Farai Matsika v Moses Tonderayi Chingwena & 4 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/333/16
HELD AT HARARE 8 MARCH 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/333/16

HELD AT HARARE 8 MARCH 2016				CASE NO LC/H/REV/2/16

& 27 MAY 2016

In the matter between:

FARAI MATSIKA					Applicant

And

MOSES TONDERAYI CHINGWENA			1st Respondent

And

JAMES PRINCE MTIZWA				2nd Respondent

And

ROGERS MATSIKIDZE					3rd Respondent

And

R D MUKONDIWA					4th Respondent

And

CROCO HOLDINGS (PVT) LTD				5th Respondent

Before The Honourables Mhuri, J

and  Murasi, J

For Applicant				Mr I Ndudzo (Legal Practitioner)

with Ms H Mazarura

For 1st & 5th Respondents	Advocate T Magwaliba instructed by Atherstone & Cook

with Mr T Nyamasoka (Legal Practitioner)

For 2nd, 3rd & 4th Respondents	No appearance

MURASI, J:

The second, third and fourth respondents did not appear for the hearing.  They filed a document stating that they would abide by the decision of the court in these proceedings.

This is an application for review.  Applicant is employed by 5th respondent.  It is alleged that sometime in December 2015 applicant received a letter of suspension alleging certain acts of misconduct.  The applicant was subsequently charged and brought before a disciplinary authority on 7 January 2016.  Applicant attended the hearing and objected to the appointment of 2nd, 3rd and 4th respondents as the disciplinary authority.  Whilst these proceedings were pending, applicant filed an application for review with this court as well as an urgent chamber application with the High Court.  The urgent chamber application with the High Court was dismissed (I will revert to this decision later in this judgment).  The applicant has approached this court seeking relief couched in the following manner:

There was absence of legal authority on the part of the 1st respondent in taking the unilateral decision to suspend the applicant who is a Chief Executive Officer, Director and shareholder of the 5th respondent,  from employment given that no meeting or resolution of the Board of Directors of the employer was passed authorising the suspension contrary to the clear requirements of the 5th respondent’s governing documents.

There was absence of jurisdiction on the part of the 1st respondent in taking the decision to appoint 2nd respondent as Disciplinary Authority for the 5th respondent as the 1st respondent had not been authorised to appoint any Disciplinary Authority by a resolution of the Board of Directors contrary to the clear requirement of the 5th respondent’s governing documents.

The 2nd, 3rd and 4th respondents as members of the disciplinary authority purportedly appointed by the 2nd respondent are improperly constituted and have no jurisdiction to preside over applicant in a Disciplinary Hearing given that their appointment was made without authority from the Board of Directors and is consequently null and void.

The 2nd, 3rd and 4th respondents have displayed bias, malice and interest in the cause in the manner they have conducted themselves in the proceedings thus for.

There are gross irregularities in the convening and the manner of proceedings instituted by 1st, 2nd, 3rd and 4th respondents.

The suspension of the applicant, the appointment and composition of the Disciplinary Authority and their subsequent rulings are null and void in terms of the laws of Zimbabwe and must be set aside.

At the commencement of the proceedings, Advocate Magwaliba stated that he had

preliminary points to make as the matter was not properly before the court.  He stated that this was a premature application as applicant had not exhausted the domestic remedies available to him and that courts usually will consider such applications in very exceptional circumstances.  It was further submitted that applicant had not demonstrated the existence of such exceptional circumstances.  It was argued that when applicant was invited for a hearing on 7 January 2016, no determination was made in respect of any issue.  Applicant had been invited to make submissions on the issue of jurisdiction which he still has not done and therefore the issue of jurisdiction was not dealt with by the Disciplinary Authority.  The second point raised by Advocate Magwaliba was that the application was not in the form as prescribed in the Rules of the court.  It was submitted that it was not in terms of Form LC4 of the labour Court Rules, 2006.  It was stated that as this was a peremptory provision, non-compliance rendered the application a nullity.

The third point raised by Advocate Magwaliba was that the matter that was placed before the court was not a labour dispute but a corporate dispute.  It was argued that the court did not have jurisdiction to deal with issues of corporate governance.  It was further submitted that even if the court were inclined to wade into the corporate dispute the matter was mired in disputes of fact which could not be resolved on the papers.  Advocate Magwaliba also raised the issue that the matter is pending before another court.  It was stated that after MANGOTA J had dismissed the application before him, applicant had appealed against that decision.  Further, applicant had lodged an urgent chamber application with the Supreme Court which had subsequently been withdrawn.  However, the appeal against the decision of MANGOTA J which had dealt with issues raised before the Labour Court, remained unresolved by the Supreme Court and it was therefore a matter which was lis pendens.

Mr Ndudzo for the applicant stated that there was a general lack of appreciation on the nature and basis of the application before the court and this was that there was absence of jurisdiction on the part of the Disciplinary Authority.  It was argued that the sole issue was whether 2nd, 3rd and 4th respondents were properly constituted to preside over the employment dispute.  It was argued that applicant had a fundamental right in terms of the Constitution to be tried by a tribunal established by law.  It was stated that where applicant was of the view that there was absence of jurisdiction, he was entitled to seek review on that basis and it was therefore not necessary for a party to exhaust the domestic remedies.

As regards the urgent chamber application placed before MANGOTA J, it was  stated that the application was to stay the proceedings before the tribunal.  The application was dismissed and an appeal had since been noted under Case Number SC 103/16 and it was still pending determination.  Mr Ndudzo further submitted that the application before the court was in the Form LC4 as prescribed in the Rules.  He stated that there was only one application as opposed to two as alleged by respondent’s counsel.  Mr Ndudzo stated that the application was not a corporate dispute but one allowed in terms of section 89 of the Labour Act [Chapter 28:01].  The relief being sought by the applicant was whether his suspension was lawful and whether the tribunal had lawful authority to preside over the matter.  It was argued that no preliminary points had been properly raised as these were diversionary tactics to derail the court from dealing with the substantive issue before it.

