B & P Study Centre v Martin Manyika & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/28/2021
HARARE, 11 MARCH 2021
CASE NO LC/H/APP/612/19
JUDGMENT NO. LC/H/28/2021
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/28/2021

HARARE, 11 MARCH 2021			 CASE NO LC/H/APP/612/19

AND 9 APRIL 2021

In the matter between:-

B & P STUDY CENTRE				Applicant

And

MARTIN MANYIKA				1st Respondent

And

BRAVE MOYO					2nd Respondent

And

RICHARD MHUNDWA				3rd Respondent

And

JAMES MUTYORAMBIRI				4th Respondent

Before Honourable B.T. Chivizhe, Judge

For Applicant			Mr E. Mhandu (School Administrator)

1st Respondent			In person

For 2nd to 4th Respondents	Mr J Mufukiza (Trade Unionist)

CHIVIZHE, J:

This is an application for leave to appeal to the Supreme Court against a judgment of this court handed down on 4 October, 2019.

The judgment allowed the application for confirmation of the 1st Respondent’s draft ruling which ruling was made in favour of 2nd to 4th Respondent. The ruling is provided for under Section 93 (5a) (b) of the Labour Act [Cap 28:01] (the Act).

BACKGROUND FACTS

The 1st Respondent acting in his official capacity as Designated Agent had to determine two issues referred to him, firstly, whether or not the claimants (now 2nd to 4th Respondents) were unlawfully terminated by  the now Applicant and secondly, an appropriate remedy. After considering the submissions and evidence the 1st Respondent made a finding that there had been unlawful termination of the 2nd to 4th Respondents. In his draft ruling he directed reinstatement of all three Respondents without loss of salary and benefits with effect from the date of unlawful termination. In the event that reinstatement was no longer an option he directed payment of damages in amounts to be negotiated between the parties failing which the parties were to approach the tribunal for quantification. The 1st Respondent thereafter approached this court with an application for confirmation which was duly heard before me.

After hearing submissions by the parties and upon consideration of the record of proceedings this court handed down the judgment in which findings were made that the 1st Respondent had properly arrived at a conclusion that 2nd to 4th Respondents were unlawfully terminated by the Applicant. The court confirmed the draft ruling and directed the Applicant to comply with the ruling within the stipulated period.

APPLICATION FOR  LEAVE

The Applicant was disgruntled and noted the present application for leave to appeal to the Supreme Court. The draft Notice of Appeal sets out the grounds of intended appeal as follows;

“(a)	The court aquo failed to consider that the contracts of employment for the 2nd to 4th Respondents ended as result of repudiation. It is common cause that the Applicant initiated a process to terminate the contracts of employment for 2nd to 4th Respondents but could not successfully implement it due to disagreements and respondents refused to sign new contracts. They proceeded with oldcontractsfor6 months.

(b)	The court aquo erred in concluding that the applicant brought in new evidence before its court when in actual fact the applicant was actually substantiating his claim.

(c)	The court aquo erred by concluding that the Applicant implemented unilateral decision which sought to alter the contracts to unfavourable conditions.

(d)	The court aquo also misdirected itself by failing to note that the 2nd to 4th Respondent went awol and failed to report for duty for a period of more than 14 days.”

Applicant through the Founding Affidavit of one, Elias Mhandu, who also appeared this court, believes that the intended appeal carries good prospects of success as this court failed to consider that the contracts of employment for 2nd to 4th Respondent were terminated as a result of repudiation.

APPLICATION FOR CONDONATION

On the date of hearing there appeared the Applicant as represented by Elias Mhandu referred to supra as well as the 1st Respondent. The 2nd to 4th Respondent were represented by their trade unionist Mr Mufukiza. Mr Mhandu, for the Applicant raised a preliminary point that all Respondents had not filed Notices of Response in breach of the Labour Court Rules. His prayer was for the matter to proceed as default proceedings. The 1st Respondent and the Representative for 2nd to 4th Respondent both applied for condonation. They both explained that their failure to comply was due the challenges related to late last year. Mr Manyika explained that Covid restrictions imposed during the second period of lockdown resulted in their offices being closed they had been forced to attend irregularly at work. In the case of the 2nd to 4th Respondent Mr Mufukiza, explained that they were also operating under Covid restrictions during the period he had however managed to file the Notice of Response though there was a slight delay of one day. Mr Mhandu, in his reply conceded to the explanations tendered on behalf of all Respondents. He indicated that he  was no longer opposed to the grant of condonation to all the Respondents for the non-compliance with the Rules of Court. The court duly handed down an appropriate order extending condonation to all the Respondents for the failure to comply with the Court Rules. The bar operating against all the Respondents was duly uplifted and the parties were directed to make submissions on the merits.

POINT IN LIMINE

The 1st Respondent in opposing the application for leave also took a point in limine. The point was that he had not been properly cited in the application. It was common cause he had sat to determine the dispute in his official capacity as Designated Agent. He ought to therefore have been cited in his official capacity as “Martin Manyika N.O”. The point was said to be crucial as he had been improperly cited in his personal capacity. Mr Manyika gave an analogy with situations were companies are cited. It was his submission that in initiating litigation in the courts a litigant has to actually cite the full company name including the terms “(Pvt) Ltd”. Mr Manyika contended that in the circumstances where there had been an improper citation and his legal persona had been changed as a result there was clearly no proper application. The court was urged, to, should the point be with merit, strike off the matter from the roll.

The Applicant had no comment to make in response to the point. The point taken by the 1st Respondent in limine clearly has merit. This is when regard is had to the purpose of these proceedings. The Applicant seeks to appeal to the Supreme Court against a judgment handed down by this court in which the court confirmed the draft ruling made by the 1st Respondent. It is common cause the draft ruling was made by the 1st Respondent in his official capacity as Designated Agent in the employ of National Employment Council of Welfare and Educational Institutions. The draft ruling was made during the course and scope of his employment. That the 1st Respondent was not acting in his personal capacity is very much clear. It is very apparent that he ought therefore have been cited in his official capacity by the insertion of “N.O.” after his name. This much is standard in the filing of papers not only before this court but also before the other courts. On this basis the point in limine stands to be upheld.

It is accordingly ordered as follows:

The point in limine taken by the 1st Respondent be and is hereby upheld.

The Applicant having improperly cited the 1st Respondent the application before the court is consequently a nullity.

The application is accordingly struck off the roll with costs.