A.J. Madondo Investments v Emmaculate Rwafa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/749/16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/749/16

CASE NO. LC/H/397/16

HELD AT HARARE

ON 14 NOVEMBER 2016 & 18 NOVEMBER 2016

BEFORE THE HON. MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

A.J. MADONDO INVESTMENTS				APPELLANT

AND

EMMACULATE RWAFA					RESPONDENT

For Appellant						Mr. Felix Madondo

(Operations Manager)

For Respondent						Mr. C. Mupungani

(Legal Practitioner)

MURASI J.,

This is an appeal against the quantification proceedings held before the Honourable Mlilwana. The brief facts are that the respondent was employed by the appellant. Following disagreements at the workplace, the matter finally ended in arbitration. The arbitrator found in favour of respondent and ordered her reinstatement. The respondent later approached the arbitrator for quantification in lieu of reinstatement. The parties appeared before the arbitrator and the arbitrator quantified the damages in lieu of reinstatement in the sum of $4 455-00. The appellant is dissatisfied with this decision and has approached this Court for relief.

The appellant’s grounds of appeal are inelegantly couched and can be summarised as follows:

1. That the arbitrator erred in ordering the payment of damages in a case where the respondent had repudiated the contract of employment.

2. That the arbitrator had not taken into the submissions of the appellant in arriving at her decision.

3. That the arbitrator had not taken into account the fact that if the appellant were forced to pay the amount in question it would close business as it was not in a position to pay such damages and this was contrary to public policy.

At the commencement of the oral submissions the Court inquired of respondent’s Counsel as to why he had not filed heads of argument. At first he stated that the file was only brought to his attention the day before the hearing date. When reminded by the Court that he was supposed to file the heads of argument at the same time that he filed the response, he then changed his explanation and stated that it was an oversight on his part. He then attempted to apply for a postponement of the matter to enable him to file the heads of argument. The Court declined to grant this application. The respondent’s Counsel had not tendered any reasonable and acceptable explanation for the non-compliance with the Rules of the Court. The Court can only but echo the words of MATHONSI J in Hughber Petroleum (Pvt) Ltd & Another vs Brent Oil Africa (Pty) Ltd 2014 (1) ZLR 200 (HC) where he had this say at page 205 D-E:

“These courts will never accept legal practitioners who elect to conduct their practices tardily and in a chaotic manner to extend such tardiness and chaos to the doorsteps of the court. Courts of law have a duty, not only to conduct their affairs in a dignified and transparent manner in dispensing justice, but also to protect their integrity against the machinations of the bad elements in the profession.”

It was for the above reasons that the Court declined to uplift the bar operating against the respondent. It has been stated that in some cases the sins of the legal practitioner can be visited on the litigant as the legal practitioner would be the representative that the litigant would have chosen.

On the merits, Mr. Madondo stated that the arbitrator had misdirected herself in not taking into account the submissions made by the appellant as evidenced by the fact that in her analysis she had not referred to the submissions made by the appellant. He referred the Court to the arbitral award. He further took issue with the fact that the respondent had simply submitted letters showing that her applications had been declined as ‘proof’ when in fact these had been obtained for the purpose of applying for the damages. Mr. Madondo also stated that the arbitrator had made an error in the calculation of damages as he mixed the issue of ‘back-pay’ and ‘damages’.

It is pertinent that the arbitrator’s decision be considered in order to determine the appeal. It is trite that an appellate court can only intefer with the decision of a lower court or tribunal where there is evidence of a misdirection. The arbitral award shows that the arbitrator captures the submissions of both the appellant and the respondent. A reading the ‘analysis’ section shows that the arbitrator dwelt on the claims made by the respondent. The arbitrator does not in any way indicate that she considered the submissions of the appellant. She makes the following comment:

“Having considered the arguments and evidence of the parties, I hereby order that:-“

It is clear that the arbitrator does not in any way refer to the submissions made by the appellant. The arbitrator does not state whether she accepted or rejected the submissions made by the appellant. The arbitrator does not give any reasons as to why she rejected the submissions made by the appellant. The reasons may be that the appellant, in those proceedings, dwelt on issues which had been dealt with the earlier arbitral award which it had not appealed against. However, the arbitrator was enjoined to give reasons therefor. In my view, it does not necessarily mean that the arbitrator has come to the wrong decision. It only means that this Court cannot determine whether she has properly exercised her discretion.

What is the remedy in the circumstances? This Court is not in a position to determine whether the issues raised by the appellant in the tribunal a quo were scrutinised or not. This court cannot arrive at a judicious decision as to the correctness of the factual issues pertaining to the letters submitted by the respondent during the tribunal hearing whose authenticity was questioned by the arbitrator as the arbitrator has not commented upon them. It is my view that the remedy lies in a remittal of the matter for a re-hearing before the same arbitrator to determine all the issues raised before her. I would also add that the arbitrator should have regard to the decided case of Redstar Wholesalers vs Edmore Mabika SC 52/05 in the determination of ‘back-pay’ and ‘damages’.

In the final analysis and for the afore-stated reasons the Court makes the following Order:

1. The appeal, being with merit, is allowed.

2. The arbitral award of Honourable Mlilwana dated 7 July 2016 be and is hereby set aside.

3. The matter is remitted to same arbitrator for a hearing de novo and the arbitrator should take into consideration the comments made in this judgment.

4. The hearing referred to in paragraph 3 above should be heard within sixty (60) days from the date of this order.

5. There is no order as to costs.

MANASE &  MANASE-			Respondent’s legal practitioners