Edward Mudyavanhu v Cairns Food Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 27th JULY, 2022
JUDGMENT NO.LC/H/269.23
CASE NO. LC/H/306/22
AND, 13th September 2023
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 27th JULY, 2022

AND, 13th September 2023

JUDGMENT NO.LC/H/269.23 CASE NO. LC/H/306/22

EDWARD MUDYAVANHU	APPLICANT

And

CAIRNS FOOD LIMITED	RESPONDENT

Before the Honourable B.T Chivizhe, Judge;

For Applicant:	Mr E. Mudyavanhu (In Person)

For Respondent: Mr D. Peneti (legal practitioner)

CHIVIZHE J:

REASONS

The matter was placed before me as an application for reinstatement purportedly made in terms of Practice Direction no. 3 of 2013. After hearing the parties, I issued an order reference LC/H/ORD/499/2022 on 27th July 2022 in the following terms;

“IT IS HEREBY ORDERED THAT;

The application for reinstatement having being made out of time, is improperly before the court and is accordingly struck off the roll.

The Applicant shall pay costs on the ordinary scale.

The Applicant on 24th March, 2023 wrote to the Registrar requesting the reasons for the order issued by this court on 27th July, 2022. The following are my reasons.

FACTS

The background facts to this case were clearly laid out in detail in the judgement rendered by my brother, Honourable Manyangade J under reference number LC/H/153/2020. In brief the Applicant was employed by the Respondent as a Management Accountant. His employment was terminated in 2001 following a restructuring exercise. Dissatisfied he challenged the termination in this court. On 13 April, 2004 under reference, Edward Gutai Marimo Mudyavanhu vs. Cairns Foods Limited LC/H/35/2004 my sister, Honourable Makamure J found that Applicant was wrongfully dismissed from employment and directed payment in damages in compensation. In 2009 Applicant filed an application for quantification of damages. On 27th May 2009 under judgement reference LC/H/66/2009 Honourable Mhuri J, quantified the total damages payable in the amount of Zimbabwean Dollars $ 26 076 252.00. Thereafter Applicant took the matter to the High Court and then to the Supreme Court before approaching this court once again with an application for “variation of salaries, benefits and severance pay” under reference LC/H/APP/43/20. The matter was heard before my brother Honourable Manyangade J. On 03 July 2020. He handed down a judgement with an order to the following effect;

“In the result, it is ordered that:

The point in limine raised by Respondent be and is hereby upheld.

The application for variation of salaries, benefits and severance pay be and is hereby struck off the roll.

Each party bears its own costs.

Needless to point out it is this same application under reference LC/H/APP/ 43/20 the Applicant was seeking to reinstate when he again appeared before this court.

SUBMISSIONS BY APPLICANT

Through his Founding Affidavit Applicant submitted that his former employer was still owing him salaries, benefits and severance pay. The quantification done by this court in May 2009 had been made on the basis of valueless Zimbabwean Dollars. He submitted that between November 2012 and October 2015 the Respondent was under judicial management. He had however continued pursuing his matter resulting in an order by Supreme Court SC 385/19 which order directed him to “pursue his legal rights against the 3rd Respondent in terms of law” (the Respondent in this matter). Applicant contended that he consequently filed his application under reference LC/H/APP/43/20 with this court for variation of the

outstanding emoluments. At the hearing, the Respondent having taken the point in limine that this court could not properly re-evaluate a previous judgement rendered by the same court, this court per order reference LC/H/66/2009 consequently struck off the roll his application.

Applicant further submitted that he had thereafter approached the High Court for reinstatement of Labour Court Judgement LC/H/66/2009. That court however struck off the roll the matter on the basis of absence of a judgement valued on the basis of ‘a usable and enforceable currency’. The court had also stated that it was only the Labour Court which could properly revisit the issue of quantification and conversion of currencies in the circumstances of the case.

The Applicant further submitted that he then filed his application for variation of salary’s benefits which application was struck off the roll per Honourable Manyagadze J under reference LC/H/153/2020. Two further applications for leave to appeal and for condonation under LC/H/ORD/212/2022 were again struck off the roll with the reason tendered for the last as being the lack of prospects of success on appeal.

The Applicant submitted that he was now seeking for the original application under reference LC/H/43/20 which application was for variation of his employment emoluments to be reinstated on the court’s roll. He submitted that his application was being made under the provision of paragraph 3 of the Superior Court Practice Direction 3 of 2013. He submitted that this would be a much quicker way to have his matter heard rather than pursing the appeal option.

RESPONDENT SUBMISSIONS

The Respondent was opposed to the granting of the application. Respondent opposed the application on several fronts, firstly, that the application was muddled up in seeming to seek for reinstatement of LC/H/APP/43/20 rather than the last application filed before the court in March 2022 for which an order under reference LC/H/ORD/212/2022 had been rendered. The second ground of objection was that even if the application for reinstatement was properly before the court the application was being made out of time. Rule 36 of the Labour Court Rules, 2017 stipulated that an application for reinstatement must be made within 30 days of the Applicant having known of the abandonment. The Respondent further submitted that LC/H/APP/43/20 was struck off in July 2020. The Applicant had not re- enrolled the matter, after thirty days it was deemed abandonment. The Applicant had also failed to seek reinstatement within 30 days. The application for reinstatement was now being

made almost two years later. On this basis it was Respondent position the application being clearly out of time had to be struck off the roll.

