Court name
Supreme Court of Zimbabwe
Case number
SC 24 of 2003
Civil Appeal 34 of 2003

Tawonezvi v Geddes Ltd. (34/03) (SC 24 of 2003, Civil Appeal 34 of 2003) [2003] ZWSC 24 (01 October 2003);

Law report citations
Media neutral citation
[2003] ZWSC 24

















Judgment No. SC 24/03


Civil
Appeal No. 34/03









MARK TAWONEZVI
v GEDDES LIMITED








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
ZIYAMBI JA & MALABA JA


HARARE,
JUNE 9 & OCTOBER 2, 2003








The
appellant in person





T
Hussein
, for the
respondent










ZIYAMBI JA: The appellant was
employed by the respondent as its chief executive. On 10 August
1998 the respondent, purporting
to act in terms of its Code of
Conduct (“the Code”), dismissed the appellant from its employ.
The appellant lodged an appeal
with the then Labour Relations
Tribunal (now the Labour Court), to which I shall hereinafter refer
as “the Tribunal”.







Some thirty-three months later,
the appellant applied to the High Court for a declaratory order
declaring his dismissal null and void
on the grounds of
non-compliance with the Code, the allegation being that the official
who conducted the disciplinary hearing resulting
in his dismissal was
not authorised in terms of the Code to do so. The High Court found
in favour of the appellant and issued a
declaratory order as follows:







“1. THAT misconduct proceedings
instituted against the applicant, together with his suspension,
preferment of misconduct charges, determination
of these charges and
meting (out) of penalty be set aside as null and void.






2. THAT
the respondent pay to the applicant the salary and other benefits due
to him from the date of his suspension, being 10 August
1998,
minus whatever sum he is proved to owe the respondent and any
deductions required by law.





3. THAT
the respondent shall pay the costs of this application.”







The respondent, aggrieved by this
decision, appealed to the Supreme Court. In the judgment of the
Court, delivered by MALABA JA
on 27 May 2002, (See
Geddes
Limited
v Mark
Tawonezvi
SC 34/02),
the appeal was dismissed.







Meanwhile, the appellant, on
14 February 2002, and before the judgment of this Court was
handed down, pursued his appeal before
the Tribunal and obtained
judgment in default of appearance by the respondent. The Tribunal
ordered the respondent to reinstate
the appellant or pay damages to
be agreed between the parties, failing which the parties were to
return to the Tribunal for the quantification
of the damages due to
the appellant. Pursuant to the issue of that order, the appellant
wrote to the respondent on 28 February
2002 setting out the
terms of the order and advising the respondent, “if you find
reinstatement inappropriate you can arrange a
meeting to discuss the
quantum of damages giving prior notice of your offer”.







When no response was received
from the respondent, the appellant set the matter down for damages to
be assessed by the Tribunal.
A copy of the order of the Tribunal is
not attached to the record, but it is common cause that an assessment
of damages was made.







Apparently dissatisfied with the
assessment made by the Tribunal, the appellant then filed an
application in the High Court seeking
an order nullifying the order
of the Tribunal. It was alleged, in support of the application,
that the proceedings before the Tribunal
were founded on invalid
proceedings and were, therefore, null and void. The High Court
dismissed the application on the grounds
that the appellant, having
sought and obtained from the Tribunal an assessment of damages in
lieu of reinstatement, the application
was frivolous and vexatious.
It is against this order that the appellant now appeals.







The main ground of appeal
advanced by the appellant in his heads of argument was a repetition
of that advanced before the High Court.
It is that the court
a
quo
erred in failing
to conclude that the proceedings before the Tribunal were invalid
because they were founded on invalid proceedings.







Section 101 of the Labour
Relations Act [
Chapter 28:01],
which was the governing legislation at the time and which I shall
refer to as “the Act”, provides in subss (7) and (8) as follows:







“101 (7) Any person aggrieved
by –






(a) a determination made in his
case under a code; or






(b) the
conduct of any proceedings in terms of a code;







may, within such time and in such
manner as may be prescribed, appeal against such determination or
conduct to the Tribunal.






(8) On
an appeal in terms of subsection (7) the Tribunal may –






(a) confirm the determination or
proceedings appealed against; or






(b) remit
the matter for determination by the person, committee or authority
referred to in paragraph (d) of subsection (3);
or





(c) substitute
its own determination for that appealed against.”







It will be readily apparent that
the submission by the appellant that the proceedings before the
Tribunal were unlawful is without
foundation. It is the appellant
who resorted to the Tribunal for a remedy on appeal - an option to
which he was entitled to avail
himself in terms of s 101(7) of
the Act. It may be that he is not satisfied with the result - and
if he is not, he has the
right of appeal to this Court on a point of
law - but there can be no question of the proceedings being a
nullity.







In any event there is merit in Mr
Hussein’s
submission that the appellant has compromised his judgment by seeking
an assessment of the damages. See
Glenwood
Timbers (Pvt) Ltd v Zimbabwe Development Bank
&
Anor
HH 4/2001.







Accordingly the appeal is
dismissed. Costs would normally follow the event, but Mr 
Hussein
has indicated to the Court that in view of the fact that the
appellant is not legally represented he does not press for an order
of costs against him. There will therefore be no order as to costs.






SANDURA  JA:
I agree.





MALABA
JA: I agree.







Hussein Ranchod & Company,
respondent’s legal practitioners