Court name
Supreme Court of Zimbabwe
Case number
SC 57 of 2005
Civil Appeal 305 of 2004

First Banking Corporation Ltd. v Marimo (05/04) (SC 57 of 2005, Civil Appeal 305 of 2004) [2005] ZWSC 57 (23 October 2005);

Law report citations
Media neutral citation
[2005] ZWSC 57
















DISTRIBUTABLE
(48)


Judgment
No. SC. 57/05


Civil
Appeal No. 305/04








FIRST
BANKING CORPORATION LIMITED v





BALTHAZAR
ZINDOGA MARIMO








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & GWAUNZA JA


HARARE,
MARCH 21 & OCTOBER 24, 2005








S
V Hwacha
, for the appellant





The
respondent in person





SANDURA
JA: This is an appeal against a judgment of the Labour Court in
terms of which that court quantified the amount of damages
payable by
the appellant (“the Bank”) to the respondent (“Marimo”), in
lieu of reinstatement.






The
relevant factual background may be tabulated as follows –






1. On 1 May 1997 Marimo
joined the Bank as the manager of the retail banking division. He
had previously worked for Barclays
Bank for fifteen years and for the
Commercial Bank of Zimbabwe for two years.







2. On 20 July 2001 the Bank,
acting in terms of s 3(1)(a) of the Labour Relations (General
Conditions of Employment) (Termination
of Employment) Regulations,
1985 (published in Statutory Instrument 371 of 1985), suspended
Marimo without pay and other benefits
because it believed that he had
committed an act of misconduct. On the same day, the Bank applied
to a labour relations officer
for the authority to terminate Marimo’s
contract of employment.







3. On 30 January 2002 the labour
relations officer made the following determination:






“The
officer determines that Mr Marimo must be reinstated without any
loss of pay and benefits, and must be paid thirty-six months’
wages
as (an) alternative to reinstate(ment) on top of the back-pay in
terms of case no. SC 19/2001.”







4. On 10 April 2002, Marimo
submitted to the labour relations officer a document in which he had
quantified his back-pay and
benefits as being $4 048 933.29.
In addition, he had quantified his damages in lieu of reinstatement
as being $20 438 843.46,
which sum represented his salary
and benefits for thirty-six months. In the circumstances, the
document indicated that the total
sum being claimed by Marimo from
the Bank was $24 487 776.75.







5. On 29 April 2002, after
Marimo had registered the labour relations officer’s determination
with the provincial magistrate's
court, the clerk of that court wrote
to the Bank as follows:







“You are being advised that the
above determination order has been registered with us in terms of
section 96(2) of (the) Labour
Relations Act, Chapter 28:01.





Would
you, therefore, arrange for the payment of the said sum of
$24 487 776.75 within ten days of the date of this notice,
failing which a warrant of execution may be issued against your
property for the recovery of same.”







6. On 23 May 2002, when the
sum claimed from the Bank by Marimo had not been paid within the time
stipulated by the clerk of
the provincial magistrate's court, a
warrant of execution was issued on behalf of Marimo, and two motor
vehicles belonging to the
Bank were attached and removed from the
Bank’s premises by the messenger of court.







7. On 12 July 2002 the Bank
filed a notice of appeal in the Labour Relations Tribunal (“the
Tribunal”), now the Labour Court,
seeking an order setting aside
the determination made by the labour relations officer on 30 January
2002. No cross-appeal
was filed by Marimo challenging the
determination made by the labour relations officer.







On the same day, i.e. 12 July
2002, the Bank filed an urgent Chamber application in the Tribunal
seeking an order staying the
execution of the labour relations
officer’s determination and releasing the Bank’s motor vehicles,
pending the determination
of the appeal. An order to that effect
was issued by the Tribunal on 15 July 2002.





8. On 4 December 2002 the
Tribunal dismissed the Bank’s appeal with costs. The Tribunal’s
order reads as follows:






“In
the result it is ordered:






1. That the appeal against the
labour relations officer’s determination be and is hereby dismissed
with costs.






2. That
the appellant (the Bank) is hereby ordered to reinstate the
respondent (Marimo) with no loss of salary and benefits with effect
from the date of suspension.





3. That
in the event that reinstatement is no longer an option, the appellant
be and is hereby ordered to pay the respondent damages
in lieu of
reinstatement, the amount of which the parties may agree upon,
failure of (failing?) which either party may approach the
Tribunal
for quantification.”







In issuing this order the
Tribunal overlooked the fact that the basis on which the damages in
lieu of reinstatement were to be calculated
had already been
determined by the labour relations officer and that, as the Bank’s
appeal had been dismissed, the determination
by the labour relations
officer remained intact.







9. On 21 October 2003
Marimo, relying upon the Tribunal’s order issued on 4 December
2002, approached the Labour Court
for a fresh quantification of his
damages. On that day he filed written submissions claiming much
more than he had claimed before
the labour relations officer as
damages in lieu of reinstatement. He claimed many more benefits
than he had claimed in the document
that he had submitted to the
labour relations officer on 10 April 2002. In addition, he
claimed that the Bank was obliged
to pay him his salary and benefits
until he reached the retirement age of sixty-five years. He was
then fifty years old.







