH26/02</em><strong>.</strong>)</p> <p> </p> <p>I do not accept Mr <em>Banda</em>’s submission that the appellant could extend the probationary period. The appellant relied on the position in<em> Kwangwari v Commercial Bank of Zimbabwe</em> (<em>supra</em>) where the court allowed the employer the discretion to extend a probationary period without the employee assuming substantive appointment to a permanent position. It is apparent that at the time that NDOU J dealt with the <em>Kwangwari</em> case, s 12(5) of the Labour Act had not come into operation.  This case came before the High Court in 2002. Section 12(5) of the Act was only enacted by amendment 17/2002 which was published and came into operation on 7 March 2003.</p> <p>In view of the above, it is therefore apparent that the appellant committed two errors.  It erred in extending the period of probation. It also erred in dismissing the respondent on two weeks’ notice which was not provided for in the contract of employment. </p> <p> </p> <p><strong>(3)</strong>                   <strong>What was the respondents’ employment status at the time of termination of the contract?</strong></p> <p>It seems to me that the appellant, having failed to dismiss the respondent during the period of probation, the question that arises is the status of the respondent after the three months probationary period. Applying s 12(5) of the Labour Act, it is apparent that the respondent was no longer on probation as the contract stipulated a three month period of probation.</p> <p> </p> <p>                        Clearly, therefore, in these circumstances the court <em>a quo</em> was correct in finding that the respondent had become a permanent employee.</p> <p> </p> <p>However I am not satisfied that the respondent was entitled to the total award made by the Arbitrator.   As the respondent was now a permanent employee, the consequence of his dismissal which the Arbitrator found to be unlawful should have been reinstatement.  The remedy was not to dismiss him on three months’ notice. </p> <p> </p> <p>It was on the basis of the above that the appeal was allowed in part and the following order made:</p> <ol><li>The appeal against the judgment of the Labour Court be and is hereby allowed in part, with each party paying its own costs.</li> <li>The judgment of the court <em>a quo</em> is amended to read as follows:-</li> </ol><ul><li>The appeal is allowed in part, with each party paying its own costs.</li> <li>The award of the arbitrator in respect of the monetary award is set aside.</li> <li>The award is amended to read as follows:</li> </ul><ul><li>“The termination of the employment of the claimant is unlawful and is set aside.</li> <li>The respondent is ordered to reinstate the claimant into his former position without loss of salary and benefits.</li> <li>In the event that reinstatement is no longer possible, the respondent is to pay damages to the claimant as agreed upon between the parties or, that failing, as determined before me upon application.</li> <li>Each party pays its own costs</li> </ul><p><strong>GARWE JA:</strong>             I agree</p> <p><strong>UCHENA JA:</strong>           I agree</p> <p><em>Mambara &amp; Partners</em>, appellants’ legal practitioners</p> <p><em>Musendekwa – Mtisi</em>, respondents’ legal practitioner</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:45 +0000 Anonymous 10066 at http://www.zimlii.org Drum City (Private) Limited v Garudzo (SC 57 of 2018, Civil Appeal 937 of 2017) [2018] ZWSC 57 (25 September 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/57 <span class="field field--name-title field--type-string field--label-hidden">Drum City (Private) Limited v Garudzo (SC 57 of 2018, Civil Appeal 937 of 2017) [2018] ZWSC 57 (25 September 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/57/2018-zwsc-57.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=51045">2018-zwsc-57.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/57/2018-zwsc-57.pdf" type="application/pdf; length=278123">2018-zwsc-57.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><a name="_Hlk507840611" id="_Hlk507840611"><strong>REPORTABLE </strong></a><strong>       (47)  </strong></p> <p> </p> <p><strong>DRUM     CITY     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>BRENDA     GARUDZO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, MAKARAU JA &amp; MAKONI JA</strong></p> <p><strong>HARARE, JUNE 26, 2018 &amp; SEPTEMBER 25, 2018</strong></p> <p> </p> <p><em>V. Shamu</em>, for the appellant</p> <p>No appearance, for respondent</p> <p>             </p> <p><strong>GWAUNZA DCJ</strong></p> <p>[1]        This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant’s former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain acts of misconduct, including theft.</p> <p>           </p> <p><strong>FACTUAL CONSPECTUS</strong></p> <p>[2]        The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3 986-61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.</p> <p> </p> <p>[3]        Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of s 93 of the Labour Act [<em>Chapter 28:01</em>], (“the Act”). The dispute was placed before the respondent for a hearing. It was her case that no proper investigations were conducted into the allegations levelled against her and further, that she was not granted the right to be heard before she was summarily dismissed. She thus claimed damages for unlawful dismissal totalling US$23 253-34.</p> <p> </p> <p>[4]        Before the labour officer, the parties did not agree on Ms Khan’s monthly salary, as the appellant alleged that it was US$750-00 while Ms Khan argued that it was US$1500 - 00. The respondent ruled in favour of Ms Khan on this point and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages <em>in lieu</em> of reinstatement amounting to a total of US$9000-00.</p> <p> </p> <p>[5]        Subsequently, the labour officer applied to the Labour Court in terms of s 93 (5a) of the Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings. The appellant opposed the application but the court <em>a quo</em> after hearing oral argument from the appellant, granted an order confirming the ruling.</p> <p> </p> <p><strong>PROCEEDINGS BEFORE THIS COURT </strong></p> <p>[6]        The appellant was aggrieved by the decision of the court <em>a quo</em> and has appealed against it to this Court. It argues in the main that the court <em>a quo</em> erred in simply confirming the respondent’s award to Ms Khan of US$9 000-00 as damages without fully addressing the principles of law to be applied thereto. It further argued that the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property and in addition, had failed to avail herself for the hearing which led to her dismissal.</p> <p> </p> <p>[7]        The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing. The court observed that the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.  Ms Khan, was not cited in the appeal before this Court. Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.</p> <p>           </p> <p><strong>SECTION 93(5a) – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS</strong></p> <p>[8]        Counsel for the appellant rightly conceded that the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court <em>a quo</em> and in this Court. Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.  The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of s 93 (5a) of the Act. The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer’s draft ruling in terms of s 93(5b) of the Act.</p> <p> </p> <p>[9]        It is noted that prior to the Labour Amendment Act No. 5 of 2015, labour disputes of right would go before a labour officer for conciliation, and if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard. Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party on the other hand, had the right to appeal against the award to the Labour Court.</p> <p> </p> <p>The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of s 93 (5a) and (5b) of the Labour Act was meant to address this mischief.</p> <p> </p> <p>[10]      Subsections 93(5a) and (5b) provide as follows:</p> <p>(5a)      A labour officer who makes a ruling and order in terms of ss (5)(c) shall as                       soon as practicable-</p> <p>(a)        <strong>make an affidavit to that effect incorporating</strong>, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and</p> <p>(b)       <strong>lodge, on due notice to the employer or other person against</strong> <strong>whom</strong>                  the ruling and order is made  (“the respondent”), an application to the               Labour  Court, together with the affidavit and a claim for the costs of                    the application (which shall not exceed such amount as may be                               prescribed), <strong>for an order directing the respondent</strong> by a certain                                     day (the “restitution day”) not being earlier than thirty days from the                      date that the application is set down for hearing (the                                                 “return day” of the application) <strong>to do or pay what the labour officer                 ordered</strong> under ss (5)(c)(ii) and to pay the costs of the application.</p> <p>(5b)      <strong>If, on the return day of the application, the respondent makes no          appearance</strong> or, after a hearing, the Labour Court <strong>grants the application                 for the order with or without amendment</strong>, the  labour officer concerned    shall,    if the <strong>respondent does not comply fully or at all with the order            by        the restitution day, submit the order for registration </strong>to whichever court    would have had  jurisdiction to make such an order had the matter been     determined by             it, and thereupon the order shall have effect, for purposes of            enforcement, of a civil judgment of the appropriate court. (<em>my emphasis</em>)</p> <p> </p> <p>[11]      My interpretation of the two provisions cited suggests the following procedural steps;</p> <p>a)         the labour officer, after making a ruling in terms s 93(5)(c)(ii) of the Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based,</p> <p>b)         the labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).</p> <p>c)         the labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.</p> <p>d)         should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.</p> <p>e)         on the date of hearing, (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment,</p> <p>f)         thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order, (obtained in default of appearance by the respondent, or after a hearing by the Labour Court), for registration;</p> <p>g)         upon submission of the order to the relevant court for registration, it shall have the same effect for purposes of enforcement, as any civil judgment of that court.</p> <p> </p> <p> </p> <p>[12]     It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling      made against an employee. That this is the case is left in no doubt by the wording of s 93(5)(c)(ii) which specifically provides for a ruling like the one <em>in casu</em> in circumstances where the labour officer finds that the dispute of right in question <strong>‘must be resolved against any employer or other person in a specific manner …’</strong></p> <p>  </p> <p>[13]      Without a clear pronouncement to that effect, there can in    my view be no doubt that       reference to ‘any person’ in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the       confirmation and registration of a draft ruling by the labour officer, which is made in         favour of an employer and against an aggrieved employee.              It follows that the Labour           Court has no jurisdiction to entertain such a matter and should on that basis properly           decline to hear it.</p> <p> </p> <p>[14]      It is noted further that the wording of ss (5b), <em>albeit</em> not specifically stating so, excludes the employee concerned from the confirmation proceedings. This is an employee who would have been an active party in, as well as the instigator of, the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her. In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.</p> <p> </p> <p>[15]      It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests. Even if the nature of the hearing mentioned in ss (5b) is not clear, one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.</p> <p> </p> <p>[16]      The employee on these grounds can in my view properly apply to be joined to the confirmation proceedings in terms of r 33(2) of the Labour Court Rules, SI 150/17. The joinder of a party <em>mero motu</em> by the court is not expressly provided for in r 33, however. I am nevertheless satisfied that this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court in a deserving case, to order <em>mero motu</em> the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings. Such an order would ensure full compliance with the common law rule, <em>audi alteren partem.</em></p> <p> </p> <p>[17]      The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities.</p> <p>Cilliers AC, Loots C and Nel HC Herbstein and van Winsen, <em>The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa</em> (5th edn, Juta &amp;Co Ltd, Cape Town, 2009) vol. 1 at page 215 explain non-joinder by stating as follows:</p> <p>“A third party who has, or may have a direct and substantial interest in any          order the court might make in proceedings or if such an order cannot be          sustained or      carried into effect without prejudicing that party, is a necessary party and should be      joined in the proceedings, unless the court is satisfied that such a person has waived      the right to be joined. …  in fact, when such person is a necessary party in the sense             that the court will not deal with the issues without a joinder being effected, and no           question of discretion or convenience arises.” (<em>my emphasis)</em></p> <p> </p> <p> </p> <p>The meaning of direct and substantial interest is explained at page 217 to 218 as follows:</p> <p>“A ‘direct and substantial interest’ has been held to be ‘an interest in the right      which is the subject-matter of the litigation and not merely a financial interest            which is only an indirect interest in such litigation’. It is ‘a legal interest in the subject      matter of the litigation, excluding an indirect commercial interest only’. The         possibility of such an interest is sufficient, and it is not necessary for the court to             determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter      of the   litigation but also in the outcome of it.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>[18]      It hardly needs emphasis that, <em>albeit</em> not applicable <em>in casu,</em> an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.  The employee in any case would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment. The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order <em>mero motu</em> that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent. </p> <p> </p> <p>[19]      That the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates;</p> <p>“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder,          the court should raise it <em>mero motu</em> to safeguard the interest of third parties and it   should decline to hear the matter until such joinder has been effected, or until the         court is satisfied that the third parties have consented to be bound by the    judgment or have waived their right to be joined.”</p> <p> </p> <p>When this is related to the circumstances of this case, it cannot in my view be contested that the joinder of the employee, Ms Khan, was necessary.</p> <p> </p> <p>[20]      While it is noted <em>in casu</em> that the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored that the court effectively heard evidence from one side of the dispute and not the other, before making its determination. As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling.  