James Maluso v Delta Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/204/2020
HARARE, 01 AUGUST, 2020
CASE NO. LC/H/97/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/204/2020

HARARE, 01 AUGUST, 2020			     CASE NO. LC/H/97/19

AND 25 SEPTEMBER 2020

In the matter between:

JAMES MALUSO							APPLICANT

Versus

DELTA BEVERAGES						RESPONDENT

Before Honourable C. Kachambwa; Judge

For Appellant:		A. Sibanda

For Respondent:		T. Pasirayi

KACHAMBWA J:

Judgment on Point in limine

In this appeal both parties raised points in limine.  The parties had suggested that they could argue the points in limine as well as the merits.  I objected to that and pointed out that the law requires that points in limine be disposed of first or else what is the point in raising them.  The parties’ suggestion was probably in keeping with the apparent lack of seriousness in the way these points in limine were dealt with in arguments as well as the lethargic manner in attempting to bring closure to this case.

The present appeal arose from a hearing following a decision by this Labour Court in which the matter was referred back for a trial de novo.  It was referred back in the following terms

“Appeal being with merit it be and is hereby allowed.  The guilty verdict and dismissal penalty in respect of appellant is set aside.  The matter is remitted to the respondent to deal with it afresh (my emphasis) in a procedurally correct manner paying attention to all issues raised by the appeal.  The hearing is to be done within 3 months of this order.  Each party to bear its costs”

The matter was not re -heard within the three months but nine months outside the three months.  The order is dated 20th October 2017.  The rehearing was held on the 13th and 22nd of November 2018.  It appears that it was heard when the appellant was trying to register the Labour Court decision for execution!

The appellant raised a whooping 15 grounds of appeal as follows –

“

The Works Council erred in dealing with the matter outside the period stipulated in Section 10.2 and Section 11.7(b) of the respondent’s Code of Conduct.

The Works Council erred in communicating its determination more than six days after the hearing contrary to Section 11.7 of the respondent’s Code of Conduct.

The Works Council erred in having seven members in the hearing committee whereas Section 11.3 of the respondent Code of Conduct provides for only six members.

The Works Council erred in ruling that the chairperson of the immediate superior hearing committee was correct in chairing a hearing where his chairmanship had no basis in terms of Section 11.4 of the respondent’s Code of Conduct.

The Works Council erred in ignoring that the chairperson had refused to recuse himself when he had clearly shown bias in his dealings with the appellant.

The Works Council erred in ruling that the chairperson of the immediate superior hearing committee was right in persisting with handling a matter without a quorum and in ascribing the walk out of the Worker’s Committee to the appellant.

The Works Council erred in ruling that the immediate superior hearing committee was entitled to handle a matter which was clearly outside the terms of the Labour Court judgment.

The Works Council erred in ruling that the immediate superior committee was right in handling a matter basing on a record of previous proceedings instead of beginning the matter afresh “in a procedurally correct manner” as directed by this Honorable Court in its judgment of the 20th October 2017.  Thus the immediate superior hearing committee appropriated itself review powers over proceedings this Honorable Court had already dealt with.

The Works Council erred in ruling that the immediate superior hearing committee had a right to charge the appellant with an omnibus charge when this Honorable Court had directed in a comprehensive judgment on the same matter that was wrong.

The Works Council erred in ruling that there was proof that there were missing cases as alleged when the only evidence before the immediate superior committee was that the charges against the appellant were a mere scheme by Marshall Mazengeza and Itai Kuvirimirwa and a mere mistake in splitting of brought back goods beers and pop offs and this was never investigated.

The Works Council erred in ruling that the immediate superior hearing committee was correct in relying on evidence that had been disowned by witnesses in the previous proceedings and ignoring the fact that those witnesses were not called before the immediate superior hearing committee to testify on allegations that they were improperly forced to implicate the appellant.

The Works Council erred in ruling that the case before it was to be proved by the appellant on balance of probabilities when the respondent was obliged to prove the matter beyond reasonable doubt.  Such reasoning was flawed and, even then, there was no proof of any dishonesty against the appellant even on a balance of probabilities.

The Works Council erred in ruling that there was no evidence in interference by Peter Jack and Lydia Chirombo when such was glaring in the communications between the Judgment of the Honorable Court in Case No LC/H/658/2017 and the calling of another hearing and Peter Jack had not denied such interference.

The Works Council erred in failing to appreciate that it was unfair for the appellant to be tried as an employee when the respondent had not paid the appellant since August 2015 and notwithstanding that the dismissal of the appellant was set aside by this Honorable Court.  The actions of the respondent were equivalent to approaching the court with dirty hands/

The works council erred in ruling that the immediate superior committee chairperson was right in persisting with handling a matter that was pending at the High Court, Bulawayo, as Case No HC2877/18.

The respondent opposed the appeal and said all expect ground of appeal number 12 were grounds for review.  At the same time the appellant raised the points in limine that said that –

The notice of response was invalid because it attached an affidavit which is not provided for in Rule 19 (2) of the Labour Court Rules and not provided for in the L.C.2.

The affidavit attached is not valid because there is no resolution by the Board of Director authorising the deponent to represent the company.

The respondent had dirty hands for failure to re-hear the case by the 20th of January 2019 in a manner as directed by the court.  The dirty hands also extended to failure to pay salaries to the appellant.  In short the respondent failed to adhere to the court order.

