Elisha Tshuma and Others v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H//24
HELD AT HARARE
23 JANUARY 2024
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO. LC/H//24

HELD AT HARARE 23 JANURY 2024				CASE NO. LC/H/946/23

AND 14 MARCH 2024

IN THE MATTER BETWEEN:-

ELISHA TSHUMA						FIRST APPLICANT

KHAUHELO MAWANA					SECOND APPLICANT

AUSTIN WAMEDZA						THIRD APPLICANT

PETROS SHAYANOWAKO					FOURTH APPLICANT

SIFELANI NHLIZIYO						FIFTH APPLICANT

AND

ZIMBABWE REVENUE AUTHORITY				RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicants					Mr. R. Matsikidze

For Respondent				Mr. S. Banda

MURASI J.,

This is an application for quantification of damages following the remittal of the matter by the Supreme Court.

At the commencement of the proceedings, Mr. Banda stated that he had a preliminary point to raise. He submitted that there was a substantive award by L. Gabilo which was quantified and is still pending. He further submitted that the same issues which had been placed before L. Gabilo were those before the Court in the present application. He averred that it was thus an incompetent application. The said the second issue alluded to the decision by L. Gabilo and he argued that the present application could only proceed if the Gabilo decision was set aside by a court of competent jurisdiction.

In response, Mr. Matsikidze stated that there was no pending matter as the two matters had in fact been consolidated. The reason the remittal was made was that the Court had proceeded to make the award as given by Gabilo without hearing the parties as promised. He stated that before the Supreme Court, it was conceded by the Applicants that the issue of damages had not been addressed before the Court. He submitted that this was the reason the matter had been remitted for quantification of damages.

The Supreme Court Order dated 21st July 2023 reads as follows:

“IT IS ORDERED BY CONSENT THAT:

The appeal be and hereby allowed in part with each party to bear its own costs.

Paragraph 1 of the judgment of the court a quo is amended to read as follows:

‘1. The appeal against the substantive arbitration award of L.M. Gabilo dated 14 October 2009 is dismissed with costs.’

Paragraphs 2.3 and 4 of the judgment of the court a quo are set aside.

The matter is remitted to the court a quo for determination of the claim for damages.”

I make the observation that both Mr. Matsikidze and Mr. Banda appeared for the parties in those proceedings. Paragraphs 2, 3 and 4 of this Court’s Order which was set aside dealt with the quantum of damages. The remittal is clear and unambiguous. It informs the parties that a determination on the claim for damages is to be made. There is no reference to the Gabilo determination on quantification of damages. It is also correct as stated by Mr. Matsikidze that the matter was consolidated and the clear path after such consolidation is clear for all to see.

The question that arises is why Respondent had not raised the issue before the Supreme Court in the process of consenting to the Order granted. It cannot be said that the minds of the legal practitioners were at cross purposes when they signed the consent order. It cannot be stated that it was Respondent’s mistaken view that the damages in question related to the Gabilo decision. It is apparent that there is no reference to this decision. The reason is clear. The matters had been consolidated and that there was no ‘separate’ Gabilo decision. If at all I am not correct in stating this, it was incumbent on the Respondent to approach the Supreme Court and state that the complexion of the remittal order was incomplete without the reference to the Gabilo decision. This was not done. It is thus my considered view that the preliminary point is devoid of merit and ought to be dismissed.

The following order is appropriate;

The preliminary point, being devoid of merit, is hereby dismissed.

The Registrar is directed to set the matter down for hearing at the next available date.

Respondent to meet Applicants’ costs.

Matsikidze Atoorneys at Law-		Applicants’ legal practitioners

Sinyoro and Partners-			Respondent’s legal practitioners.