It then essentially weighed the respondent’s submissions against what was contained in the affidavit of the labour officer, and made its determination. The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the <em>quantum</em> of the award. Nor, however could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking that the employee had been accorded the unfair advantage of having her case ‘argued’ for her by the labour officer.</p> <p> </p> <p>[21]      There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings.  Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, ss (5b) affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter. It is evident from ss (5b) that before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is in reality not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect. He cannot therefore be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation. Defending the labour officer’s ruling should properly be the province of the person directly affected by it, that is, the employee concerned. In my view, the Labour Court’s confirmation or non-confirmation of the ruling after effectively hearing one side of the dispute is at best an irregularity and at worst a travesty of justice.</p> <p> </p> <p>[22]      Secondly, the procedure presupposes that a ruling made by the labour officer in favour of an employee will meet that employee’s satisfaction. It shuts the door for instance on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that <em>quantum,</em> in confirmation proceedings before the Labour Court. A joinder to the proceedings would accord the employee the opportunity to, as it were ‘cross oppose’ the confirmation proceedings in the desired respect.</p> <p> </p> <p>[23]      Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court for one reason or the other, the employee might wish to take up the matter on appeal. He would however, be hamstrung by the fact that he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order, on his or her behalf.</p> <p> </p> <p>[24]      Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.  One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent. This is what happened <em>in casu</em>. All too often this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal. Equally often, the respondent cited in the appeal, that is the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument.  Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer’s appearance.</p> <p> </p> <p>[25]      Ordinarily where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party. The point has already been made that the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee’s knowledge. The injustice of such an outcome needs no emphasis.</p> <p> </p> <p>[26]      Finally, the appearance of the labour officer as the respondent in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems. In such cases the question of the labour officer’s competence to so appear has arisen. In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis?  It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.</p> <p> </p> <p>[27]      Other aspects of the procedure suggested by ss (5a) and (5b) of s 93 of the Act merit some comment.  Subsection (5b) makes it clear that the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court’s confirmation of the labour officer’s ruling.</p> <p> </p> <p>[28]      Further, while ss (5b) clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution. Without being cited as a party, there would be confusion as to whether the ‘claimant’, that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite <em>locus standi</em>, and more so because ss (5b) does not mandate him to do so. The danger of the Labour Court’s order being rendered a <em>brutum fulmen </em>becomes real.</p> <p> </p> <p>[29]      In conclusion, while one might argue in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view that the absurdities could not have been consciously intended by the legislature.  The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court. The legislature might well wish to consider addressing this and the other concerns set out in this judgment.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>[30]      When all is said and done and in view of the foregoing, it is my finding that there was       a fatal non-joinder of the employee, Ms Khan, to the proceedings <em>a quo</em>. Such proceedings can therefore not be allowed to stand.</p> <p> </p> <p>In the result, the following order is made:</p> <p>1.   The appeal be and is hereby allowed.</p> <ol><li>The proceedings and judgment of the court <em>a quo</em> be and are hereby quashed.</li> <li>The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.</li> <li>Each party shall bear its own costs.</li> </ol><p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>MAKARAU JA:                   </strong>I agree</p> <p>           </p> <p> </p> <p> </p> <p><strong>MAKONI JA:                        </strong>I agree</p> <p> </p> <p> </p> <p><em>Vasco Shamu and Associates</em>, appellant’s legal practitioners</p> <p>This paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights</p> <p>Such employee would, it seems, have to pursue other avenues to appeal against the draft ruling.</p> <p>The hearing is certainly not an appeal against nor a review of, the Labour Officer’s ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer’s ruling.</p> <p>See  Herbstein and van Winsen’s  ‘The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa’ (<em>supra</em>) at  pages 208 to 209.</p> <p>Before the court <em>a quo </em>the labour officer briefly repeated the facts of the dispute and the details of the award she had made.  </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-afe5e063c5ae292358d1d67bef417b0d0a5ea48097d8b5898ae8e0cf131093a1"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><a name="_Hlk507840611" id="_Hlk507840611"><strong>REPORTABLE </strong></a><strong>       (47)  </strong></p> <p> </p> <p><strong>DRUM     CITY     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>BRENDA     GARUDZO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, MAKARAU JA &amp; MAKONI JA</strong></p> <p><strong>HARARE, JUNE 26, 2018 &amp; SEPTEMBER 25, 2018</strong></p> <p> </p> <p><em>V. Shamu</em>, for the appellant</p> <p>No appearance, for respondent</p> <p>             </p> <p><strong>GWAUNZA DCJ</strong></p> <p>[1]        This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant’s former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain acts of misconduct, including theft.</p> <p>           </p> <p><strong>FACTUAL CONSPECTUS</strong></p> <p>[2]        The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3 986-61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.</p> <p> </p> <p>[3]        Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of s 93 of the Labour Act [<em>Chapter 28:01</em>], (“the Act”). The dispute was placed before the respondent for a hearing. It was her case that no proper investigations were conducted into the allegations levelled against her and further, that she was not granted the right to be heard before she was summarily dismissed. She thus claimed damages for unlawful dismissal totalling US$23 253-34.</p> <p> </p> <p>[4]        Before the labour officer, the parties did not agree on Ms Khan’s monthly salary, as the appellant alleged that it was US$750-00 while Ms Khan argued that it was US$1500 - 00. The respondent ruled in favour of Ms Khan on this point and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages <em>in lieu</em> of reinstatement amounting to a total of US$9000-00.</p> <p> </p> <p>[5]        Subsequently, the labour officer applied to the Labour Court in terms of s 93 (5a) of the Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings. The appellant opposed the application but the court <em>a quo</em> after hearing oral argument from the appellant, granted an order confirming the ruling.</p> <p> </p> <p><strong>PROCEEDINGS BEFORE THIS COURT </strong></p> <p>[6]        The appellant was aggrieved by the decision of the court <em>a quo</em> and has appealed against it to this Court. It argues in the main that the court <em>a quo</em> erred in simply confirming the respondent’s award to Ms Khan of US$9 000-00 as damages without fully addressing the principles of law to be applied thereto. It further argued that the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property and in addition, had failed to avail herself for the hearing which led to her dismissal.</p> <p> </p> <p>[7]        The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing. The court observed that the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.  Ms Khan, was not cited in the appeal before this Court. Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.</p> <p>           </p> <p><strong>SECTION 93(5a) – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS</strong></p> <p>[8]        Counsel for the appellant rightly conceded that the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court <em>a quo</em> and in this Court. Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.  The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of s 93 (5a) of the Act. The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer’s draft ruling in terms of s 93(5b) of the Act.</p> <p> </p> <p>[9]        It is noted that prior to the Labour Amendment Act No. 5 of 2015, labour disputes of right would go before a labour officer for conciliation, and if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard. Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party on the other hand, had the right to appeal against the award to the Labour Court.</p> <p> </p> <p>The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of s 93 (5a) and (5b) of the Labour Act was meant to address this mischief.</p> <p> </p> <p>[10]      Subsections 93(5a) and (5b) provide as follows:</p> <p>(5a)      A labour officer who makes a ruling and order in terms of ss (5)(c) shall as                       soon as practicable-</p> <p>(a)        <strong>make an affidavit to that effect incorporating</strong>, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and</p> <p>(b)       <strong>lodge, on due notice to the employer or other person against</strong> <strong>whom</strong>                  the ruling and order is made  (“the respondent”), an application to the               Labour  Court, together with the affidavit and a claim for the costs of                    the application (which shall not exceed such amount as may be                               prescribed), <strong>for an order directing the respondent</strong> by a certain                                     day (the “restitution day”) not being earlier than thirty days from the                      date that the application is set down for hearing (the                                                 “return day” of the application) <strong>to do or pay what the labour officer                 ordered</strong> under ss (5)(c)(ii) and to pay the costs of the application.</p> <p>(5b)      <strong>If, on the return day of the application, the respondent makes no          appearance</strong> or, after a hearing, the Labour Court <strong>grants the application                 for the order with or without amendment</strong>, the  labour officer concerned    shall,    if the <strong>respondent does not comply fully or at all with the order            by        the restitution day, submit the order for registration </strong>to whichever court    would have had  jurisdiction to make such an order had the matter been     determined by             it, and thereupon the order shall have effect, for purposes of            enforcement, of a civil judgment of the appropriate court. (<em>my emphasis</em>)</p> <p> </p> <p>[11]      My interpretation of the two provisions cited suggests the following procedural steps;</p> <p>a)         the labour officer, after making a ruling in terms s 93(5)(c)(ii) of the Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based,</p> <p>b)         the labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).</p> <p>c)         the labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.</p> <p>d)         should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.</p> <p>e)         on the date of hearing, (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment,</p> <p>f)         thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order, (obtained in default of appearance by the respondent, or after a hearing by the Labour Court), for registration;</p> <p>g)         upon submission of the order to the relevant court for registration, it shall have the same effect for purposes of enforcement, as any civil judgment of that court.</p> <p> </p> <p> </p> <p>[12]     It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling      made against an employee. That this is the case is left in no doubt by the wording of s 93(5)(c)(ii) which specifically provides for a ruling like the one <em>in casu</em> in circumstances where the labour officer finds that the dispute of right in question <strong>‘must be resolved against any employer or other person in a specific manner …’</strong></p> <p>  </p> <p>[13]      Without a clear pronouncement to that effect, there can in    my view be no doubt that       reference to ‘any person’ in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the       confirmation and registration of a draft ruling by the labour officer, which is made in         favour of an employer and against an aggrieved employee.              It follows that the Labour           Court has no jurisdiction to entertain such a matter and should on that basis properly           decline to hear it.</p> <p> </p> <p>[14]      It is noted further that the wording of ss (5b), <em>albeit</em> not specifically stating so, excludes the employee concerned from the confirmation proceedings. This is an employee who would have been an active party in, as well as the instigator of, the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her. In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.</p> <p> </p> <p>[15]      It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests. Even if the nature of the hearing mentioned in ss (5b) is not clear, one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.</p> <p> </p> <p>[16]      The employee on these grounds can in my view properly apply to be joined to the confirmation proceedings in terms of r 33(2) of the Labour Court Rules, SI 150/17. The joinder of a party <em>mero motu</em> by the court is not expressly provided for in r 33, however. I am nevertheless satisfied that this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court in a deserving case, to order <em>mero motu</em> the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings. Such an order would ensure full compliance with the common law rule, <em>audi alteren partem.</em></p> <p> </p> <p>[17]      The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities.</p> <p>Cilliers AC, Loots C and Nel HC Herbstein and van Winsen, <em>The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa</em> (5th edn, Juta &amp;Co Ltd, Cape Town, 2009) vol. 1 at page 215 explain non-joinder by stating as follows:</p> <p>“A third party who has, or may have a direct and substantial interest in any          order the court might make in proceedings or if such an order cannot be          sustained or      carried into effect without prejudicing that party, is a necessary party and should be      joined in the proceedings, unless the court is satisfied that such a person has waived      the right to be joined. …  in fact, when such person is a necessary party in the sense             that the court will not deal with the issues without a joinder being effected, and no           question of discretion or convenience arises.” (<em>my emphasis)</em></p> <p> </p> <p> </p> <p>The meaning of direct and substantial interest is explained at page 217 to 218 as follows:</p> <p>“A ‘direct and substantial interest’ has been held to be ‘an interest in the right      which is the subject-matter of the litigation and not merely a financial interest            which is only an indirect interest in such litigation’. It is ‘a legal interest in the subject      matter of the litigation, excluding an indirect commercial interest only’. The         possibility of such an interest is sufficient, and it is not necessary for the court to             determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter      of the   litigation but also in the outcome of it.