Two issues will dispose of the matter.  This is whether the application is in terms of the Rules and whether this matter is lis pendens.  The first issue can be decided ex facie the record.  It is a requirement that the application should be filed with the requisite Form LC4.  In casu, the Form LC4 is filed which shows the details of the other parties.  It lists the names of the respondents and the address of applicant’s legal practitioners of record.  As to the grounds, the Form LC4 states “See Attached Grounds of Application.”  The grounds are not attached to the Form LC4.  What appears next on the record is an “Application for Review” and there appears an Index whose description space also shows that the first item is an “Application for Review” which is stated to be from pages 1 to 3.  The pages 1 to 3 show that this is an application for review.  No reference is made to the Form LC4 filed before these documents.  This clearly shows that the Form LC4 does not form part of the “Application for Review” in the subsequent documents.  Applicant basically created his own “application” which is not inclusive and divorced from the Form LC4.  I am of the view that there was no substantial compliance with the Rules of the Court.  The point in limine in this respect must be upheld.

The second issue is whether this matter is lis pendens.  The principles of lis pendens and res judicata have been discussed in precedent and the courts have stated that they are interrelated.  In a matter where lis pendens is raised, it is averred that the matter is pending before another court of competent jurisdiction.  In the case res judicata the averment is that the issues between the parties have been heard and a position held.  In both instances the plea is that proceedings should not go ahead either because they are pending or have already been decided.  The essential elements of the exception rei judicata are that the previous proceedings must have been between the same parties or their privies and that the same question must arise.  GUBBAY JA (as he then was) had occasion to refer to this principle in Wolfenden v Jackson 1985 (2) ZLR 313 (S) where he also stated the principle is based upon public interest that there must be an end to litigation and effect should be given to judicial decisions.

A reading of the decision of MANGOTA J shows that affidavits were filed by applicant in support of the urgent chamber application.  The issue of the validity of the appointment of 2nd, 3rd and 4th respondents was raised before MANGOTA J.  The Learned Judge quotes from the affidavit on page 5 of the judgment thus:

“6.9 when 2nd, 3rd and 4th respondents indicated that proceedings would be convened on 7 January 2016 as per their purported ruling of 29 December 2015 hereto  attached as Annexure ‘H’, even though I did not recognise the validity of their appointment, I considered it important to instruct my legal practitioners to record of formally advise 2nd, 3rd and 4th respondents of the objections.

In the meeting of 7 January 2015, 2nd respondent initially allowed my

legal practitioner of record to present evidence on the obvious lack of authority on his part to act as a disciplinary authority.  2nd respondent and his colleagues were duly furnished with the constitution documents which establish that the acts of the first respondent in suspending me and subsequently appointing the 2nd, 3rd and 4th respondents as disciplinary authority were illegal.

6.11 . . . . . . . . . .

6.12 . . . . . . . . . .

6.13 . . . . . . . . . .”

(Underlining for emphasis)

What is evident is that the last part of the above quoted paragraph is the basis of the first two grounds for review before this court.  How does MANGOTA J deal with the matter?  This is what the Learned Judge had to say on page 10 of the cyclostyled judgment:

“Parties are, in general terms, encouraged to allow proceedings which are before any court, tribunal or forum to proceed to their final conclusion before the same become the subject of a review or an appeal process.  The applicant challenged the jurisdiction of the disciplinary authority to hear and determine his case.  He, however, submitted to the jurisdiction of the same when he appeared before the authority on 7 January 2016.  One therefore fails to appreciate what he was challenging under the stated circumstances.”

(Underlining for emphasis)

The Learned Judge made the finding that once applicant had challenged the jurisdiction of the disciplinary authority, he should not have submitted to its jurisdiction.  Applicant immediately filed an appeal against the decision of MANGOTA J.  The Notice of Appeal to the Supreme Court is against the “WHOLE” judgment and the fourth ground of appeal is that the Learned Judge misdirected himself in making a finding that applicant had submitted himself to the jurisdiction of the disciplinary authority.  The matter is pending under Case Number SC 103/16.  The issue of the jurisdiction of the disciplinary authority is at the centre of the application for review before this court.  This is a matter which was decided upon by MANGOTA J and is pending appeal before the Supreme Court.  It is therefore a matter which is res judicata and lis pendens.  The same issues which were brought before  MANGOTA J were those raised before this court.  I have already referred to the contents of the affidavit filed before MANGOTA J and the first and second grounds for review filed before this court.

As discussed in the Wolfenden case, supra, there must be an end to litigation and litigants must not be allowed to plough the same field twice or to forum shop, hoping for a different result.  In casu, applicant placed the same issues before MANGOTA J hoping that an interdict would be obtained and when this failed, the applicant hopped to the application for review filed with this court.  Meanwhile applicant had filed an appeal against the decision of MANGOTA J and another urgent chamber application before the Supreme Court.  The latter case under Case Number SC 110/16 was withdrawn at the instance of the applicant.  I should surmise that the order of costs on a legal practitioner and client scale by that Superior Court was an indication of its disapproval.  It is therefore my view that the matter is improperly before the court for the above stated reasons.

In the result the court makes the following order:

The point in limine, being with merit, is upheld.

The application, being improperly before the court, be and is hereby dismissed.

Applicant to meet respondents’ costs in the application.

……………………………..

MURASI J

…………………………….			I agree

MHURI J

Mutamangira & Associates, applicant’s legal practitioners

Atherstone & Cook, respondents’ legal practitioners