Emmanuel Chikuya v Jacob Bethel Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/447/16
HELD AT HARARE 07 JULY, 2016
CASE NO LC/H/APP/293/15
& 22 JULY 2016
JUDGEMENT NO LC/H/447/16
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IN THE LABOUR COURT OF ZIMBABWE         	JUDGEMENT NO LC/H/447/16

HELD AT HARARE 07 JULY, 2016                  		CASE NO LC/H/APP/293/15

& 22 JULY 2016

In the matter between:-

EMMANUEL CHIKUYA					Applicant

AND

JACOB BETHEL CORPORATION			Respondent

Before the Honourable B T Chivizhe, Judge

For Applicant		 T Marume (Legal Practitioner)

For Respondent		T Chiwara (Legal Practitioner)

CHIVIZHE J:

The matter was placed before me as an application for rescission of a judgment granted in error. The application is premised on Section 92 C of the Labour Act [Cap 28:01]. The application was opposed.

Background facts;

The Applicant was employed by the respondent as the Sales and Marketing Manager. He

referred a complaint of unfair labour practice to the Labour Officer. Upon failure to conciliate the matter was referred to compulsory arbitration in terms of Section 93 of the Act. The Arbitrator found that Applicant had been unfairly dismissed. He awarded Applicant amongst other things 30% of his salary as bonus. The respondent was aggrieved and appealed to this court against the arbitral award. The respondent had initially raised three grounds of appeal. The Applicant raised a preliminary point that the respondent’s grounds of appeal were not based on points of law. The preliminary point was upheld in respect of two grounds of appeal leaving only one ground for determination. The ground was attacking the Arbitrator for his finding that

applicant was entitled to 30% of his salary as bonus. After hearing arguments the court reserved judgment on the merits. In the meantime the applicant had proceeded to apply for quantification of the damages before the Arbitrator. He was then awarded the amount of US $104 829.52 as damages in lieu of reinstatement. The Respondent was dissatisfied and once again noted an appeal against the quantification of the first arbitral award. One of the issues taken on appeal was the quantum of the bonus. The matter was heard before my sister, the Honourable Muchawa, J. Through a judgment dated 8th November, 2013 Muchawa, J awarded applicant bonus as an entitlement.

Through a letter dated 21st March 2014which however was delivered to the court on 3 August, 2015, the applicant then requested this court to hand down judgment in respect of the first appeal. The court requested both parties to appear and place their position before it. Both parties appeared and indicated that the court proceed to hand down judgment. The judgment in the main appeal was then handed down on the 18th of September, 2015. It is that judgement that the present Applicant seeks to have rescinded on the basis of Section 92C of the Labour Act.

The application before me is for rescission of a judgment by myself which the applicant states was granted in error. The application in my view has no merit whatsoever I proceed to show how.

Firstly the application itself has been improperly placed before the court. The facts and circumstances in this matter clearly show that the parties approached the court and requested to hand down its judgment on the appeal against the main award. In so making the request both parties were aware that there was a judgment by my sister Honourable Justice Muchawa that had already delivered a judgment quantifying the 30% bonus which had been granted by the Arbitrator to the applicant. The court raised with the parties who were both represented as to why the judgment should be handed down in view of the judgment by Justice Muchawa. The parties reiterated the position that judgment should be granted on the appeal against the main award the court then proceeded to hand the judgment. By so doing the court gave a definite pronouncement on the rights of the parties as regards the bonus issue.  What came out clearly in the appellant’s submissions before me is that the appellant was not happy that the judgment appeared to conflict with the judgment by Justice Muchawa. The judgement according to applicant also appeared to take away his rights awarded to him of 30% bonus. The question that arises therefore is whether the issue that is being raised is the subject of an application for rescission. In my view clearly the issue is not subject of a rescission application. The Applicant who is legally represented has to pursue other remedies available to him.

Secondly assuming however that I am wrong and that the application for rescission is properly before the court the application would still in my view suffer a still birth.  Section 92C (1) of the Labour Act [Chapter 28:01] on which the application is premised reads as follows;

Rescission or alteration by Labour Court of its own decisions

(1) Subject to this section, the Labour Court may, on application, rescind or vary any determination or

order—

(a) which it made in the absence of the party against whom it was made; or

(b) which the Labour Court is satisfied is void or was obtained by fraud or a mistake common to the parties;

or

(c) in order to correct any patent error.

It is clear from a perusal of Section 92 C (I ) that the Labour Court in rescinding or varying any determination or order made, can only do so on the basis of the existence of three conditions as outlined in paragraphs (a) (b) or (c) of that section.

The applicant through his papers and oral submission by counsel suggested that the judgment was granted in the absence of another party presumably the applicant himself (see 1.9/ 1.10of applicant’s heads of argument). The applicant then in an apparent contradiction suggested that the judgment was handed down in error as Justice Chivizhe was not aware of the judgment by Justice Muchawa (see para 1.12 of applicant’s heads). In oral submissions before me, Mr Marume persisted with the argument that judgment was given in error. Both arguments however are clearly misconceived as I will proceed to show.

Paragraph (a) allows the Labour Court to rescind, where the order is granted where party against whom the order was made is absent. This is clearly not the case in casu. As indicated earlier both parties made a written representation to the court to proceed and hand down judgment on the appeal. Both legal practitioners appeared in chambers to reiterate their request for judgment to be handed down. There was no party absent and therefore paragraph (a) cannot apply.  Paragraph (b) allows the court to rescind where the court is satisfied the judgment is void or was obtained by fraud or a mistake common to parties. Mr Chiwuta for the respondent, submitted that the paragraph (b) was clearly inapplicable as the judgment was not void, it had not been induced by fraud or a mistake common to both parties. Both parties in fact were represented at the hearing and they indicated that the court proceed to hand down judgment. I agree entirely with respondent’s submissions on this point.

The last paragraph (e) allows the court to rescind or vary its judgment or order in order to correct a patent error. This is the ground on which the applicant has partly hinged his application. Applicant submitted that by proceeding to hand  down its judgment this court committed an error as the court then handed down a judgment which is essentially in conflict with Justice Muchawa decision and it is an undesirable position to have  two conflicting judgments from the same court. The respondent’s position on this point is that there was clearly no error when one has regard to the factual background to the matter.

Before I address myself to the issue at hand I would place it on record that this court refuses to be drawn to comment on the issue as to whether there is conflict between this court’s judgment and that of Justice Muchawa on the aspect of bonus The court’s view is that through his submission applicant is seeking to invite the court to review the judgment of a fellow judge with the similar powers. This the court clearly cannot do.

The court however does not agree with Applicant that the judgment was issued in error. This much is clear from a perusal of the judgment itself. The court indicated therein that at the material time of writing judgment the court was aware of the judgment by the Honourable Justice Muchawa. The court being aware that judgment had been handed requested from the parties the way forward. Both parties appeared in chambers and indicated that judgment should be handed down in respect of the first appeal. The court then proceeded to hand down judgment. The judgment was in the circumstances not granted in error.

On the basis of the above the application clearly cannot succeed.  It is accordingly ordered as follows:

The application for rescission of the judgment handed down by this court on the 18th  September 2015 be and is hereby dismissed with costs.

Matsikidze & Mucheche, applicant’s legal practitioners

Ziumbe & Partners, respondent’s legal practitioners