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>[18]      It hardly needs emphasis that, <em>albeit</em> not applicable <em>in casu,</em> an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.  The employee in any case would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment. The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order <em>mero motu</em> that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent. </p> <p> </p> <p>[19]      That the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates;</p> <p>“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder,          the court should raise it <em>mero motu</em> to safeguard the interest of third parties and it   should decline to hear the matter until such joinder has been effected, or until the         court is satisfied that the third parties have consented to be bound by the    judgment or have waived their right to be joined.”</p> <p> </p> <p>When this is related to the circumstances of this case, it cannot in my view be contested that the joinder of the employee, Ms Khan, was necessary.</p> <p> </p> <p>[20]      While it is noted <em>in casu</em> that the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored that the court effectively heard evidence from one side of the dispute and not the other, before making its determination. As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling.  It then essentially weighed the respondent’s submissions against what was contained in the affidavit of the labour officer, and made its determination. The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the <em>quantum</em> of the award. Nor, however could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking that the employee had been accorded the unfair advantage of having her case ‘argued’ for her by the labour officer.</p> <p> </p> <p>[21]      There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings.  Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, ss (5b) affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter. It is evident from ss (5b) that before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is in reality not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect. He cannot therefore be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation. Defending the labour officer’s ruling should properly be the province of the person directly affected by it, that is, the employee concerned. In my view, the Labour Court’s confirmation or non-confirmation of the ruling after effectively hearing one side of the dispute is at best an irregularity and at worst a travesty of justice.</p> <p> </p> <p>[22]      Secondly, the procedure presupposes that a ruling made by the labour officer in favour of an employee will meet that employee’s satisfaction. It shuts the door for instance on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that <em>quantum,</em> in confirmation proceedings before the Labour Court. A joinder to the proceedings would accord the employee the opportunity to, as it were ‘cross oppose’ the confirmation proceedings in the desired respect.</p> <p> </p> <p>[23]      Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court for one reason or the other, the employee might wish to take up the matter on appeal. He would however, be hamstrung by the fact that he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order, on his or her behalf.</p> <p> </p> <p>[24]      Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.  One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent. This is what happened <em>in casu</em>. All too often this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal. Equally often, the respondent cited in the appeal, that is the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument.  Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer’s appearance.</p> <p> </p> <p>[25]      Ordinarily where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party. The point has already been made that the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee’s knowledge. The injustice of such an outcome needs no emphasis.</p> <p> </p> <p>[26]      Finally, the appearance of the labour officer as the respondent in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems. In such cases the question of the labour officer’s competence to so appear has arisen. In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis?  It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.</p> <p> </p> <p>[27]      Other aspects of the procedure suggested by ss (5a) and (5b) of s 93 of the Act merit some comment.  Subsection (5b) makes it clear that the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court’s confirmation of the labour officer’s ruling.</p> <p> </p> <p>[28]      Further, while ss (5b) clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution. Without being cited as a party, there would be confusion as to whether the ‘claimant’, that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite <em>locus standi</em>, and more so because ss (5b) does not mandate him to do so. The danger of the Labour Court’s order being rendered a <em>brutum fulmen </em>becomes real.</p> <p> </p> <p>[29]      In conclusion, while one might argue in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view that the absurdities could not have been consciously intended by the legislature.  The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court. The legislature might well wish to consider addressing this and the other concerns set out in this judgment.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>[30]      When all is said and done and in view of the foregoing, it is my finding that there was       a fatal non-joinder of the employee, Ms Khan, to the proceedings <em>a quo</em>. Such proceedings can therefore not be allowed to stand.</p> <p> </p> <p>In the result, the following order is made:</p> <p>1.   The appeal be and is hereby allowed.</p> <ol><li>The proceedings and judgment of the court <em>a quo</em> be and are hereby quashed.</li> <li>The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.</li> <li>Each party shall bear its own costs.</li> </ol><p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>MAKARAU JA:                   </strong>I agree</p> <p>           </p> <p> </p> <p> </p> <p><strong>MAKONI JA:                        </strong>I agree</p> <p> </p> <p> </p> <p><em>Vasco Shamu and Associates</em>, appellant’s legal practitioners</p> <p>This paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights</p> <p>Such employee would, it seems, have to pursue other avenues to appeal against the draft ruling.</p> <p>The hearing is certainly not an appeal against nor a review of, the Labour Officer’s ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer’s ruling.</p> <p>See  Herbstein and van Winsen’s  ‘The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa’ (<em>supra</em>) at  pages 208 to 209.</p> <p>Before the court <em>a quo </em>the labour officer briefly repeated the facts of the dispute and the details of the award she had made.  </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:40 +0000 Anonymous 10063 at http://www.zimlii.org City of Gweru v Masinire (SC 56 of 2018, Civil Appeal 45 of 2013) [2018] ZWSC 56 (27 September 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/56 <span class="field field--name-title field--type-string field--label-hidden">City of Gweru v Masinire (SC 56 of 2018, Civil Appeal 45 of 2013) [2018] ZWSC 56 (27 September 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2242" hreflang="x-default">Code of conduct</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/56/2018-zwsc-56.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=48305">2018-zwsc-56.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/56/2018-zwsc-56.pdf" type="application/pdf; length=240820">2018-zwsc-56.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>REPORTABLE</strong><strong>        (50)</strong></p> <p> </p> <p> </p> <p> <strong>CITY     OF     GWERU</strong></p> <p><strong>v</strong></p> <p><strong>RICHARD     MASINIRE</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, MAVANGIRA JA &amp; BHUNU JA</strong></p> <p><strong>HARARE, 29 MAY 2017 &amp; 27 SEPTEMBER 2018</strong></p> <p> </p> <p> </p> <p><em>T Magwaliba, </em>for the appellant</p> <p><em>T Mpofu, </em>for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>BHUNU JA:</strong></p> <p>                        This is an appeal against the judgment of the Labour Court which upheld the respondent’s appeal against dismissal from employment in terms of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006.  The court <em>a quo </em>upheld the respondent’s appeal on the basis that the termination of employment of Senior Urban Council employees is exclusively governed by the Urban Councils Act [<em>Chapter 29:15</em>](“the Act”).  Having come to that conclusion it proceeded to nullify all prior proceedings leading to the respondent’s dismissal from employment.  It held that:</p> <p>“…by virtue of the fact that the Urban Councils Act was ignored and the National code used instead, all the proceedings became a nullity and I hereby allow the appeal with costs.”</p> <p> </p> <p>                        Aggrieved by the above findings and conclusion of law the appellant appealed to this court for relief.  The grounds of appeal are as follows:</p> <p>1.  The court <em>a quo </em>erred in finding that the termination of contracts of employment of senior Urban Council employees is governed exclusively by provisions of the Urban Council Act [<em>Chapter 29:15</em>] to the exclusion of the Labour Act [<em>Chapter 28:15</em>] and the regulations made thereunder.</p> <p> </p> <p>2. The court <em>a quo </em>erred in holding that it had the jurisdiction to hear and determine the matter before it.</p> <p>           </p> <p>Before delving into resolving the contentious issues between the parties, it is necessary to lay down the factual basis of the case which is by and large not in dispute.</p> <p> </p> <p>It is common cause that the respondent was employed as a Chamber Secretary by the appellant City Council.  In that capacity he was a senior official of the respondent, appointed as such in terms of s 133 of the Act.  The appellant dismissed the respondent from its employment following disciplinary proceedings in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006, hereinafter referred to as the (model code).</p> <p> </p> <p> </p> <p>                        The dismissal was approved by the Local Government Board in terms of</p> <p>s 140 (2) of the Act.</p> <p> </p> <p> </p> <p> </p> <p>                        Dissatisfied by the dismissal, the respondent appealed to the court <em>a quo.</em>  The appellant objected to the court’s jurisdiction without success, hence this appeal.  The cardinal issue which emerges for determination is, whether the Urban Councils Act has exclusive jurisdiction over the dismissal of senior Urban Council Employees. In other words the question to be answered is whether the respondent in his capacity as a senior City of Gweru employee was susceptible to disciplinary action under the Labour Act as read with its Regulations.</p> <p> </p> <p>                        Section 140 of the Act provides for the discharge of senior employees of Urban Councils. It states as follows: </p> <p>“140</p> <ol><li>Subject to subsection (2) and to the conditions of service of the senior official concerned, a council may at any time discharge a senior official –</li> </ol><p> </p> <ul><li>Upon notice of not less than three months; or</li> </ul><p> </p> <ul><li>Summarily on the ground of misconduct, dishonesty, negligence or any other ground that would in law justify discharge without notice.</li> </ul><p> </p> <ol><li>A council shall not discharge a senior official unless the discharge has been approved by the Local Board;</li> </ol><p>Provided that the discharge of a medical officer of health shall in addition be subject</p> <p>to the approval of the Minister responsible for health in terms of s 11 of the Public</p> <p>Health Act [<em>Chapter 15:09</em>].”</p> <p> </p> <p> </p> <p> </p> <p>                        Subsections (3), (4) and (5) provide for an elaborate disciplinary procedure for the dismissal of senior employees other than the town clerk on grounds of misconduct. They provide as follows:</p> <p>3)         If it appears to a town clerk that any other senior official of the council has been guilty of such conduct that it is desirable that that official should not be permitted to carry on his work, he—</p> <p> </p> <ul><li>may suspend the official from office and require him forthwith to leave his place of work; and</li> </ul><p> </p> <ul><li>shall forthwith notify the mayor or chairman of the council, as the case may be, in writing, of such suspension.</li> </ul><p> </p> <p> </p> <p>(4)        Upon receipt of a notification of suspension in terms of subsection (3) the mayor or chairperson shall cause the suspension to be reported at the first opportunity to the council.</p> <p>[Subsection substituted by section 27 of Act 1 of 2008.]</p> <p> </p> <p>(5)        Where a council has received a report of a suspension in terms of subsection (4), the council shall without delay—</p> <p> </p> <ul><li>conduct an inquiry or cause an inquiry to be conducted into the circumstances of the suspension; and</li> </ul><p> </p> <ul><li>after considering the results of the inquiry, decide whether or not—</li> </ul><p>(i)         to lift the suspension; or</p> <p>(ii)        to do any one or more of the following—</p> <p>A.         reprimand the senior official concerned;</p> <p>B.         reduce the salary any allowance payable to the senior official;</p> <p>C.         transfer the senior official to another post or grade, the salary of which is less than</p> <p>that received by him or her at the date of the imposition of the penalty;</p> <p>D.         impose a fine not exceeding level five or three months’ salary, which fine may be</p> <p>recovered by deductions from the salary of the senior official;</p> <p>E.         subject to subsection (2), discharge the senior official.</p> <p> </p> <p> </p> <p>It must be noted that while s 140 of the Act confers jurisdiction on the Town Clerk to initiate disciplinary proceedings against other senior Council employees, it makes no provision for the initiation of any disciplinary action against the Town Clerk. The mayor only comes in after the Town Clerk has instituted the disciplinary proceedings.</p> <p> </p> <p> While the Urban Councils Act provides for the dismissal of a Town Clerk, it makes no provision for the procedure to be followed to effect such dismissal. Thus no disciplinary action could have been initiated against the respondent in terms of the Urban Councils Act because the Act does not confer jurisdiction on any other employee or authority to institute disciplinary proceedings against the Town Clerk.</p> <p> </p> <p>It would have been absurd if not ridiculous to expect the Town Clerk to have instituted disciplinary proceedings against himself, particularly in circumstances where he was denying the charges.</p> <p> </p> <p>It is this <em>lacuna</em> in the Act that must have prompted the appellant to turn to the National Model Code for redress. The learned author CH Mucheche in his book <em>A Practical Guide to Labour Law, Conciliation, Mediation &amp; Arbitration in Zimbabwe (</em>2nd ed African Dominion Publications, Harare,) opines that resort to Model Code S.I 15 of 2006 is permissible if there is no applicable domestic code of conduct. Quoting Professor Madhuku the learned author states as follows:</p> <p>“According to Professor <em>Lovemore Madhuku</em> both section 12B (2) of the Labour Act and section 5 (b) of SI 15 of 2006 compel the use of SI 15 of 2006 in the absence of a registered code of conduct. The expression, ‘in the absence of’ must be interpreted purposefully. The mere existence of a registered code of conduct is not sufficient to oust resort to SI 15 of 2006. There must be a registered code of conduct applicable to the case in question. Where there is a registered code of conduct which is inapplicable to the circumstances of the case, there is, ‘the absence of an employment code’ for purposes of section 12B of the Labour Act and section 5 (b) of SI 15 of 2006… One cannot apply a metal straight jacket and conclude that in every situation where an employment code of conduct exists, it automatically follows that such a code of conduct should solely be used to the exclusion of the National code of conduct”.