Church of the Province of Central Africa v Pascal Mrewa and 5 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/431/16
HELD AT HARARE 11 JULY, 2016
CASE NO LC/H/597/15
& 22 JULY 2016
JUDGEMENT NO LC/H/431/16
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IN THE LABOUR COURT OF ZIMBABWE       	  JUDGEMENT NO LC/H/431/16

HELD AT HARARE 11 JULY, 2016                  		  CASE NO LC/H/597/15

& 22 JULY 2016

In the matter between:-

CHURCH OF THE PROVINCE OF CENTRAL AFRICA		- APPELLANT

AND

PASCAL MREWA AND 5 OTHERS					- RESPONDENT

Before the Honourable Chivizhe, J

For Appellant		: Mrs R. T. L. Matsika (Legal Practitioner)

For Respondent		P C Mlilwana (Trade Unionist)

CHIVIZHE J:

The present matter was placed before me as an appeal against a quantification award handed down on the 19th of January 2015. The main award had been issued on the 11th of July 2014. The Appellant also appealed against the main award. The present appeal is opposed.

The matter was initially set down before me on the 11th of February, 2016. The matter was postponed on at least three occasions all at the instance of the Respondent.  The Respondent who had been represented before the Arbitrator found themselves without a representative on the first date of appearance. A   postponement was then granted on that occasion to enable the Respondent to obtain alternative representation and also to obtain legal advice on a legal issue that had arisen following the upholding of the appeal against the main award before Justice Muchawa. The matter was again postponed for the third time on the basis that their representative, Mrs Musunda, who had then been engaged by the Respondents was not feeling well.  On that date the parties were duly warned to appear on the 11th of July, 2016.  The court indicated that this would be the last postponement to be allowed in the matter.

On the 11th of July, 2016 the Respondent appeared with their new representative, a Mr Mlilwana, who had filed his Notice of Assumption of Agency on the 4th of May, 2016.  Mr Mlilwana then sought to seek for a further postponement. He gave two reasons for the request.  Firstly, on the basis that the Respondents after perusing the decision by Justice Muchawa upholding the appeal against the main award, had decided to seek either a rescission or setting aside of the judgment tendered.

The court was being requested to postpone the hearing in order to allow Respondents to pursue those processes before the court. The second reason was that the Respondents were also seeking to have the appeal consolidated with another appeal also pending in the Labour Court under ref LC/H/723/14. The application for postponement was opposed by the Appellant.

I dismissed the application for postponement for two reasons.  Firstly, it was clear to the court that the Respondent were raising flimsy grounds for seeking a postponement. If indeed the Respondents seriously intended to appeal or rescind the judgement by Muchawa, J they would have done so by that time.  The judgement itself had been handed down on the 22nd of January, 2016.  It had been brought to Respondent’s attention on their first appearance before me on the 11th of February, 2016.  Five months later the Respondent still had not taken any steps to either appeal or apply for the rescission. They were now clearly out of time to pursue either of procedures. The Respondent were clearly not serious about prosecuting any appeal or application for rescission of the judgment.

The second reason for dismissing the application was that it was not convenient to consolidate the two matters. Whilst clearly Rule 27 of the Labour Court Rules allows for consolidation the circumstances of both matters were different.  The appeal in LC/H/723/14 whilst pertaining to the same appellant however involved two other employees (names supplied) who were different from the Respondents before me. Whilst the matters had been heard at the same time before the Arbitrator the Arbitrator had however issued two separate awards. The Appellant had as a result appealed separately against both awards. Whilst the appeal against the main award had been heard and judgement granted in the matter involving the Respondents before me which is LC/H/597/15, the appeal against the main award and quantification award in LC/H/723/14 had still not been heard.  It was for this reason I dismissed the request for consolidation of the two matters.  Having dismissed the application for postponement I then allowed the parties to address me on the appeal before me.

Mrs Matsika, for Appellant, raised a preliminary point that the appeal against the main award having been upheld through the judgement by Muchawa, J handed down on 22 January 2016  the main award had consequently been set aside. It was appellant position that the judgement by Muchawa, J not having been set aside as at that date the judgment remained extant.  In the circumstances where the main award had been set aside it therefore followed that the quantification award fell away as it would clearly have no legal basis to remain in operation. Mr Mlilwana’ for the Respondent, made a concession that in the absence of the setting aside of the decision by Muchawa, J the quantified award could not stand on its own.  The court thereafter reserved its ruling on the preliminary point.

The preliminary point taken is clearly merited.  It is clear that this honourable court having handed down a judgement per Justice Muchawa which essentially set aside the main award, that judgement not having been appealed against it follows that the judgement remains extant.  In the circumstances the main award having been set aside it follows that the quantification award which was borne out of that main award cannot by operation of law remain. The quantification award is void and now amounts to a legal nullity.  The quantification award should therefore be set aside for that reason alone.

In the circumstances it is accordingly ordered as follows:

The preliminary point taken is upheld.

The main award having been set aside through a judgment of this court the quantification award automatically becomes void.

The appeal therefore succeeds.

The quantification award handed down on the 19th of January, 2015 is hereby set aside.

Wintertons Legal Practitioners, appellant’s legal practitioners