The case was postponed a couple of times on the request of the parties who said that they wanted to seek an out of court settlement.  That did not materialise and it is honestly doubted whether there was that spirit for an out of court settlement.  At one of the postponements the court advised the parties to critically look at the grounds of appeal with a view to agreeing on whether there are procedural issues there.  The court advised that where a ground is a procedural issue but has already been decided on it ceases to be a procedural issue since the appeal is now on the decision made.  On the return date the parties were not moved at all despite clear evidence that some grounds were indeed appeals on decisions on procedural issues.  This lack of cooperation was indeed in keeping with what the court has said that there appeared to be lack of seriousness in raising these points in limine.

Besides the points raised in the notice of response the respondent raised as a last argument in the heads of argument, the appropriateness of the prayer.  The prayer does not have an alternative of damages to reinstatement.  This was not raised as a point in limine.  Consequently even in the argument in court it came as an appendage.  I am pointing out this because the presentation of the parties’ arguments is upside down.  A point in limine should come at the beginning.  Normally it should also be determined before going to the merits.  A point in limine is expected to dispose of the matter before going to the merits and yet in this case it is not presented as a point in limine.  It is in the heads of argument.

Now, the point in limine was raised to say that, the relief sought is misconceived on the basis that it does not include an alternative of damages in lieu of reinstatement.  That being so it was argued that the appeal must fail on this ground.  The appellant’s response was that each case must be decided on the basis of what is before the court.  And before the court was said to be a case where there was a prior order of the court – the order by Kudya J.  The respondent had not obeyed that order to the extent that the rehearing was done out of time.  That being the case the rehearing was not valid and the order by Kudya J should be implemented.  Since that judgment is to be implemented, it was argued, there was no need for an order for damages in the present case.

The law is very clear both in decided cases and in statute that an order of reinstatement has to be coupled with an alternative for damages in lieu therefore Section 99 of the Labour  Act Chapter, 28:01 deals with functions, powers and jurisdiction of the Labour Court.  In subsections 2 para (c) subparagraph (iii) Provision (i) it says that the court may make an order of reinstatement or employment in a job with the proviso that -

“

any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment”

It follows therefore that an employee seeking reinstatement shall also be required to pray for the alternative of damages in lieu of reinstatement.  Failure to do so would mean that the litigant would be asking for an incompetent relief.  I think that this is the point discussed in Olivine Industries (Pvt) Ltd vs Gwekwerere 2005 (2) ZLR 421 ( S) at page 428F – 429C where the following is said –

“The appellant has cited Girjac’s case (supra) as authority of the proposition that where the reinstatement of an employee could not be tolerable to both parties, an alternative order for the payment of damages in lieu of reinstatement would be appropriate.  It is in any case, now accepted that an order for reinstatement must be accompanied with an alternative order for the payment of damages in lieu of reinstatement (Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S))

An applicant must ………

In the court a quo, the respondent sought an order simply, that his dismissal be set aside without loss of salary and benefits.  To his detriment, he did not consider, argue for, nor therefore claim, an alternative order for the payment of damages in lieu of reinstatement.

In Girjac’s case (supra) at 250 C-D this Court considered that very point and determined as follows:

“Since the issue of damages had not been argued, let alone raised in the papers, the learned judge (deciding, as he must have, that the court’s intervention was properly sought) ought to have dismissed the application on the ground that the nature of the relief claimed was misconceived; leaving it to the respondent, if so advised, to pursue a claim for damages by way of fresh proceedings”.

Thus on the authority of this dictum, the Learned judge a quo should, on the same basis, have dismissed the respondent’s application.  All in all the appeal has merit and must therefore succeed”

I do not see how the judgement by Kudya J takes the present case out of this problem.  On the contrary that judgment could infact complicate matters in that it did not specifically speak to reinstatement and did not speak to damages in lieu thereof either .  Consequently that judgment could be impossible of execution!  For how would the appellant execute it if reinstatement is no longer possible?

It is my view that the notice of appeal is defective due to the prayer that does not have an alternative of damages in lieu of reinstatement.  Talking about a notice of appeal which does not comply with the rules the case of Jensen v Acavalos 1993 (1) ZLR 216 (S) says

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid.  That is to say, it is a nullity.  It is not only bad incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs”

The notice of appeal in the present case being defective it means that the appeal cannot be heard.  It must be struck off.  It is up to the appellant to file a valid notice of appeal if he still wants to be heard.  Since it is defective l am also of the view that the other points in limine may not be considered.  The appeal is not before the court.  This point in limine effectively resolves the case.

Having said the above this court is concerned about the apparent way this case is panning out.  It lacks the urgency to have it finalized.  One aspect that is glaring is the lethargy with which the respondent has gone about it.  The rehearing was done way out of the time allocated and without any extension of time within which to hear it.  The respondent admitted to this defect but nevertheless has also sought to fight on technicities.  The parties have dragged their feet in a purported attempt to settle out of court with no tangible efforts and of course no positive results.  It is even more disturbing to see that the rehearing seems to have been motivated by the appellant’s attempt to register the order by Kudya J.  One would expect the parties to have realized that that order might be difficult or impossible to execute because of the absence of an alternative of damages.  The present appeal was   leading this court to the same error!  There is need for more diligence in handling this case so that it is finalized as quickly as possible.

Be that as it may in the result of the present hearing the appeal is improperly before the court.  Accordingly it must be struck off the roll.

..

It is therefore ordered that:

the appeal be and is hereby struck off the roll.

the appellant shall pay the costs.