City of Mutare v P F Gwangwara & Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/17/16
HED HARARE 20 JULY 2016
CASE NO
JUDGMENT NO LC/MC/17/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/MC/17/16

HED HARARE 20 JULY 2016					CASE NO LC/MC/APP/25/16

& 23 SEPTEMBER 2016

In the matter between:

CITY OF MUTARE					Applicant

And

P F GWANGWARA & OTHERS			Respondents

Before The Honourables Maxwell & Murasi, JJ

For Applicant			D Tandiri (Legal Practitioner)

For Respondents		I Chingarande (Legal Practitioner)

MURASI J:

This is an application for leave to appeal to the Supreme Court.  The brief facts are that applicant employs the respondents in various capacities.  Respondents embarked on a collective job action and applicant sought a show cause order from the Minister which was granted.  This court issued a disposal order on 17 March 2016.  Applicant intends to approach the Supreme Court on appeal, hence this application.

At the commencement of the proceedings, Mr Chingarande, for the respondents, stated that he had two preliminary points to make.  The first preliminary point was that the applicant had approached the court with “dirty hands” in that it had not complied with the court’s order to pay respondents’ January and February salaries as specified in the order.  Mr Chingarande stated that the second preliminary point was that the purported grounds of appeal did not raise any grounds of law.

Mr Tandiri, for the applicant, stated that the issue of “dirty hands” raised by the respondents was subject to separate proceedings under Case No. LC/H/APP/571/16 where applicant had filed comprehensive documents.  He further indicated that the matter had not yet been set down for hearing.  In his submissions, Mr Tandiri had wanted to allege that the issue of non-compliance with the court order was only raised in the heads of argument but later changed this position when his attention was drawn to the response filed by the respondents.  Mr Tandiri further submitted that the Constitution in section 85 (2) did not allow the abrogation of a litigant’s rights simply because he/she had contravened a law.  As far as the second preliminary point was concerned, he insisted that the grounds of appeal were on points of law.  Mr Tandiri also applied that the draft notice of appeal be amended accordingly to show that the intended appeal was supposed to be before the Supreme Court instead of the Labour Court.  He made an application to delete the second and third grounds of appeal so that effectively the applicant had two grounds of appeal remaining.  Mr Tandiri further argued that whether or not an employer can be restrained from disciplining an employee engaged in an unlawful collective job action is a point of law and not one of fact.  He further pointed out that the inclusion of future salaries as an issue in the disposal order was also a point of law.

Mr Chingarande, in response, stated that there was a concession from the applicant that it had not complied with the court’s order when it applied for leave to appeal to the Supreme Court.  He thus submitted that applicant had not purged the contempt.  As to whether the grounds of appeal are on points of law, Mr Chingarande submitted that the applicant was supposed to show that the court in exercising the discretion had grossly misdirected itself in a manner that no such decision could have been arrived at by another court given the same facts.  He insisted that there was no such ground of appeal before the court.

The issue of “dirty hands” has been discussed in several cases.  In  Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information & Publicity & Others 2004 (1) ZLR 538 (S), the following was stated at 548 B-C:

“This court is a court of law and, as such, cannot connive at or condone the applicant’s open defiance of the law.  Citizens are obliged to obey the law of the land and argue afterwards.  It was entirely open to the applicant to challenge the constitutionality of the Act before the deadline for registration and thus avoid compliance with the law it objects to pending a determination by this court.  In the absence of an explanation as to why this course was not followed, the inference of a disdain for the law becomes inescapable.  For the avoidance of doubt the applicant is not being barred from approaching this court.  All that the applicant is required to do is to submit itself to the law and approach this court with clear hands on the same papers…”

The point raised in the above-cited paragraph is that the court will not readily assist a litigant who is clearly in breach of the law knowingly.  It was  held in that case that the litigant has to purge himself/herself of the “dirty hands” before the court can entertain the litigant’s case.  In Chikadaya v Chikadaya & Others 2000 (1) ZLR 343 (H) it was held  that the law requires that litigants come to court with clear hands and that they are not allowed to come to court seeking the court’s assistance if they are guilty of lack of probity or honesty in respect of the circumstances which cause them to seek relief from the court.  MALABA DCJ had occasion to deal with the issue of “dirty hands” in CFI Retail (Pvt) Ltd v Eric Masese Manyika S 8/16.  In that case the court a quo had held that the appellant had approached the court with “dirty hands” and thus could not be heard.  However MALABA DCJ stated that as the law clearly gave the beneficiary of an award some leeway in enforcing the award, and that the section providing for an appeal, not prescribing compliance, a litigant could not be denied the opportunity to approach the court on appeal.  It is my view that the CFI Retail case (supra) is distinguishable from the instant case.  In the CFI Retail case, the court was dealing with the provisions of the law as it prescribed in the filing of an appeal.  It was not dealing with a court order.  In casu, the court inquired from Mr Tandiri to explain the difference between a court order and a contravention of the law as he had cited section 85 (2) of the Constitution.  The section provides that a litigant should not be denied access to a court because he/she has contravened a law.  Mr Tandiri was unable to proffer a response to the inquiry by the court.  As pointed out above the court is of the view that a court order is an instruction requiring strict compliance from a litigant who intends to approach the court for relief.  To this end, the court associates itself with the sentiments of GOWORA J (as she then was) in Rigid Group Transport (Pvt) Ltd v Remington Gold (Pvt) Ltd & Others HH 110/11.  The Learned Judge had this to say at p 4 of the cyclostyled judgment:

“It is the hallmark of any functional judicial system to expect that any orders that it issues are obeyed.  It is also a necessary adjunct of the maintenance of law and order that there exists in any system the rule of law.  It is axiomatic with (the) rule of law that court orders are obeyed.  A citizen who openly defies the law cannot be heard by the courts until he is in a position to approach the court with clean hands.”