The Respondent also advanced a second reason warranting dismissal of the application. It was that the basis for the striking off of the application in 2020 was such that the matter simply could not be reinstated. It was common cause the court in striking off the application had found that the court having disposed of the matter in 2009 could not revisit its decision which decision remained extant. The Labour Court was essentially functus officio. On this basis the Respondent prayer was for the dismissal of the application as it was clearly ill-taken. The Respondent prayer was for the matter to be dismissed. It was within the court’s latitude to dismiss the matter instead of striking it off. Reference was made to Fadzayi John vs. Delta Beverages SC 40/17. Respondent was also seeking for costs on a higher scale on the basis that the Applicant had filed numerous meritless applications which had resulted in putting it out of pocket.

In oral submissions the parties arguments were centred mainly on the relationship between Practice Direction no. 3 of 2013 and the Labour Court Rules, 2017. The parties had clearly adopted diverging positions on the issue. The Applicant position was that he was seeking reinstatement on the basis of Practice Direction 3 of 2013. His submission was that the Practice Direction no. 3 of 2013 was applicable to the circumstances of the matter without any reference to Rule 36 of the Labour Court Rules, 2017. In other words, Practice Direction no. 3 of 2013 had to be read as self-contained. He extended his argument to state that even if Rule 36 applied in the circumstances he had not been advised of the abandonment of the matter by the Registrar as required under Rule 35(3) of the court rules. The Respondent counsel did not agree. He emphasised that Practice Direction no. 3 of 2013 had actually been introduced in order to clarify the meaning of terms such as “struck off”, ‘‘removed from roll’’. The Practice Direction was therefore introduced to complement the Rules, as an aid to help understand the rules. In regards the application before the court however the application clearly could not succeed as the application under LC/H/APP/43/20 had been struck off on the basis of a jurisdictional point and not on the basis of breach of any rules of the court. The reference by Applicant to Practice Direction no. 3 of 2013 was therefore clearly misplaced as it could not alter the fact of the lack of jurisdiction on the part of the court to hear the matter under reference LC/H/APP/43/20.

THE APPLICATION OF THE LAW TO THE FACTS

Paragraph 5 of Practice Direction no. 3 of 2013 provides as follows;

“Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned. Provided that a Judge may on application and for good cause shown, reinstate the matter, on such terms as he deems fit.

It is common cause the Practice Direction no. 3 was introduced in 2013 with a view to ensure uniform use of terms and application of terms in the Superior Court. Contrary to submission by the Applicant Practice Direction no.3 was not designed to replace the court rules, it was introduced as an aid to the proper application of the rules. The Practice Direction in Paragraph 5 referred to above, provides, for the filing of an application for reinstatement within 30 days in a matter where the matter has been struck off for failure to abide with the Rules. Rule 36 of the Labour Court Rules, 2017 on the other hand provides for general reinstatement of matters. It provides as follows;

“36 Where a matter has been deemed to have been abandoned in terms of these rules, a Judge may, on good causes shown upon application by a party made written thirty days of the party becoming aware of the abandonment, order that the matter be reinstated”

It was the court’s considered view that Practice Direction 3 of 2013, contrary to Applicant submission, is not a self-contained document. It had to, for the reasons as outlined above, be read along with the court rules. With regards the matter, in casu, it was clear that the matter under LC/H/43/20 that Applicant intended to have resuscitated having been struck off on the basis of a jurisdictional point (namely, that the Labour Court was functus officio in the matter) the matter could not be resuscitated on the basis of Practice Direction 3 of 2013. In other words it was not a matter that had been struck off for failure to abide with the rules. It could not therefore be reinstated utilising paragraph 5 of the Practice Direction 3 of 2013. It was also the court’s considered view that even if the court was prepared to be generous and allow the Applicant to have his grievances considered afresh by the Labour Court (which grievances were that there were conflicting decisions handed down by all three courts in that whereas the Labour court had found, per Honourable Manyangadze J that this court had no jurisdiction in the application for variation of emoluments, the Supreme Court however had stated that the matter still needed resolution between the parties, the High Court, in turn, under its judgement reference HH 298/21, had also expressed the view that the judgement rendered by this court in 2009 was expressed in moribund currency and therefore

that court could not therefore register the award for enforcement of what was essentially a brutum fulmen. The same court had proceeded to render its opinion that Applicant could still have the Labour Court judgement converted to ‘useable and enforceable currency.) it was apparent that the matter having been struck off in 2020, had subsequently been abandoned. Applicant could therefore only in the circumstances have recourse to Rule 36. Rule 36 however required the application to have been made within 30 days of the party becoming aware of the abandonment. In this case the application was being brought two (2) years after the last order. It was on this basis the court handed down the order as granted.

The Respondent Legal Practitioners, Maguchu and Associates.