</p> <p> </p> <p>   This is the sort of case which the learned author had in mind when he made the above remarks. The domestic code of conduct being inapplicable to the case at hand, ways had to be found of resolving the labour dispute confronting the parties.</p> <p> </p> <p>This then brings me to the question of whether the Labour Act is applicable as a disciplinary vehicle over a Town Clerk in his capacity as a Senior Official of an Urban Council.</p> <p> </p> <p>Section 3 of the Labour Act confers jurisdiction on the Act over all employees except those it expressly excludes. It reads:</p> <p>“<strong>Application of Act</strong></p> <p>(1)        This Act shall apply to all employers and employees except those whose conditions of</p> <p>employment are otherwise provided for in the Constitution. (<em>My emphasis</em>).</p> <p> </p> <p> </p> <p>(2)        For the avoidance of any doubt, the conditions of employment of members of the Public</p> <p>Service shall be governed by the Public Service Act [<em>Chapter 16:04</em>]<em>.</em></p> <p> </p> <p>(3)        This Act shall not apply to or in respect of—</p> <p> </p> <ul><li>members of a disciplined force of the State; or</li> </ul><p> </p> <ul><li>members of any disciplined force of a foreign State who are in Zimbabwe under any</li> </ul><p>agreement concluded between the Government and the Government of that foreign State; or</p> <p> </p> <ul><li>such other employees of the State as the President may designate by statutory instrument”.</li> </ul><p> </p> <p> </p> <p>     Upon a proper reading of the above section, it is self-evident that the Labour Act applies to all employees except those in categories that are expressly excluded therein. These are:</p> <ol><li>Those whose conditions of employment are otherwise provided for in the Constitution.</li> <li>Members of the Public Service as read with s 26.</li> <li>Members of a disciplinary force of the State.</li> <li>Any other employee designated by the President in a statutory instrument.</li> </ol><p>The respondent not falling under any one of the above excluded categories, it follows that the Labour Act applies to him. The employer was therefore perfectly within its rights to resort to the Model code SI 15 of 2006. </p> <p> </p> <p> For that reason, the court <em>a quo</em> misdirected itself and fell into error when it nullified the prior proceedings on the basis that the Labour Act was not applicable to senior urban council employees.</p> <p> </p> <p>     Section 12B of the Labour Act Provides for laid down procedures for the dismissal of any employee falling within its jurisdiction as follows:</p> <p><strong>“12B Dismissal </strong></p> <p> </p> <ol><li>Every employee has the right not to be unfairly</li> <li> </li> <li>An employee is unfairly dismissed –</li> </ol><p> </p> <ul><li>If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or</li> <li>In the absence of an employment code, the employer shall comply with the model code made in terms of section 101 (9).</li> </ul><p><strong>[Paragraph substituted by section 7 of Act 7 of</strong> <strong>2005</strong><strong>]</strong></p> <p> </p> <ol><li>An employee is deemed to have been unfairly dismissed</li> </ol><p>–</p> <p> </p> <ul><li>If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;</li> <li>If, on termination of an employment contract of fixed duration, the employee –</li> </ul><ul><li>had legitimate expectation of being re-engaged; and</li> <li>another person was engaged instead of the employee.</li> </ul><ol><li>In any court proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employees previous disciplinary record, the nature of the employment and any special personal circumstances of the employee. (My underlining)</li> </ol><p>[Section substituted by section 10 of Act 17 of 2002].”</p> <p> </p> <p> </p> <p>     The Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 is the model code envisaged in s 12B (2) (b) above. Ordinarily it is meant to provide a platform for settling labour disputes where there is no internal or domestic disciplinary code of conduct at the work place.</p> <p> </p> <p>Considering that it is undesirable for parties to a dispute to be left without an appropriate mechanism of resolving their labour disputes, like professor <em>Madhuku</em> and <em>CH</em> <em>Mucheche</em>, I consider that s 12B (2) (b) should be given a broad purposeful interpretation to include circumstances where an existing internal code of conduct or dispute resolution mechanism cannot for justifiable reasons apply to a particular case. It therefore appears to me that the legislator intended the model code of conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate for good reason to apply any other dispute resolution mode. To that extent it is a universal disciplinary code of conduct fitting all circumstances according to the exigencies of each case within the confines of the Labour Act.  </p> <p> </p> <p> </p> <p>The cardinal question which then arises for determination is whether the Urban Councils Act excludes the jurisdiction of the Labour Act in the dismissal of senior council employees such as the respondent in this case.</p> <p> </p> <p> Historically, prior to 2005 this court had consistently held that senior employees of Urban Councils were not susceptible to dismissal in terms of the Labour Act. See the leading case of <em>City of</em> <em>Mutare V Matamisa</em> 1998 (1) ZLR 512.</p> <p> </p> <p>Following the decision in the <em>Matamisa</em> case and a host of others based on the law prior to 2005 the lawmaker in its wisdom amended the law in two fundamental respects under the Labour Amendment Act, 2005 as follows:</p> <p> </p> <ol><li>It made the Labour Act superior to all other enactments inconsistent with it. In other words, it takes precedence and overrides any other subordinate statutes in conflict with it.</li> </ol><p> </p> <ol><li>The Act now applies to all employees save those it expressly excludes from its ambit.</li> </ol><p> </p> <p>Sections 2A and 3 of the Labour Act as amended now read:</p> <p> </p> <p>“2A.  <strong> Purpose of Act</strong></p> <p> </p> <p> </p> <ol><li>This Act shall prevail over any other enactment inconsistent with it.</li> </ol><p> </p> <p> </p> <p> </p> <p><strong>3. Application of Act</strong></p> <p> </p> <p>(1)  This Act shall apply to all employers and employees except those whose conditions of</p> <p>                   employment are otherwise provided for in the Constitution.</p> <p> </p> <p>(2) For the avoidance of any doubt, the conditions of employment of members of the Public</p> <p>Service shall be governed by the Public Service Act [<em>Chapter 16:04</em>]<em>.</em></p> <p> </p> <ol><li>This Act shall not apply to or in respect of—</li> </ol><p> </p> <ul><li>members of a disciplined force of the State; or</li> </ul><p> </p> <ul><li>members of any disciplined force of a foreign State who are in Zimbabwe under any</li> </ul><p>agreement concluded between the Government and the Government of that foreign State; </p> <p>or</p> <p> </p> <p>(<em>c</em>) such other employees of the State as the President may designate by statutory instrument”  (My underlining)</p> <p> </p> <p> </p> <p> The section is couched in clear and unambiguous peremptory terms, such that the problem of interpretation does not arise at all. All that the lawgiver is saying is that the Labour Act applies to all employees except those it expressly excludes from its domain. In other words, the Labour Act applies to all employees except those whom the legislator has expressly excluded from its application.</p> <p> </p> <p>It must however be noted that the Public Service Act [<em>Chapter 16:04</em>]is different from the Urban councils Act in that it expressly confers appellate jurisdiction on the Labour Court under s 26 in respect of matters initially determined in terms of the Public service Act [<em>Chapter 16:04</em>].</p> <p> </p> <p>Now, for the respondent to escape the omnibus application of the Labour Act, he must show that he is one of those employees expressly excluded under s 3 of the Labour Act.</p> <p> </p> <p>It is plain that the respondent in the court aquo dismally failed to prove on a balance of probabilities that he is one of those employees expressly excluded from the application of the Act. His argument was that the Labour Act does not apply to him because his contract of employment is exclusively governed by the Urban Councils Act.</p> <p> </p> <p>That line of argument is defective and unsustainable at law, because the Urban Councils Act is subservient to the Labour Act. In terms of s 2A of the Labour Act the Legislator has decreed it to prevail over any other enactment inconsistent with it.</p> <p> </p> <p>What this means is that whatever the provisions of the Urban Councils Act might be, they cannot exclude the application of the Labour Act to any employee. It is only the Constitution and the President by statutory instrument that can override the application of the Act over any employee.  </p> <p> </p> <p> While the cases decided before the advent of the Labour Amendment Act, 2005 were correct at that time in holding that the Labour Act was inapplicable to Senior Urban Council employees, those judgments have since been overtaken by events. For that reason, since the promulgation of the 2005 Amendment they have ceased to be valid and binding going forward.</p> <p> </p> <p>That being the case, the court <em>a quo</em> fell into error and misdirected itself when it upheld the respondent’s appeal on the basis that the proceedings in terms of the labour Act were a nullity. The proceedings in terms of the Labour Act were valid notwithstanding the provisions of the Urban Councils Act because the Respondent did not have a registered code of conduct and the disciplinary procedures laid down in the Urban Councils Act were inapplicable to the appellant in his capacity as Town clerk.</p> <p> </p> <p>For the foregoing reasons the appeal can only succeed. The judgment of the court <em>a quo</em> will have to be set aside thereby clothing it with the necessary jurisdiction to determine the appeal in terms of the Labour Act. The merits and demerits of the appeal are exclusively within the jurisdiction of the Labour Court.</p> <p> </p> <p>There being no reason to depart from the general rule that costs follow the result, the general rule shall prevail.</p> <p> </p> <p>It is accordingly ordered that:</p> <p> </p> <ol><li>The appeal be and is hereby allowed with costs.</li> </ol><p> </p> <ol><li>The Labour Court judgment number LC/MT/92/12 be and is hereby set aside.</li> </ol><p> </p> <ol><li>The matter is remitted to the Labour Court for it to proceed to hear and determine the appeal under case number LC/MT/120/2011 on the merits.</li> </ol><p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>GWAUNZA DCJ</strong>                                                I agree</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA</strong>                                              I agree</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Danziger &amp; Partners</em> appellant’s legal practitioners</p> <p> </p> <p><em>Messrs J Mambara</em> <em>&amp; Partners</em> respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-596c3839ba06f7f974f6d78c0b09cdab33125a6fd0bf8ac29fabefa34d0e121a"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>REPORTABLE</strong><strong>        (50)</strong></p> <p> </p> <p> </p> <p> <strong>CITY     OF     GWERU</strong></p> <p><strong>v</strong></p> <p><strong>RICHARD     MASINIRE</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, MAVANGIRA JA &amp; BHUNU JA</strong></p> <p><strong>HARARE, 29 MAY 2017 &amp; 27 SEPTEMBER 2018</strong></p> <p> </p> <p> </p> <p><em>T Magwaliba, </em>for the appellant</p> <p><em>T Mpofu, </em>for the respondent</p> <p> </p> <p> </p> <p> </p> <p><strong>BHUNU JA:</strong></p> <p>                        This is an appeal against the judgment of the Labour Court which upheld the respondent’s appeal against dismissal from employment in terms of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006.  The court <em>a quo </em>upheld the respondent’s appeal on the basis that the termination of employment of Senior Urban Council employees is exclusively governed by the Urban Councils Act [<em>Chapter 29:15</em>](“the Act”).  Having come to that conclusion it proceeded to nullify all prior proceedings leading to the respondent’s dismissal from employment.  It held that:</p> <p>“…by virtue of the fact that the Urban Councils Act was ignored and the National code used instead, all the proceedings became a nullity and I hereby allow the appeal with costs.”</p> <p> </p> <p>                        Aggrieved by the above findings and conclusion of law the appellant appealed to this court for relief.  The grounds of appeal are as follows:</p> <p>1.  The court <em>a quo </em>erred in finding that the termination of contracts of employment of senior Urban Council employees is governed exclusively by provisions of the Urban Council Act [<em>Chapter 29:15</em>] to the exclusion of the Labour Act [<em>Chapter 28:15</em>] and the regulations made thereunder.</p> <p> </p> <p>2. The court <em>a quo </em>erred in holding that it had the jurisdiction to hear and determine the matter before it.</p> <p>           </p> <p>Before delving into resolving the contentious issues between the parties, it is necessary to lay down the factual basis of the case which is by and large not in dispute.</p> <p> </p> <p>It is common cause that the respondent was employed as a Chamber Secretary by the appellant City Council.  In that capacity he was a senior official of the respondent, appointed as such in terms of s 133 of the Act.  The appellant dismissed the respondent from its employment following disciplinary proceedings in terms of the Labour (National Employment Code of Conduct) Regulations SI 15 of 2006, hereinafter referred to as the (model code).</p> <p> </p> <p> </p> <p>                        The dismissal was approved by the Local Government Board in terms of</p> <p>s 140 (2) of the Act.</p> <p> </p> <p> </p> <p> </p> <p>                        Dissatisfied by the dismissal, the respondent appealed to the court <em>a quo.</em>  The appellant objected to the court’s jurisdiction without success, hence this appeal.  The cardinal issue which emerges for determination is, whether the Urban Councils Act has exclusive jurisdiction over the dismissal of senior Urban Council Employees. In other words the question to be answered is whether the respondent in his capacity as a senior City of Gweru employee was susceptible to disciplinary action under the Labour Act as read with its Regulations.</p> <p> </p> <p>                        Section 140 of the Act provides for the discharge of senior employees of Urban Councils. It states as follows: </p> <p>“140</p> <ol><li>Subject to subsection (2) and to the conditions of service of the senior official concerned, a council may at any time discharge a senior official –</li> </ol><p> </p> <ul><li>Upon notice of not less than three months; or</li> </ul><p> </p> <ul><li>Summarily on the ground of misconduct, dishonesty, negligence or any other ground that would in law justify discharge without notice.</li> </ul><p> </p> <ol><li>A council shall not discharge a senior official unless the discharge has been approved by the Local Board;</li> </ol><p>Provided that the discharge of a medical officer of health shall in addition be subject</p> <p>to the approval of the Minister responsible for health in terms of s 11 of the Public</p> <p>Health Act [<em>Chapter 15:09</em>].”