Court name
Supreme Court of Zimbabwe
Case number
SC 2 of 2006
Civil Appeal 167 of 2005

Muchero v Grain Marketing Board (167/2005) (SC 2 of 2006, Civil Appeal 167 of 2005) [2006] ZWSC 2 (13 February 2006);

Law report citations
Media neutral citation
[2006] ZWSC 2







REPORTABLE
(2)


Judgment
No. SC. 2/06


Civil
Appeal No. 167/2005








MARTIN
TICHAONA MUCHERO v THE GRAIN MARKETING BOARD








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, CHEDA JA & GWAUNZA JA


HARARE,
FEBRUARY 14, 2006








Ms
J B Wood
, for the appellant





G
E Mandizha
, for the respondent






CHEDA JA: After hearing both
counsel on this matter, we made the following order:






“IT IS ORDERED THAT:






1. The appeal be and is hereby
allowed with costs.





2. The
judgment of the court a quo be set aside and the
application in case No. HC 13115/00 be remitted to the
court a quo for hearing on the merits by the same judge.





3. The
respondent is given leave to file opposing papers to the application
in case No. HC 13115/00 within fourteen days
of this
order.”






We
indicated that our reasons would follow in due course. These are
the reasons.





On
1 March 2000 the appellant was issued with a letter of
suspension by the Ministry of Lands and Agriculture. On 8 March
2000 the Grain Marketing Board served him with a letter of suspension
on full salary and benefits. On 24 October 2000 he was
served
with a letter of suspension and the commencement of disciplinary
proceedings.





The
appellant was also arrested and detained by the police on allegations
made against him by the respondent.





Thereafter
a lot of correspondence was exchanged between the legal practitioners
of the parties. A lot of other events occurred
that are not
relevant to this appeal.





What
is relevant is that there was an urgent Chamber application before
ADAM J, filed in December 2000, which was recorded
as case
No. HC 13115/00. IN this application the appellant was
seeking a provisional order in the following terms:






“PROVISIONAL ORDER






68. I pray that the Honourable
Judge disqualifies (Messrs) Dube, Manikai & Hwacha from
representing the Grain Marketing Board
in this matter.






69. I pray that the Honourable
Judge declare, with costs, the suspension of the applicant as per
letter dated 24
th October
2000 by the first respondent unlawful and therefore null and void.







70. I pray that the Honourable
Judge grant an order compelling the first respondent to reinstate my
salary and benefits with immediate
effect retrospectively to the
24
th October
2000 when these benefits were withdrawn.






71. I
also pray that the Honourable Judge grant an order compelling the
first respondent to pay me back my salary entitlement for
October
2000 which the first respondent unlawfully withdrew from my account.”






In
response to the first prayer in para 68 of the Provisional
Order, Mr Hwacha, of Messrs Dube, Manikai & Hwacha,
filed an
affidavit arguing that he had never acted for the appellant. The
affidavit was not sworn.





When
the application was placed before ADAM J, in Chambers, he
directed by a note on the record that:






“Since the matter is opposed,
it is converted to a court application, with (the) parties to file
heads of argument after Mr Hwacha’s
opposing affidavit is a
sworn affidavit.”





It
seems there was a delay in complying with the above directive,
because when the application was heard before BHUNU J the
appellant objected to the presence of the respondents, arguing that
they were barred. Following submissions made before it, the
court
a quo
ruled that the bar be lifted in respect of the first respondent (now
the respondent).





However,
the court went on to rule in respect of the main application, holding
that the matter of the main application was pending
before the Labour
Court and could not be entertained by the High Court because of the
provisions of s 124 of the Labour Relations
Act [
Chapter 28:01]
(“the Act”), which provide as follows:






“124 Protection
against multiple proceedings






(1) Where
any proceedings in respect of any matter have been instituted,
completed or determined in terms of this Act, no person who
is aware
thereof shall institute or cause to be instituted or shall continue
any other proceedings in respect of the same or any
related matter
without first advising the authority, court or tribunal which is
responsible for or concerned with the second mentioned
proceedings of
the fact of the earlier proceedings.





(2) Any
person who contravenes subsection (1) shall be guilty of an
offence.”





The
court
a quo
held that since the appellant had fallen foul of the above provisions
by not advising the High Court accordingly, the reference of
the
matter to it was therefore incompetent for want of compliance with
s 124 of the Act. The main application was dismissed
with
costs.





When
the matter came before us on appeal, it was argued for the appellant
that the court
a quo
erred, in that it determined a matter that was not properly before
it, the issue of the merits on the main application had not been
argued, and there were no opposing papers for the then respondent.





A
perusal of the record suggests that ADAM J may have regarded
Mr Hwacha’s affidavit as an opposing affidavit for the
main
application when in actual fact it was not.





The
respondent regarded a letter written on behalf of the respondent
dated 14 November 2000 as indicating that the matter was
pending
before the Labour Court. Not much need be said about the letter
now, since Mr 
Mandizha,
for the respondent, finally conceded that the letter does not
establish that the matter was pending before the Labour Court.





It
was for these reasons that we made the order referred to after the
hearing.


SANDURA
JA: I agree.


GWAUNZA
JA: I agree.


Byron
Venturas & Partners
,
appellant's legal practitioners


Muzangaza,
Mandaza & Tomana
,
respondent's legal practitioners