Interestingly, in the above matter, the Learned Judge was dealing with an application for leave to appeal which the Learned Judge proceeded to dismiss on the grounds stated in the above paragraph.  In casu, applicant concedes that when it filed the application for leave to appeal it had not complied with the court order.  This court order was issued on 17 March 2016.  This was after applicant had confirmed before the court that it was in a position to pay the January and February salaries by 21 March 2016 to enable the respondents to come to work.  The applicant had given an undertaking to comply with the order.  This partly explains why the disposal order made provision for the respondents to report for work on 21 March 2016.  This the applicant did not do.  It is quite evident that the applicant having shown such a disdain of the law by failing to abide by the order, should not seek to be afforded the audience of the court.  The first preliminary point must therefore be upheld.

The second preliminary point raised by Mr Chingarande is that the grounds of appeal are not on questions of law.  The court notes that before Mr Tandiri withdrew the second and third grounds of appeal, the first, second and third grounds of appeal seemed to raise one issue.  The first ground of appeal is couched as follows:

“1. 	The court a quo misdirected itself, on a question of law, by barring or restraining the appellant to take disciplinary action against the respondent for engaging in unlawful collective job action yet there is no law which takes away the employer’s right to discipline employees who commit such an act of misconduct.  Moreover, the court a quo had already adjudged the collective job action to be illegal and as such it was supposed to uphold the appellant’s right to take disciplinary action against the respondents.”

What amounts to a question of law has been the subject of discussion in many decided cases.  (See Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S).)  In Sable Chemical Industries Ltd v David Peter Easterbrook S 18/10 GARWE JA had this to say at p 5 of the cyclostyled judgment:

“The position is so settled that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are had in law constitutes a failure to hear and determine according to law.  For an appellant to avail himself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.”

The court will refer to the order that was given in casu which is the subject of the complaint.  The applicant has simply zeroed in on paragraph 4 of the order without referring to the reasons that were given by the court.  The court’s reasons were given as follows:

“Applicant does not dispute that it owes arrear and current salaries and benefits to the respondents.  Applicant is seeking

the termination of the unlawful job action; and

the right to take disciplinary action against the respondents.

Respondents have a right to their salaries and benefits.  Applicant has reneged on its legal duty to pay salaries and benefits.  For applicant to seek the right to discipline the respondents results in an injustice.  This cannot be condoned and this court cannot be seen to be perpetuating an injustice.”

That applicant owed respondents arrear salaries was a finding of fact.  That applicant intended to discipline the respondents was also a finding of fact.  That there was an injustice in not paying salaries was a finding of fact.  That the court would not want to be associated with this injustice was both a finding of fact and a discretion exercised by the court.  Clearly there is no suggestion by the applicant in the ground of appeal that the conclusions reached by the court amount to a gross misdirection which constitutes a point of law.  GARWE JA in the Sable Chemical case (supra) had this to say at p 11:

“In order to get around this provision (requiring an appeal to be on a point of law) some legal practitioners couch their grounds of appeal so that, on the face of it, they appear to raise issues of law when in fact they do not…  The words  ‘on a question of law’ have been added simply to give the impression that what is being raised is a question of law and yet the real issue raised in that ground of appeal is whether or not the committee (was) properly constituted, clearly an issue of fact.”

The issues addressed by this court in the reasons were clearly based on the facts.  As pointed out elsewhere in the judgment, that applicant was enjoined to show that the court grossly misdirected itself for it to amount a point of law.  This averment, as observed by Mr Chingarande, is missing and disables the first ground of appeal as being on a point of law.

In the second ground of appeal, applicant alleges that the order to pay salaries when due could not be included in the disposal order.  Applicant does not state in the ground of appeal that the section concerned prohibits the inclusion of that order.  Mr Chingarande pointed out that this was merely a confirmation of the applicant’s obligation at common law to pay wages for work done.  It is common cause from the facts and reasons given by the court that the applicant conceded that it had not paid salaries to respondents.  It was also common cause that this truancy by the applicant was the cause of the collective job action.  Did the order by the court constitute a misdirection so as to amount to a point of law?  As pointed out in respect of the first ground of appeal the averment of a gross misdirection is absent.  This ground of appeal therefore suffers the same fate as it is not on a point of law.

In conclusion and for the afore-stated reasons the court is of the firm view that the preliminary points ought to be upheld.

In the result the application for leave to appeal to the Supreme Court is accordingly dismissed with costs.

…………………………….

MURASI J

……………………………..		I agree

MAXWELL J

Tandiri Law Chambers, applicant’s legal practitioners

Matizanadzo & Warhurst, respondents’ legal practitioners