10. On 15 June 2004 the
parties appeared before the Labour Court and the Bank filed its
written submissions. In those submissions,
the Bank indicated that
it was prepared to pay Marimo back-pay and benefits in the sum of
$4 048 933.29, as quantified
by Marimo in the document
submitted by him to the labour relations officer on 10 April
2002. In addition, the Bank indicated
that it was prepared to pay
six months’ salary and benefits amounting to $3 406 473.90,
as damages in lieu of reinstatement.
After hearing the parties, the
President of the Labour Court reserved her judgment.







11. On 23 August 2004 the
judgment was handed down. In the result, Marimo was granted almost
everything he had claimed. That
included back-pay in the sum of
$38 234 499.00. Aggrieved by that result, the Bank
appealed to this Court, alleging serious
misdirections on the part of
the President of the Labour Court.







In its notice of appeal the
Bank prayed for an order setting aside the Labour Court’s order,
and remitting the matter to the Labour
Court for a fresh
quantification of the damages payable to Marimo by a different
President of that court. However, bearing in mind
the fact that the
matter has dragged on for about four years, I do not think that
remitting it to the Labour Court would be the best
thing to do in the
circumstances. In any event, I believe that the matter may be put
to rest at this stage on the basis of the
evidence on the record.





Although
fifteen grounds of appeal were set out in the notice of appeal, I
believe that the appeal may be disposed of on the basis
of one of
those grounds. That ground is that the Labour Court erred and
misdirected itself in holding that the quantification of
damages was
to be based on the order issued by the Tribunal on 4 December
2002 and not on the basis of the determination made
by the labour
relations officer on 30 January 2002. In my view, this is a
valid argument.






As
already stated, on 30 January 2002 the labour relations officer
ordered that Marimo be reinstated without any loss of pay
and
benefits and be paid thirty-six months’ wages as an alternative to
reinstatement. Marimo was also to receive his back-pay.





There
can be no doubt that Marimo accepted the labour relations officer’s
determination and was quite happy with it. I say so
for a number of
reasons.





Firstly,
on 10 April 2002 Marimo submitted to the labour relations
officer a document setting out the quantum of his back-pay
and
benefits, which was $4 048 933.29, and the quantum of the
damages to be paid in lieu of reinstatement, which was
$20 438 843.46.
The sum of $20 438 843.46
represented Marimo’s salary and benefits for thirty-six months, the
period determined by
the labour relations officer. The total sum
claimed by Marimo was, therefore, $24 487 776.75.





Secondly,
after submitting to the labour relations officer the document setting
out the quantum of his damages, Marimo registered
the labour
relations officer’s determination with the provincial magistrate's
court in terms of s 96(2) of the Labour Relations
Act
[Chapter 28:01]. The effect of that registration was
that, for purposes of enforcement, the determination had the effect
of a civil judgment of
the magistrate's court.





Thirdly,
after the registration of the determination, the clerk of the
provincial magistrate's court wrote to the Bank calling upon
it to
pay the sum of $24 487 776.75 within ten days, and
indicating that if it was not paid within that period a warrant
of
execution would be issued in order to attach the Bank’s property
and sell it. That letter was obviously written with Marimo’s
approval.





Fourthly,
when the sum claimed was not paid within the stipulated period Marimo
caused a warrant of execution to be issued by the
magistrate's court,
and two motor vehicles belonging to the Bank were attached and
removed from the Bank’s premises by the messenger
of court on
23 May 2002. The vehicles were only released after the Bank
was granted an order for their release by the Tribunal.





Finally,
when the Bank noted an appeal to the Tribunal against the
determination by the labour relations officer Marimo did not
note a
cross-appeal challenging the determination.





When
the Bank’s appeal was subsequently heard by the Tribunal it was
dismissed with costs. That meant that the determination
by the
labour relations officer remained intact and that the total sum
payable by the Bank to Marimo was $24 487 776.75.
There
was, therefore, no valid basis on which Marimo subsequently
approached the Labour Court seeking a fresh quantification of
damages, and his application should not have been entertained.





As
far as the Bank is concerned, it would appear from the Labour Court’s
judgment that when the quantum of damages was debated
in that court
the Bank did not seriously challenge the quantum arrived at by the
labour relations officer. The same approach was
adopted by the Bank
in this Court.





Finally,
with regard to costs it seems to me that the most appropriate order
is that each party should pay its own costs.





In
the circumstances, the following order is made –






1. The appeal is allowed, with
each party paying its own costs.







2. The order granted by the
Labour Court is set aside, and the following is substituted –






“(a) The application for a
fresh quantification of damages is dismissed with no order as to
costs.







(b) First Banking Corporation
Limited shall pay to Marimo the sum of $24 487 776.75,
together with interest at the prescribed
rate from 30 January
2002 to the date of payment in full.”









ZIYAMBI
JA: I agree.









GWAUNZA
JA: I agree.










Dube, Manikai & Hwacha,
appellant's legal practitioners