</p> <p> </p> <p> </p> <p> </p> <p>                        Subsections (3), (4) and (5) provide for an elaborate disciplinary procedure for the dismissal of senior employees other than the town clerk on grounds of misconduct. They provide as follows:</p> <p>3)         If it appears to a town clerk that any other senior official of the council has been guilty of such conduct that it is desirable that that official should not be permitted to carry on his work, he—</p> <p> </p> <ul><li>may suspend the official from office and require him forthwith to leave his place of work; and</li> </ul><p> </p> <ul><li>shall forthwith notify the mayor or chairman of the council, as the case may be, in writing, of such suspension.</li> </ul><p> </p> <p> </p> <p>(4)        Upon receipt of a notification of suspension in terms of subsection (3) the mayor or chairperson shall cause the suspension to be reported at the first opportunity to the council.</p> <p>[Subsection substituted by section 27 of Act 1 of 2008.]</p> <p> </p> <p>(5)        Where a council has received a report of a suspension in terms of subsection (4), the council shall without delay—</p> <p> </p> <ul><li>conduct an inquiry or cause an inquiry to be conducted into the circumstances of the suspension; and</li> </ul><p> </p> <ul><li>after considering the results of the inquiry, decide whether or not—</li> </ul><p>(i)         to lift the suspension; or</p> <p>(ii)        to do any one or more of the following—</p> <p>A.         reprimand the senior official concerned;</p> <p>B.         reduce the salary any allowance payable to the senior official;</p> <p>C.         transfer the senior official to another post or grade, the salary of which is less than</p> <p>that received by him or her at the date of the imposition of the penalty;</p> <p>D.         impose a fine not exceeding level five or three months’ salary, which fine may be</p> <p>recovered by deductions from the salary of the senior official;</p> <p>E.         subject to subsection (2), discharge the senior official.</p> <p> </p> <p> </p> <p>It must be noted that while s 140 of the Act confers jurisdiction on the Town Clerk to initiate disciplinary proceedings against other senior Council employees, it makes no provision for the initiation of any disciplinary action against the Town Clerk. The mayor only comes in after the Town Clerk has instituted the disciplinary proceedings.</p> <p> </p> <p> While the Urban Councils Act provides for the dismissal of a Town Clerk, it makes no provision for the procedure to be followed to effect such dismissal. Thus no disciplinary action could have been initiated against the respondent in terms of the Urban Councils Act because the Act does not confer jurisdiction on any other employee or authority to institute disciplinary proceedings against the Town Clerk.</p> <p> </p> <p>It would have been absurd if not ridiculous to expect the Town Clerk to have instituted disciplinary proceedings against himself, particularly in circumstances where he was denying the charges.</p> <p> </p> <p>It is this <em>lacuna</em> in the Act that must have prompted the appellant to turn to the National Model Code for redress. The learned author CH Mucheche in his book <em>A Practical Guide to Labour Law, Conciliation, Mediation &amp; Arbitration in Zimbabwe (</em>2nd ed African Dominion Publications, Harare,) opines that resort to Model Code S.I 15 of 2006 is permissible if there is no applicable domestic code of conduct. Quoting Professor Madhuku the learned author states as follows:</p> <p>“According to Professor <em>Lovemore Madhuku</em> both section 12B (2) of the Labour Act and section 5 (b) of SI 15 of 2006 compel the use of SI 15 of 2006 in the absence of a registered code of conduct. The expression, ‘in the absence of’ must be interpreted purposefully. The mere existence of a registered code of conduct is not sufficient to oust resort to SI 15 of 2006. There must be a registered code of conduct applicable to the case in question. Where there is a registered code of conduct which is inapplicable to the circumstances of the case, there is, ‘the absence of an employment code’ for purposes of section 12B of the Labour Act and section 5 (b) of SI 15 of 2006… One cannot apply a metal straight jacket and conclude that in every situation where an employment code of conduct exists, it automatically follows that such a code of conduct should solely be used to the exclusion of the National code of conduct”.</p> <p> </p> <p>   This is the sort of case which the learned author had in mind when he made the above remarks. The domestic code of conduct being inapplicable to the case at hand, ways had to be found of resolving the labour dispute confronting the parties.</p> <p> </p> <p>This then brings me to the question of whether the Labour Act is applicable as a disciplinary vehicle over a Town Clerk in his capacity as a Senior Official of an Urban Council.</p> <p> </p> <p>Section 3 of the Labour Act confers jurisdiction on the Act over all employees except those it expressly excludes. It reads:</p> <p>“<strong>Application of Act</strong></p> <p>(1)        This Act shall apply to all employers and employees except those whose conditions of</p> <p>employment are otherwise provided for in the Constitution. (<em>My emphasis</em>).</p> <p> </p> <p> </p> <p>(2)        For the avoidance of any doubt, the conditions of employment of members of the Public</p> <p>Service shall be governed by the Public Service Act [<em>Chapter 16:04</em>]<em>.</em></p> <p> </p> <p>(3)        This Act shall not apply to or in respect of—</p> <p> </p> <ul><li>members of a disciplined force of the State; or</li> </ul><p> </p> <ul><li>members of any disciplined force of a foreign State who are in Zimbabwe under any</li> </ul><p>agreement concluded between the Government and the Government of that foreign State; or</p> <p> </p> <ul><li>such other employees of the State as the President may designate by statutory instrument”.</li> </ul><p> </p> <p> </p> <p>     Upon a proper reading of the above section, it is self-evident that the Labour Act applies to all employees except those in categories that are expressly excluded therein. These are:</p> <ol><li>Those whose conditions of employment are otherwise provided for in the Constitution.</li> <li>Members of the Public Service as read with s 26.</li> <li>Members of a disciplinary force of the State.</li> <li>Any other employee designated by the President in a statutory instrument.</li> </ol><p>The respondent not falling under any one of the above excluded categories, it follows that the Labour Act applies to him. The employer was therefore perfectly within its rights to resort to the Model code SI 15 of 2006. </p> <p> </p> <p> For that reason, the court <em>a quo</em> misdirected itself and fell into error when it nullified the prior proceedings on the basis that the Labour Act was not applicable to senior urban council employees.</p> <p> </p> <p>     Section 12B of the Labour Act Provides for laid down procedures for the dismissal of any employee falling within its jurisdiction as follows:</p> <p><strong>“12B Dismissal </strong></p> <p> </p> <ol><li>Every employee has the right not to be unfairly</li> <li> </li> <li>An employee is unfairly dismissed –</li> </ol><p> </p> <ul><li>If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or</li> <li>In the absence of an employment code, the employer shall comply with the model code made in terms of section 101 (9).</li> </ul><p><strong>[Paragraph substituted by section 7 of Act 7 of</strong> <strong>2005</strong><strong>]</strong></p> <p> </p> <ol><li>An employee is deemed to have been unfairly dismissed</li> </ol><p>–</p> <p> </p> <ul><li>If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;</li> <li>If, on termination of an employment contract of fixed duration, the employee –</li> </ul><ul><li>had legitimate expectation of being re-engaged; and</li> <li>another person was engaged instead of the employee.</li> </ul><ol><li>In any court proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employees previous disciplinary record, the nature of the employment and any special personal circumstances of the employee. (My underlining)</li> </ol><p>[Section substituted by section 10 of Act 17 of 2002].”</p> <p> </p> <p> </p> <p>     The Labour (National Employment Code of Conduct) Regulations SI 15 of 2006 is the model code envisaged in s 12B (2) (b) above. Ordinarily it is meant to provide a platform for settling labour disputes where there is no internal or domestic disciplinary code of conduct at the work place.</p> <p> </p> <p>Considering that it is undesirable for parties to a dispute to be left without an appropriate mechanism of resolving their labour disputes, like professor <em>Madhuku</em> and <em>CH</em> <em>Mucheche</em>, I consider that s 12B (2) (b) should be given a broad purposeful interpretation to include circumstances where an existing internal code of conduct or dispute resolution mechanism cannot for justifiable reasons apply to a particular case. It therefore appears to me that the legislator intended the model code of conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate for good reason to apply any other dispute resolution mode. To that extent it is a universal disciplinary code of conduct fitting all circumstances according to the exigencies of each case within the confines of the Labour Act.  </p> <p> </p> <p> </p> <p>The cardinal question which then arises for determination is whether the Urban Councils Act excludes the jurisdiction of the Labour Act in the dismissal of senior council employees such as the respondent in this case.</p> <p> </p> <p> Historically, prior to 2005 this court had consistently held that senior employees of Urban Councils were not susceptible to dismissal in terms of the Labour Act. See the leading case of <em>City of</em> <em>Mutare V Matamisa</em> 1998 (1) ZLR 512.</p> <p> </p> <p>Following the decision in the <em>Matamisa</em> case and a host of others based on the law prior to 2005 the lawmaker in its wisdom amended the law in two fundamental respects under the Labour Amendment Act, 2005 as follows:</p> <p> </p> <ol><li>It made the Labour Act superior to all other enactments inconsistent with it. In other words, it takes precedence and overrides any other subordinate statutes in conflict with it.</li> </ol><p> </p> <ol><li>The Act now applies to all employees save those it expressly excludes from its ambit.</li> </ol><p> </p> <p>Sections 2A and 3 of the Labour Act as amended now read:</p> <p> </p> <p>“2A.  <strong> Purpose of Act</strong></p> <p> </p> <p> </p> <ol><li>This Act shall prevail over any other enactment inconsistent with it.</li> </ol><p> </p> <p> </p> <p> </p> <p><strong>3. Application of Act</strong></p> <p> </p> <p>(1)  This Act shall apply to all employers and employees except those whose conditions of</p> <p>                   employment are otherwise provided for in the Constitution.</p> <p> </p> <p>(2) For the avoidance of any doubt, the conditions of employment of members of the Public</p> <p>Service shall be governed by the Public Service Act [<em>Chapter 16:04</em>]<em>.</em></p> <p> </p> <ol><li>This Act shall not apply to or in respect of—</li> </ol><p> </p> <ul><li>members of a disciplined force of the State; or</li> </ul><p> </p> <ul><li>members of any disciplined force of a foreign State who are in Zimbabwe under any</li> </ul><p>agreement concluded between the Government and the Government of that foreign State; </p> <p>or</p> <p> </p> <p>(<em>c</em>) such other employees of the State as the President may designate by statutory instrument”  (My underlining)</p> <p> </p> <p> </p> <p> The section is couched in clear and unambiguous peremptory terms, such that the problem of interpretation does not arise at all. All that the lawgiver is saying is that the Labour Act applies to all employees except those it expressly excludes from its domain. In other words, the Labour Act applies to all employees except those whom the legislator has expressly excluded from its application.</p> <p> </p> <p>It must however be noted that the Public Service Act [<em>Chapter 16:04</em>]is different from the Urban councils Act in that it expressly confers appellate jurisdiction on the Labour Court under s 26 in respect of matters initially determined in terms of the Public service Act [<em>Chapter 16:04</em>].</p> <p> </p> <p>Now, for the respondent to escape the omnibus application of the Labour Act, he must show that he is one of those employees expressly excluded under s 3 of the Labour Act.</p> <p> </p> <p>It is plain that the respondent in the court aquo dismally failed to prove on a balance of probabilities that he is one of those employees expressly excluded from the application of the Act. His argument was that the Labour Act does not apply to him because his contract of employment is exclusively governed by the Urban Councils Act.</p> <p> </p> <p>That line of argument is defective and unsustainable at law, because the Urban Councils Act is subservient to the Labour Act. In terms of s 2A of the Labour Act the Legislator has decreed it to prevail over any other enactment inconsistent with it.</p> <p> </p> <p>What this means is that whatever the provisions of the Urban Councils Act might be, they cannot exclude the application of the Labour Act to any employee. It is only the Constitution and the President by statutory instrument that can override the application of the Act over any employee.  </p> <p> </p> <p> While the cases decided before the advent of the Labour Amendment Act, 2005 were correct at that time in holding that the Labour Act was inapplicable to Senior Urban Council employees, those judgments have since been overtaken by events. For that reason, since the promulgation of the 2005 Amendment they have ceased to be valid and binding going forward.</p> <p> </p> <p>That being the case, the court <em>a quo</em> fell into error and misdirected itself when it upheld the respondent’s appeal on the basis that the proceedings in terms of the labour Act were a nullity. The proceedings in terms of the Labour Act were valid notwithstanding the provisions of the Urban Councils Act because the Respondent did not have a registered code of conduct and the disciplinary procedures laid down in the Urban Councils Act were inapplicable to the appellant in his capacity as Town clerk.</p> <p> </p> <p>For the foregoing reasons the appeal can only succeed. The judgment of the court <em>a quo</em> will have to be set aside thereby clothing it with the necessary jurisdiction to determine the appeal in terms of the Labour Act. The merits and demerits of the appeal are exclusively within the jurisdiction of the Labour Court.</p> <p> </p> <p>There being no reason to depart from the general rule that costs follow the result, the general rule shall prevail.</p> <p> </p> <p>It is accordingly ordered that:</p> <p> </p> <ol><li>The appeal be and is hereby allowed with costs.</li> </ol><p> </p> <ol><li>The Labour Court judgment number LC/MT/92/12 be and is hereby set aside.</li> </ol><p> </p> <ol><li>The matter is remitted to the Labour Court for it to proceed to hear and determine the appeal under case number LC/MT/120/2011 on the merits.</li> </ol><p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>GWAUNZA DCJ</strong>                                                I agree</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA</strong>                                              I agree</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Danziger &amp; Partners</em> appellant’s legal practitioners</p> <p> </p> <p><em>Messrs J Mambara</em> <em>&amp; Partners</em> respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:38 +0000 Anonymous 10062 at http://www.zimlii.org Masvikeni v National Blood Service Zimbabwe (SC 28 of 2019, Civil Appeal SC 113 of 2015) [2019] ZWSC 28 (04 March 2019); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/28 <span class="field field--name-title field--type-string field--label-hidden">Masvikeni v National Blood Service Zimbabwe (SC 28 of 2019, Civil Appeal SC 113 of 2015) [2019] ZWSC 28 (04 March 2019);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2237" hreflang="x-default">Appeal against determination of disciplinary committee under disciplinary code</a></div> <div class="field__item"><a href="/taxonomy/term/2319" hreflang="x-default">Breach of confidence by servant</a></div> <div class="field__item"><a href="/taxonomy/term/2103" hreflang="x-default">Disciplinary proceedings</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:37</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2019/28/2019-zwsc-28.