James Maluso v Delta Beverages PVT Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/14/2020
HARARE, 14 OCTOBER, 2019
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/14/2020

HARARE, 14 OCTOBER, 2019		     	     CASE NO. LC/H/REV/96/18

AND 24 JANUARY, 2020

In the matter between:-

JAMES MALUSO							Applicant

AND

DELTA BEVERAGES PVT LTD					Respondent

Before The Honorable L. Hove, Judge:

For Applicant				A. Sibanda, Attorney

For Respondent			T. Pasirayi (Legal Practitioner)

HOVE J:

This is an application for review.

The applicant was employed by the Respondent when allegations for alleged acts of misconduct were brought against him.

The employer had alleged that the applicant had endorsed wrong figures to reflect stocks brought back by the driver when the actual stock was less. The figures were shown, after a physical count, to be less than what the applicant had endorsed. The applicant was found guilty and dismissed. The Works Council upheld the dismissal.

The matter was appealed to the Labour Court and the court ordered as follows;

“appeal being with merit it be and 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 in a procedurally correct manner paying attention to all the issues raised by the appeal. The hearing is to be done within 3 months of this order. Each party bears its own costs”.

The matter was thus remitted to the employer’s works council for it to re-hear the matter in a procedurally correct manner and the hearing was to be done within 3 months of the order. The date of the court’s judgment was 20 October 2017.

The applicant, in filing this application argued among other issues that the period to hear the appeal expired before the employer could re-hear the appeal. The employer commenced the hearings on 5 November 2018 more than a year after the judgment of the Labour Court which had stated that the appeal had to be reheard within 3 months. There was no application for condonation and extension of time made to the court to extend the period beyond the 3 months.

The application was opposed and in limine the Respondent argued that:

The application was incompetent and could not be granted as the relief sought by the applicant cannot be granted by this court and hence the application ought to be dismissed on this basis alone.

The respondent’s specific challenges were that:

(i)	The applicant was seeking an interdict to bar the Respondent from proceeding with the hearing against the applicant. It is trite that the Labour Court does not have power to grant interdicts and therefore this application is null and void and cannot be granted.

(2)	The applicant also seeks a declarator declaring that the immediate superior hearing and any other proceedings pursuant thereto null and void. The Labour Court does not have power to grant declaratory orders. On that basis the application is null and void and cannot be granted.

(3)	The Respondent also seeks a declarator for the hearing proceedings before the chairman to be declared null and void and set aside. The Labour Court does not have power to grant a declarator and on that basis the application is incompetent and cannot be granted.

(4)	The applicant also seeks an order for the payment of arrear wages and allowances within 5 days of the order. The relief cannot be granted in an application for review. The claim is therefore in a wrong form and cannot be granted.

(5)	The courts should not interfere with unterminated proceedings except in exceptional circumstances, which exceptional circumstances have not been pleaded before this court to warrant interference by this court at the time the application for review was made before proceedings were concluded.

(6)      The proceedings have since been concluded and the applicant has since filed an appeal. The application for review has now been overtaken by events.

I have perused and considered the draft order filed by the applicant in casu and indeed the applicant is seeking an interdict and a declarator. The draft order reads in part as follows;

1.	The Respondent failed to conduct proceedings as ordered by this court under Judgment number LC/H/658/17 ref case number LC/H/878/15 and is hereby interdicted from conducting any hearing against the applicant.

2.	Proceedings before the immediate superior hearing committee lacked a quorum and those proceedings and any other proceedings pursuant thereto are hereby declared null and void.

3.	Clause 11.3 of the Respondent’s code of conduct has not been complied with and proceedings before the chairperson herein are declared null and void and are set aside.

The powers of the Labour Court are set out in section 89 of the Labour Act (Chapter 28:01)  (the act) and nowhere in that section or any other sections of the Act is the court given the powers and jurisdiction to issue interdicts and declarators. The relief being sought therefore makes the application improper and it should not have been placed before the court in that format.

Item 4 of the draft order reads as follows;

“There being no basis for withholding the applicant’s wages and allowances, the respondent is hereby ordered to pay to applicant all his arrear wages and allowances within 5 days of this order if not paid earlier”.

This also is an incompetent relief as these proceedings are an application for review. The grounds for review raised do not give rise to an order for the payment of all arrear wages and allowances. In review proceedings, the applicant challenges matters of procedure, bias or gross unreasonableness as the applicant has done.

The proper relief is for the proceedings to be done in a procedurally correct manner and not the payment of outstanding wages and allowances.

I find that the application is indeed incompetent and cannot be granted as the relief sought by the applicant cannot be granted by this court. The court has no authority to grant declarators and interdicts for this reason, the application is therefore incompetent and invalid. It ought not to have been placed before the court in this format. The application is fatally defective in view of the Relief sought in terms of the draft order.

In the result, the application is fatally defective, it be and is hereby struck off the Roll.

Mhaka Attorneys	-	Applicant’s Legal Practitioners

Gill, Godlonton & Gerrans 	-	Respondent’s Legal Practitioners