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27325">2019-zwsc-28.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2019/28/2019-zwsc-28.pdf" type="application/pdf; length=175106">2019-zwsc-28.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>REPORTABLE</strong><strong>        (26)</strong></p> <p> </p> <p><strong>EMMANUEL     MASVIKENI</strong></p> <p><strong>v</strong></p> <p><strong>NATIONAL     BLOOD     SERVICE     ZIMBABWE</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, GARWE JA &amp; MAVANGIRA JA</strong></p> <p><strong>HARARE, </strong>NOVEMBER 10, 2017 AND MARCH 4, 2019</p> <p>                                                                                                                    </p> <p> </p> <p><em>M. Nkomo</em>, for the Appellant</p> <p><em>T. Zhuwarara </em>with<em> R.G. Zhuwarara</em>, for the Respondent</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA</strong>:        This is an appeal against the whole decision of the Labour Court confirming the dismissal of the appellant from the respondent’s employ. </p> <p> </p> <p><strong>Factual Background</strong></p> <p>The appellant was employed by the respondent as a Blood Procurement Manager from October 2001 to April 2012 when he was dismissed. Sometime in 2011, anonymous emails containing divisive and damning allegations against certain staff members as well as his superior, the Chief Executive Officer of the respondent, were circulated and sent to various employees of the respondent. The respondent conducted some investigations and concluded that the appellant was the author of the anonymous emails.</p> <p> </p> <p>Consequently, in October 2011, the appellant was charged in terms of the “National Blood Service Zimbabwe Code of Conduct” (sic), (“the Code”), with the following acts of misconduct:</p> <ol><li>Section 3(c)(vi): Writing and publishing anonymous letters which damaged the reputation of his superior or colleague</li> <li>Section 4(a)(ii): Deliberately giving untrue and misleading information about his superior concerning his professional behavior by alleging that he distributed diseased blood.</li> <li>Section 4(a)(vii): Accusing his superior of nepotism in the anonymous letters he published.</li> </ol><p> </p> <p>A written invitation to the appellant to respond to the allegations met no response. On 16 November 2011 he was suspended from duty with no salary.</p> <p> </p> <p>A disciplinary hearing was then conducted on 13 April 2012. Despite having been properly served with the notice of hearing, the appellant did not attend the hearing. After making its deliberations on the evidence and papers that were before it, the disciplinary committee found the appellant guilty of all 3 charges. The appellant was invited to make submissions in mitigation before the imposition of a penalty. The invitation met no response. Eventually, on 26 April 2012, the appellant was advised of the penalty imposed on him. On the first charge a final written warning was found to be the appropriate penalty. On the second charge the penalty was dismissal. On the third charge the penalty was also dismissal. </p> <p> </p> <p>On the 30th of April 2012, the appellant lodged an internal appeal to the Finance and Administration Manager in terms of the Code. The Manager dismissed the appeal in a reasoned ruling for lack of merit.</p> <p> </p> <p>Aggrieved thereby and in terms of the same Code, the appellant appealed to the Board Chairman. The appellant then also requested the Board Chairman to recuse himself from the matter. The basis of the application for recusal was that the Board Chairman had previously been involved in the matter leading up to the appellant being charged and subsequently dismissed. The Board Chairman recused himself from the matter and indicated that “(T)he appeal would be referred to the Labour Court in accordance with the provisions of the Code of Conduct.” However, this did not happen.</p> <p> </p> <p>In February 2013, the appellant eventually referred the matter to a Labour Officer in terms of the Labour Act. The parties did not settle at conciliation and subsequently the matter was referred to arbitration.</p> <p> </p> <p>On 30 July 2013, the Arbitrator ordered the respondent to constitute an Appeals Committee to hear and determine the appellant’s appeal against the decision of the Finance and Administration Manager which had confirmed the appellant’s dismissal from employment as decided by the disciplinary committee. </p> <p> </p> <p>The Appeals Committee was set up and, on 5 August 2013, it heard the appellant’s appeal and came to the conclusion that the appellant’s appeal lacked merit and it therefore dismissed it.  It was against that decision of the Appeals Committee that the appellant noted an appeal to the court <em>a quo</em>.</p> <p>The appellant raised seven grounds of appeal in the court <em>a quo</em>. Four of the grounds related to the composition and appointment of the disciplinary committee. Although there was no appeals officer involved at any stage in the matter, curiously, one of the appellant’s grounds of appeal was couched in the following terms: “The Appeals Committee erred at law and misdirected itself in upholding the decision of the Appeals officer and Disciplinary Committee despite clear evidence of bias in both the Appeals Officer and the Disciplinary Committee” (sic). From a reading of the papers, it can safely be assumed that the reference to an “Appeals Officer” ought in fact to be a reference to the Appeals Committee. This is so because it is the Appeals Committee which heard the appellant’s appeal against the decision of the Finance and Administration Manager to whom he had appealed against the decision of the disciplinary committee.</p> <p> </p> <p>The appellant also challenged the determination made by the Appeals Committee which upheld the decision of the disciplinary committee to the effect that he was not entitled to legal representation in terms of the Code of Conduct.</p> <p> </p> <p>In the rest of his grounds of appeal, the appellant challenged the finding that the information which was contained in the emails was untrue, erroneous or misleading and that it had the effect of damaging his superior’s or anyone’s reputation. He also sought to challenge the interpretation given by the disciplinary committee to s 4 (a) (vii) of the Code of Conduct which interpretation was confirmed by the Appeals Committee thereby leading to the upholding of his conviction. In terms of the Code the following is a dismissible misconduct: “Any other act of prejudice towards the organisation, fellow members of staff, or members of the public, such as racism, tribalism, nepotism, sexism and regionalism.” The appellant’s contention in this regard is that on a proper interpretation of the provision he ought not to have been charged. Rather, it is the person that he accused of practicing nepotism that ought to have been charged with the misconduct. The conflicting contentions are dealt with in more detail at pp 13 – 15 of this judgment under the heading: “<strong>2. Whether or not the court <em>a quo </em>wrongly interpreted section 4 (a) (vii) of the respondent’s code of conduct”. </strong> </p> <p> </p> <p>The court <em>a quo</em> found that the appellant had admitted to publishing the anonymous emails and in so doing meant to damage the name of a superior or colleague. The court further held that the interpretation that had been attributed to s 4 (a) (vii) was correct as it was clear that the listed items in the provision were not exhaustive. The court thus concluded that the appellant’s appeal lacked merit and dismissed it.</p> <p> </p> <p><strong>PROCEEDINGS BEFORE THIS COURT</strong></p> <p>The appellant was aggrieved by these findings and conclusion of the court <em>a quo</em>, hence the present appeal.</p> <p> </p> <p>The appellant’s grounds of appeal are crafted as follows:</p> <ol><li>The court <em>a quo</em> seriously misdirected itself on the facts when it concluded that <strong>“the challenged grounds for review relate to the composition of the appeals committee”</strong>. This amounts to a misdirection in law in that it led the court to follow a wrong path and reach a decision which is bad at law. (sic)</li> <li>The court <em>a quo</em> misdirected itself at law when it focused on the improper appointment of the disciplinary committee, per se, rather than determining the substantive correctness of the decision of the Appeals Committee whose decision was being appealed against.</li> <li>The court <em>a quo</em> misdirected itself in dismissing grounds of appeal one, two and three as grounds for review despite the clear and unambiguous language to the effect that it was the decision of the appeals committee which was being challenged.</li> <li>The court <em>a quo</em> grossly misdirected itself when it ruled that <strong>“it is not in issue that the appellant was the author of the emails. This was admitted ...”</strong> Nothing in the submissions placed before her supported this conclusion. This error of fact is so fundamental that it amounts to a misdirection at law. (sic)</li> <li>The court <em>a quo</em> grossly erred and misdirected itself when it concluded that the appellant ought to have established the truthfulness of what he allegedly published. This would be tantamount to turning the established principle that <strong>“he who alleges must prove”</strong> on its head. It is a misdirection at law. (sic)</li> <li>The court <em>a quo</em> grossly erred and misdirected itself in its interpretation of s 4 (a) (vii) of the Code of Conduct and failing to appreciate that the charge would only stick if the alleged offender is the one committing the act of prejudice.</li> </ol><p> </p> <p>The appellant’s prayer is for his appeal to be allowed and for his reinstatement without loss of salary and benefits with an alternative of payment of damages.</p> <p> </p> <p>In dealing with the appeal before it, the court <em>a quo</em> struck out some of the appellant’s grounds of appeal on the basis that they were grounds for review and not grounds of appeal.  The grounds challenged the composition and appointment of the committee and they also alleged bias. It is the striking out of those grounds which the appellant is now challenging in his grounds of appeal numbers 1, 2 and 3.</p> <p> </p> <p>It is common cause that the appellant did not attend the disciplinary hearing. For that reason, his decision to challenge the composition and appointment of the committee at the appeal stage was no longer available to him. Such objections could only have been raised at the disciplinary hearing which he opted not to attend. The principle was explained in clear terms in the case of <em>Moyo v Rural Electrification Agency</em> SC-4-14:</p> <p>“In our view the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings.  He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing.  In these circumstances we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”</p> <p> </p> <p> </p> <p>The effect therefore is that the issues raised by grounds 1, 2 and 3 fell away the moment the appellant absented himself from the disciplinary proceedings. At the hearing of this appeal, the appellant conceded this point and abandoned the said grounds 1, 2 and 3. The concession was properly made.</p> <p> </p> <p><strong>ISSUES RAISED FOR DETERMINATION</strong></p> <p>The remaining grounds of appeal raise two issues, that is, whether or not the court <em>a quo</em> made findings supported by the evidence on record and whether or not the court <em>a quo</em> wrongly interpreted s 4 (a) (vii) of the respondent’s code of conduct. I deal with each of these in turn.</p> <p> </p> <ol><li><strong>Whether or not the court <em>a quo</em> made findings supported by evidence on record.</strong></li> </ol><p>The court <em>a quo</em> found that it was not in issue that the appellant authored the emails because he had admitted doing so.</p> <p> </p> <p>The appellant contends that nowhere in the record did he admit to having published the anonymous emails. He contends that all that is on record are allegations by the respondent that the anonymous emails were authored by him. Furthermore,   that he had denied the allegations throughout. It was also argued that nothing proving the allegations was placed before the court <em>a quo</em> except for a bare averment by the respondent in its papers that on 22 November 2011, the appellant deposed to an affidavit, which affidavit was never placed before the court, admitting to authoring the emails.</p> <p> </p> <p>However, a perusal of the record will show why the finding of the court <em>a quo </em>is supported by the evidence.</p> <p> </p> <p>At page 150 of the record is a document marked as “Appendix 22” and headed “Charges proffered against Mr. Emmanuel Masvikeni as per the Code of Conduct of the National Blood Service Zimbabwe”. It lists as evidence of the misconduct in terms of s 3 (c) (vi) emails dated 3 and 7 December 2010 which were sent at 11.52 and 15.27 respectively to undisclosed recipients. It also lists emails dated 31 July 2011 sent at 22.46 to undisclosed recipients and it also states that “(I)n his affidavit dated 22 November 2011, Mr Masvikeni admits to sending the anonymous emails.” The affidavit is not part of the record before this Court thereby limiting the extent to which the reference to it could assist in the determination of this matter.</p> <p> </p> <p>More importantly though, on 5 August 2013, the following questions were asked by the Board Chairman (TC) and answers thereto were given by the appellant’s legal practitioner (MN) at the Appeals Committee hearing:</p> <p>“TC: Can I continue to ask? We were talking about the anonymous emails and letters. You said you were to agree with you on the issues. (sic) He is agreeing that he circulated the emails?</p> <p>MN: Yes</p> <p>TC: Ok, and with all its contents. It was not tampered.</p> <p>MN: We don’t know the information that was contained. Those emails were never availed to us.” (the underlining is mine)</p> <p> </p> <p> </p> <p>Further, the following exchanges also took place between the appellant’s legal practitioner, MN and board members, JN and NM:</p> <p>“TC: I want to work with the numbers there. Can I have the email he sent talking about the release of blood. The circulation of the anonymous mail which talks of the release of blood. (sic)</p> <p>NM: NBSZ Bulawayo branch sold an estimated 200 units of blood …</p> <p>NM: Well I can tell you that from the other matter that I have for him he has clearly distanced himself from that particular email.</p> <p>JN: Mr Chairman I am really confused. At one time you saying he did say that there was … now you are saying he is distancing himself from this email.</p> <p>MN: He never mentioned quantities in his correspondence so whoever put the quantities is something different. (sic)</p> <p>JN: You are querying the quantity and not the contents?”</p> <p> </p> <p> </p> <p>Subsequently, the following exchange ensued:</p> <p>“TC: Any other questions? I was putting down my questions. I just want to find out so that when we make a decision we have enough complete information. Does he agree he is the author of emails? (sic)</p> <p>MN: There are some contents that we are disputing honestly.</p> <p>NM: Did he circulate some emails?</p> <p>MN: He did circulate some emails but there are others that he did not circulate he is alleged. You know what Mr Chairman the difficulty we have is if we give the blanket an unqualified response (sic) you may interpret it otherwise we need to qualify our response. Specifically he never mentioned the quantities …</p> <p>NM: Does he have the emails he circulated? So that we can at least have the basis of saying these are the ones I circulated and these I did not.</p> <p>MN: Unfortunately we do not have the emails. The other computer crashed. Some of the emails were wanted by these guys when they instituted some mysterious criminal prosecution so his two laptops are actually captured as exhibits as we speak right now. There is a possibility that maybe or maybe not they may be on the hard drive of those captured computers.</p> <p>….</p> <p>MN: … What we are saying is that there are some infractions into his emails some people were employed to hack into his emails so he had to clean up his email accounts and discontinue some of them.</p> <p>TC: Who were employed?</p> <p>MN: By people whose names we are going to reserve.”</p> <p> </p> <p> </p> <p>Without quoting the whole text of the ensuing exchanges, suffice to quote the following answer given by the appellant’s legal representative to a question from a board member:</p> <p>“… all these acts of misconduct he was being victimised because he raised a red flag and the audit report confirmed the issues.” (sic)</p> <p> </p> <p> </p> <p>In light of this exchange, on a balance of probabilities, the appellant admitted, through his legal practitioner, that he is the one who published the emails in issue. He seems to prevaricate and avoid giving simple or straight forward answers.  He also purports to take issue with some of the content of the emails and seeks to create an impression that his email accounts were hacked and the hackers added some content relating to quantities, into emails that he authored, which content was not authored by him thereby producing the objectionable overall content. At the same time the appellant also seems to justify his authoring of the emails on the basis that the content thereof or the issues raised therein are after all true.</p> <p> </p> <p>In these circumstances, the finding of the court<em> a quo</em> that the appellant admitted to authoring the emails is a reasonable finding in the circumstances. This is particularly so when consideration is given to the fact that the applicable standard of proof is “a balance of probabilities.”</p> <p> </p> <p>The court <em>a quo </em>thus made findings that are supported by the evidence on record.</p> <ol><li><a name="_Hlk509923820" id="_Hlk509923820"><strong>Whether or not the court <em>a quo</em> wrongly interpreted section 4 (a) (vii) of the respondent’s code of conduct.</strong></a></li> </ol><p><strong>Section 4 </strong>(a) (vii) of the National Blood Service Zimbabwe Code of Conduct reads as follows;</p> <p>“4 DISHONESTY, THEFT, FRAUD AND RELATED OFFENCES</p> <ul><li> </li> </ul><p>(vii)     Any other act of prejudice towards the organisation, fellow members of staff, or members of the public, such as racism, tribalism, nepotism, sexism, regionalism.”</p> <p> </p> <p> </p> <p>It also states that the penalty for a first offence is dismissal.</p> <p> </p> <p>The court <em>a quo</em> held at page 3 of its judgment:</p> <p>“It is not in issue whether or not the appellant was the author of the emails. This was admitted. What is in issue is whether or not the appellant, in publishing the emails, meant or intended to damage the reputation of his superior or colleague, whether or not the information was untrue, erroneous or misleading and finally what the correct meaning of section 4 (a) (vii) was and whether or not the appeals committee misdirected itself by failing to appreciate the true meaning of the section.” </p> <p> </p> <p> </p> <p>The court <em>a quo</em> continued at page 5 of its judgement as follows:</p> <p>“The section refers to any other act or conduct such as nepotism, sexism, etc. The examples given such as nepotism and sexism cannot be taken to have been exhaustive. A literal reading of the section only shows that the items listed were only examples and not meant to be exhaustive. The appeals committee did not err.”</p> <p> </p> <p> </p> <p>And further:</p> <p>“On the merits of this case … the appeals committee did not err in finding that the appellant had published information that he failed to show was correct and truthful. He must have meant to damage the name of either a superior or a colleague. He was therefore guilty on the merits of the case.”</p> <p> </p> <p> </p> <p>The appellant’s contention is that this interpretation of the provision by the court <em>a quo</em> was wrong in that the court failed to appreciate that if the literal rule of interpretation was applied, the charge would only be valid if the appellant was the one accused of prejudicial conduct. In <em>casu</em>, the appellant contends that he was rather being charged with the misconduct of accusing his superior of practising nepotism. He contends that that was a result of an improper interpretation of the section. His conduct, in his view, is above board and did not justify the laying of the charge against him as he was not the one practising nepotism.</p> <p> </p> <p>The respondent however argues that the manner in which s 4 (a) (vii) is crafted cannot be deemed to be exhaustive because prejudicial acts are not limited to those that are specifically mentioned. Any other acts which can be shown to be prejudicial also fall under the provision.</p> <p> </p> <p>A close reading of the provision shows that it incorporates the misconduct that the appellant was charged with. The use of the words ‘any other act of prejudice’ and the words ‘such as’, is an indication that the prejudicial acts which any person may be charged with under the provision are not limited to the ones that are specifically mentioned.  Once this is accepted, the conduct of the appellant in publishing untrue and misleading material meant to damage the name of the Chief Executive Officer qualifies as “any other act” which is prejudicial to a fellow member of staff. The section proscribes any other act of prejudice. The appellant’s conduct does fall into this category.</p> <p> </p> <p>It is for the above reasons that I find that the interpretation given to the provision by the court <em>a quo</em> was correct.</p> <p> </p> <p>Accordingly, I hold that this appeal lacks merit and must be dismissed. There being no reason advanced why this Court must hold otherwise, costs will follow the cause.</p> <p> </p> <p>Accordingly, it is ordered that:</p> <p>The appeal be and is hereby dismissed with costs<em>.</em></p> <p> </p> <p> </p> <p><strong>GWAUNZA JA:                        </strong>I agree</p> <p> </p> <p> </p> <p><strong>GARWE JA:                              </strong>I agree</p> <p> </p> <p> </p> <p><em>Donsa-Nkomo &amp; Mutangi Legal Practice</em>, appellant’s legal practitioners</p> <p> </p> <p><em>D.M.H. Commercial Law Chambers</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-46ffe6d61d7ca63a0549b25195a34f7832e7bb86da714e35f5d5c428ad0da386"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>REPORTABLE</strong><strong>        (26)</strong></p> <p> </p> <p><strong>EMMANUEL     MASVIKENI</strong></p> <p><strong>v</strong></p> <p><strong>NATIONAL     BLOOD     SERVICE     ZIMBABWE</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, GARWE JA &amp; MAVANGIRA JA</strong></p> <p><strong>HARARE, </strong>NOVEMBER 10, 2017 AND MARCH 4, 2019</p> <p>                                                                                                                    </p> <p> </p> <p><em>M. Nkomo</em>, for the Appellant</p> <p><em>T. Zhuwarara </em>with<em> R.G. Zhuwarara</em>, for the Respondent</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA</strong>:        This is an appeal against the whole decision of the Labour Court confirming the dismissal of the appellant from the respondent’s employ. </p> <p> </p> <p><strong>Factual Background</strong></p> <p>The appellant was employed by the respondent as a Blood Procurement Manager from October 2001 to April 2012 when he was dismissed. Sometime in 2011, anonymous emails containing divisive and damning allegations against certain staff members as well as his superior, the Chief Executive Officer of the respondent, were circulated and sent to various employees of the respondent. The respondent conducted some investigations and concluded that the appellant was the author of the anonymous emails.</p> <p> </p> <p>Consequently, in October 2011, the appellant was charged in terms of the “National Blood Service Zimbabwe Code of Conduct” (sic), (“the Code”), with the following acts of misconduct:</p> <ol><li>Section 3(c)(vi): Writing and publishing anonymous letters which damaged the reputation of his superior or colleague</li> <li>Section 4(a)(ii): Deliberately giving untrue and misleading information about his superior concerning his professional behavior by alleging that he distributed diseased blood.</li> <li>Section 4(a)(vii): Accusing his superior of nepotism in the anonymous letters he published.</li> </ol><p> </p> <p>A written invitation to the appellant to respond to the allegations met no response. On 16 November 2011 he was suspended from duty with no salary.</p> <p> </p> <p>A disciplinary hearing was then conducted on 13 April 2012. Despite having been properly served with the notice of hearing, the appellant did not attend the hearing. After making its deliberations on the evidence and papers that were before it, the disciplinary committee found the appellant guilty of all 3 charges. The appellant was invited to make submissions in mitigation before the imposition of a penalty. The invitation met no response. Eventually, on 26 April 2012, the appellant was advised of the penalty imposed on him. On the first charge a final written warning was found to be the appropriate penalty. On the second charge the penalty was dismissal. On the third charge the penalty was also dismissal. </p> <p> </p> <p>On the 30th of April 2012, the appellant lodged an internal appeal to the Finance and Administration Manager in terms of the Code. The Manager dismissed the appeal in a reasoned ruling for lack of merit.</p> <p> </p> <p>Aggrieved thereby and in terms of the same Code, the appellant appealed to the Board Chairman. The appellant then also requested the Board Chairman to recuse himself from the matter. The basis of the application for recusal was that the Board Chairman had previously been involved in the matter leading up to the appellant being charged and subsequently dismissed. The Board Chairman recused himself from the matter and indicated that “(T)he appeal would be referred to the Labour Court in accordance with the provisions of the Code of Conduct.” However, this did not happen.</p> <p> </p> <p>In February 2013, the appellant eventually referred the matter to a Labour Officer in terms of the Labour Act. The parties did not settle at conciliation and subsequently the matter was referred to arbitration.</p> <p> </p> <p>On 30 July 2013, the Arbitrator ordered the respondent to constitute an Appeals Committee to hear and determine the appellant’s appeal against the decision of the Finance and Administration Manager which had confirmed the appellant’s dismissal from employment as decided by the disciplinary committee. </p> <p> </p> <p>The Appeals Committee was set up and, on 5 August 2013, it heard the appellant’s appeal and came to the conclusion that the appellant’s appeal lacked merit and it therefore dismissed it.  It was against that decision of the Appeals Committee that the appellant noted an appeal to the court <em>a quo</em>.</p> <p>The appellant raised seven grounds of appeal in the court <em>a quo</em>. Four of the grounds related to the composition and appointment of the disciplinary committee. Although there was no appeals officer involved at any stage in the matter, curiously, one of the appellant’s grounds of appeal was couched in the following terms: “The Appeals Committee erred at law and misdirected itself in upholding the decision of the Appeals officer and Disciplinary Committee despite clear evidence of bias in both the Appeals Officer and the Disciplinary Committee” (sic). From a reading of the papers, it can safely be assumed that the reference to an “Appeals Officer” ought in fact to be a reference to the Appeals Committee. This is so because it is the Appeals Committee which heard the appellant’s appeal against the decision of the Finance and Administration Manager to whom he had appealed against the decision of the disciplinary committee.</p> <p> </p> <p>The appellant also challenged the determination made by the Appeals Committee which upheld the decision of the disciplinary committee to the effect that he was not entitled to legal representation in terms of the Code of Conduct.</p> <p> </p> <p>In the rest of his grounds of appeal, the appellant challenged the finding that the information which was contained in the emails was untrue, erroneous or misleading and that it had the effect of damaging his superior’s or anyone’s reputation. He also sought to challenge the interpretation given by the disciplinary committee to s 4 (a) (vii) of the Code of Conduct which interpretation was confirmed by the Appeals Committee thereby leading to the upholding of his conviction. In terms of the Code the following is a dismissible misconduct: “Any other act of prejudice towards the organisation, fellow members of staff, or members of the public, such as racism, tribalism, nepotism, sexism and regionalism.” The appellant’s contention in this regard is that on a proper interpretation of the provision he ought not to have been charged. Rather, it is the person that he accused of practicing nepotism that ought to have been charged with the misconduct. The conflicting contentions are dealt with in more detail at pp 13 – 15 of this judgment under the heading: “<strong>2. Whether or not the court <em>a quo </em>wrongly interpreted section 4 (a) (vii) of the respondent’s code of conduct”. </strong> </p> <p> </p> <p>The court <em>a quo</em> found that the appellant had admitted to publishing the anonymous emails and in so doing meant to damage the name of a superior or colleague. The court further held that the interpretation that had been attributed to s 4 (a) (vii) was correct as it was clear that the listed items in the provision were not exhaustive. The court thus concluded that the appellant’s appeal lacked merit and dismissed it.</p> <p> </p> <p><strong>PROCEEDINGS BEFORE THIS COURT</strong></p> <p>The appellant was aggrieved by these findings and conclusion of the court <em>a quo</em>, hence the present appeal.</p> <p> </p> <p>The appellant’s grounds of appeal are crafted as follows:</p> <ol><li>The court <em>a quo</em> seriously misdirected itself on the facts when it concluded that <strong>“the challenged grounds for review relate to the composition of the appeals committee”</strong>. This amounts to a misdirection in law in that it led the court to follow a wrong path and reach a decision which is bad at law. (sic)</li> <li>The court <em>a quo</em> misdirected itself at law when it focused on the improper appointment of the disciplinary committee, per se, rather than determining the substantive correctness of the decision of the Appeals Committee whose decision was being appealed against.</li> <li>The court <em>a quo</em> misdirected itself in dismissing grounds of appeal one, two and three as grounds for review despite the clear and unambiguous language to the effect that it was the decision of the appeals committee which was being challenged.</li> <li>The court <em>a quo</em> grossly misdirected itself when it ruled that <strong>“it is not in issue that the appellant was the author of the emails. This was admitted ...”</strong> Nothing in the submissions placed before her supported this conclusion. This error of fact is so fundamental that it amounts to a misdirection at law. (sic)</li> <li>The court <em>a quo</em> grossly erred and misdirected itself when it concluded that the appellant ought to have established the truthfulness of what he allegedly published. This would be tantamount to turning the established principle that <strong>“he who alleges must prove”</strong> on its head. It is a misdirection at law. (sic)</li> <li>The court <em>a quo</em> grossly erred and misdirected itself in its interpretation of s 4 (a) (vii) of the Code of Conduct and failing to appreciate that the charge would only stick if the alleged offender is the one committing the act of prejudice.</li> </ol><p> </p> <p>The appellant’s prayer is for his appeal to be allowed and for his reinstatement without loss of salary and benefits with an alternative of payment of damages.</p> <p> </p> <p>In dealing with the appeal before it, the court <em>a quo</em> struck out some of the appellant’s grounds of appeal on the basis that they were grounds for review and not grounds of appeal.  The grounds challenged the composition and appointment of the committee and they also alleged bias. It is the striking out of those grounds which the appellant is now challenging in his grounds of appeal numbers 1, 2 and 3.</p> <p> </p> <p>It is common cause that the appellant did not attend the disciplinary hearing. For that reason, his decision to challenge the composition and appointment of the committee at the appeal stage was no longer available to him. Such objections could only have been raised at the disciplinary hearing which he opted not to attend. The principle was explained in clear terms in the case of <em>Moyo v Rural Electrification Agency</em> SC-4-14:</p> <p>“In our view the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings.  He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing.  In these circumstances we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”</p> <p> </p> <p> </p> <p>The effect therefore is that the issues raised by grounds 1, 2 and 3 fell away the moment the appellant absented himself from the disciplinary proceedings. At the hearing of this appeal, the appellant conceded this point and abandoned the said grounds 1, 2 and 3. The concession was properly made.</p> <p> </p> <p><strong>ISSUES RAISED FOR DETERMINATION</strong></p> <p>The remaining grounds of appeal raise two issues, that is, whether or not the court <em>a quo</em> made findings supported by the evidence on record and whether or not the court <em>a quo</em> wrongly interpreted s 4 (a) (vii) of the respondent’s code of conduct. I deal with each of these in turn.</p> <p> </p> <ol><li><strong>Whether or not the court <em>a quo</em> made findings supported by evidence on record.</strong></li> </ol><p>The court <em>a quo</em> found that it was not in issue that the appellant authored the emails because he had admitted doing so.</p> <p> </p> <p>The appellant contends that nowhere in the record did he admit to having published the anonymous emails. He contends that all that is on record are allegations by the respondent that the anonymous emails were authored by him. Furthermore,   that he had denied the allegations throughout. It was also argued that nothing proving the allegations was placed before the court <em>a quo</em> except for a bare averment by the respondent in its papers that on 22 November 2011, the appellant deposed to an affidavit, which affidavit was never placed before the court, admitting to authoring the emails.</p> <p> </p> <p>However, a perusal of the record will show why the finding of the court <em>a quo </em>is supported by the evidence.</p> <p> </p> <p>At page 150 of the record is a document marked as “Appendix 22” and headed “Charges proffered against Mr. Emmanuel Masvikeni as per the Code of Conduct of the National Blood Service Zimbabwe”. It lists as evidence of the misconduct in terms of s 3 (c) (vi) emails dated 3 and 7 December 2010 which were sent at 11.52 and 15.27 respectively to undisclosed recipients. It also lists emails dated 31 July 2011 sent at 22.46 to undisclosed recipients and it also states that “(I)n his affidavit dated 22 November 2011, Mr Masvikeni admits to sending the anonymous emails.” The affidavit is not part of the record before this Court thereby limiting the extent to which the reference to it could assist in the determination of this matter.</p> <p> </p> <p>More importantly though, on 5 August 2013, the following questions were asked by the Board Chairman (TC) and answers thereto were given by the appellant’s legal practitioner (MN) at the Appeals Committee hearing:</p> <p>“TC: Can I continue to ask? We were talking about the anonymous emails and letters. You said you were to agree with you on the issues. (sic) He is agreeing that he circulated the emails?</p> <p>MN: Yes</p> <p>TC: Ok, and with all its contents. It was not tampered.</p> <p>MN: We don’t know the information that was contained. Those emails were never availed to us.” (the underlining is mine)</p> <p> </p> <p> </p> <p>Further, the following exchanges also took place between the appellant’s legal practitioner, MN and board members, JN and NM:</p> <p>“TC: I want to work with the numbers there. Can I have the email he sent talking about the release of blood. The circulation of the anonymous mail which talks of the release of blood. (sic)</p> <p>NM: NBSZ Bulawayo branch sold an estimated 200 units of blood …</p> <p>NM: Well I can tell you that from the other matter that I have for him he has clearly distanced himself from that particular email.</p> <p>JN: Mr Chairman I am really confused. At one time you saying he did say that there was … now you are saying he is distancing himself from this email.</p> <p>MN: He never mentioned quantities in his correspondence so whoever put the quantities is something different. (sic)</p> <p>JN: You are querying the quantity and not the contents?”</p> <p> </p> <p> </p> <p>Subsequently, the following exchange ensued:</p> <p>“TC: Any other questions? I was putting down my questions. I just want to find out so that when we make a decision we have enough complete information. Does he agree he is the author of emails? (sic)</p> <p>MN: There are some contents that we are disputing honestly.</p> <p>NM: Did he circulate some emails?</p> <p>MN: He did circulate some emails but there are others that he did not circulate he is alleged. You know what Mr Chairman the difficulty we have is if we give the blanket an unqualified response (sic) you may interpret it otherwise we need to qualify our response. Specifically he never mentioned the quantities …</p> <p>NM: Does he have the emails he circulated? So that we can at least have the basis of saying these are the ones I circulated and these I did not.</p> <p>MN: Unfortunately we do not have the emails. The other computer crashed. Some of the emails were wanted by these guys when they instituted some mysterious criminal prosecution so his two laptops are actually captured as exhibits as we speak right now. There is a possibility that maybe or maybe not they may be on the hard drive of those captured computers.</p> <p>….</p> <p>MN: … What we are saying is that there are some infractions into his emails some people were employed to hack into his emails so he had to clean up his email accounts and discontinue some of them.</p> <p>TC: Who were employed?</p> <p>MN: By people whose names we are going to reserve.”</p> <p> </p> <p> </p> <p>Without quoting the whole text of the ensuing exchanges, suffice to quote the following answer given by the appellant’s legal representative to a question from a board member:</p> <p>“… all these acts of misconduct he was being victimised because he raised a red flag and the audit report confirmed the issues.” (sic)</p> <p> </p> <p> </p> <p>In light of this exchange, on a balance of probabilities, the appellant admitted, through his legal practitioner, that he is the one who published the emails in issue. He seems to prevaricate and avoid giving simple or straight forward answers.  He also purports to take issue with some of the content of the emails and seeks to create an impression that his email accounts were hacked and the hackers added some content relating to quantities, into emails that he authored, which content was not authored by him thereby producing the objectionable overall content. At the same time the appellant also seems to justify his authoring of the emails on the basis that the content thereof or the issues raised therein are after all true.</p> <p> </p> <p>In these circumstances, the finding of the court<em> a quo</em> that the appellant admitted to authoring the emails is a reasonable finding in the circumstances. This is particularly so when consideration is given to the fact that the applicable standard of proof is “a balance of probabilities.”</p> <p> </p> <p>The court <em>a quo </em>thus made findings that are supported by the evidence on record.</p> <ol><li><a name="_Hlk509923820" id="_Hlk509923820"><strong>Whether or not the court <em>a quo</em> wrongly interpreted section 4 (a) (vii) of the respondent’s code of conduct.</strong></a></li> </ol><p><strong>Section 4 </strong>(a) (vii) of the National Blood Service Zimbabwe Code of Conduct reads as follows;</p> <p>“4 DISHONESTY, THEFT, FRAUD AND RELATED OFFENCES</p> <ul><li> </li> </ul><p>(vii)     Any other act of prejudice towards the organisation, fellow members of staff, or members of the public, such as racism, tribalism, nepotism, sexism, regionalism.”</p> <p> </p> <p> </p> <p>It also states that the penalty for a first offence is dismissal.</p> <p> </p> <p>The court <em>a quo</em> held at page 3 of its judgment:</p> <p>“It is not in issue whether or not the appellant was the author of the emails. This was admitted. What is in issue is whether or not the appellant, in publishing the emails, meant or intended to damage the reputation of his superior or colleague, whether or not the information was untrue, erroneous or misleading and finally what the correct meaning of section 4 (a) (vii) was and whether or not the appeals committee misdirected itself by failing to appreciate the true meaning of the section.” </p> <p> </p> <p> </p> <p>The court <em>a quo</em> continued at page 5 of its judgement as follows:</p> <p>“The section refers to any other act or conduct such as nepotism, sexism, etc. The examples given such as nepotism and sexism cannot be taken to have been exhaustive. A literal reading of the section only shows that the items listed were only examples and not meant to be exhaustive. The appeals committee did not err.”</p> <p> </p> <p> </p> <p>And further:</p> <p>“On the merits of this case … the appeals committee did not err in finding that the appellant had published information that he failed to show was correct and truthful. He must have meant to damage the name of either a superior or a colleague. He was therefore guilty on the merits of the case.”</p> <p> </p> <p> </p> <p>The appellant’s contention is that this interpretation of the provision by the court <em>a quo</em> was wrong in that the court failed to appreciate that if the literal rule of interpretation was applied, the charge would only be valid if the appellant was the one accused of prejudicial conduct. In <em>casu</em>, the appellant contends that he was rather being charged with the misconduct of accusing his superior of practising nepotism. He contends that that was a result of an improper interpretation of the section. His conduct, in his view, is above board and did not justify the laying of the charge against him as he was not the one practising nepotism.</p> <p> </p> <p>The respondent however argues that the manner in which s 4 (a) (vii) is crafted cannot be deemed to be exhaustive because prejudicial acts are not limited to those that are specifically mentioned. Any other acts which can be shown to be prejudicial also fall under the provision.</p> <p> </p> <p>A close reading of the provision shows that it incorporates the misconduct that the appellant was charged with. The use of the words ‘any other act of prejudice’ and the words ‘such as’, is an indication that the prejudicial acts which any person may be charged with under the provision are not limited to the ones that are specifically mentioned.  Once this is accepted, the conduct of the appellant in publishing untrue and misleading material meant to damage the name of the Chief Executive Officer qualifies as “any other act” which is prejudicial to a fellow member of staff. The section proscribes any other act of prejudice. The appellant’s conduct does fall into this category.</p> <p> </p> <p>It is for the above reasons that I find that the interpretation given to the provision by the court <em>a quo</em> was correct.</p> <p> </p> <p>Accordingly, I hold that this appeal lacks merit and must be dismissed. There being no reason advanced why this Court must hold otherwise, costs will follow the cause.</p> <p> </p> <p>Accordingly, it is ordered that:</p> <p>The appeal be and is hereby dismissed with costs<em>.</em></p> <p> </p> <p> </p> <p><strong>GWAUNZA JA:                        </strong>I agree</p> <p> </p> <p> </p> <p><strong>GARWE JA:                              </strong>I agree</p> <p> </p> <p> </p> <p><em>Donsa-Nkomo &amp; Mutangi Legal Practice</em>, appellant’s legal practitioners</p> <p> </p> <p><em>D.M.H. Commercial Law Chambers</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:37:57 +0000 Anonymous 10036 at http://www.zimlii.org ZB Bank Limited v Marimo (SC 21 of 2020, Civil Appeal SC 976 of 2017) [2020] ZWSC 21 (13 February 2020); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/21 <span class="field field--name-title field--type-string field--label-hidden">ZB Bank Limited v Marimo (SC 21 of 2020, Civil Appeal SC 976 of 2017) [2020] ZWSC 21 (13 February 2020);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2101" hreflang="x-default">E</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2259" hreflang="x-default">Confidential information</a></div> <div class="field__item"><a href="/taxonomy/term/2103" hreflang="x-default">Disciplinary proceedings</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2198" hreflang="x-default">code of conduct in effect for employees</a></div> <div class="field__item"><a href="/taxonomy/term/2117" hreflang="x-default">disciplinary proceedings against employee</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:37</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2020/21/2020-zwsc-21.pdf" type="application/pdf; length=304851">2020-zwsc-21.pdf</a></span> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-e754c753524c8e1e7ab8206c4c92de30a37a808e46b821c14d72c409f34106dd"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="800px" src="/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fmedia.zimlii.org%2Ffiles%2Fjudgments%2Fzwsc%2F2020%2F21%2F2020-zwsc-21.pdf" data-src="https://media.zimlii.org/files/judgments/zwsc/2020/21/2020-zwsc-21.pdf" title="2020-zwsc-21.pdf"></iframe></span></div></div> </div> </div> Mon, 06 Sep 2021 13:37:25 +0000 Anonymous 10007 at http://www.zimlii.org Hwange Colliery Company Limited v Ndlovu & Anor (SC 46 of 2020, Civil Appeal SC 45 of 2018) [2018] ZWSC 46 (02 August 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/46 <span class="field field--name-title field--type-string field--label-hidden">Hwange Colliery Company Limited v Ndlovu &amp; Anor (SC 46 of 2020, Civil Appeal SC 45 of 2018) [2018] ZWSC 46 (02 August 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2101" hreflang="x-default">E</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2237" hreflang="x-default">Appeal against determination of disciplinary committee under disciplinary code</a></div> <div class="field__item"><a href="/taxonomy/term/2242" hreflang="x-default">Code of conduct</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2117" hreflang="x-default">disciplinary proceedings against employee</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> <div class="field__item"><a href="/taxonomy/term/2245" hreflang="x-default">strike action by employee</a></div> <div class="field__item"><a href="/taxonomy/term/1981" hreflang="en">Termination of Employment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:37</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/46/2018-zwsc-46.pdf" type="application/pdf; length=337955">2018-zwsc-46.pdf</a></span> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-895ef87fb1e62b92dbf811bae550c868800dfb9b796d98173f9301bf52b0c4b1"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="800px" src="/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fmedia.zimlii.org%2Ffiles%2Fjudgments%2Fzwsc%2F2018%2F46%2F2018-zwsc-46.pdf" data-src="https://media.zimlii.org/files/judgments/zwsc/2018/46/2018-zwsc-46.pdf" title="2018-zwsc-46.pdf"></iframe></span></div></div> </div> </div> Mon, 06 Sep 2021 13:37:17 +0000 Anonymous 9998 at http://www.zimlii.org