Lobels Holdings (Pvt) Ltd v David Chiweza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/645/2016
HARARE, 6 JUNE 2016 &
CASE NO LC/H/APP/180/2016
21 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/645/2016

HARARE, 6 JUNE 2016 &				         CASE NO LC/H/APP/180/2016

21 OCTOBER 2016

In the matter between

LOBELS HOLDINGS (PVT) LTD						APPLICANT

Versus

DAVID CHIWEZA								RESPONDENT

Before the Honourable Chidziva J

For the Applicant	N Chimuka  (Legal Practitioner)

For the Respondent      Ms P Msekiwa  (Legal Practitioner)

CHIDZIVA J:

This is an application for leave to appeal to the Supreme Court against the judgment of this court that was granted by this court under case number LC/H/12/16. This court dismissed the appeal against the award by Honourable Arbitrator Shawatu that was handed down on 13 June 2015. The award by the arbitrator stated as follows:

“1.	The respondent is hereby ordered to pay claimant $217 000-00 less any statutory deductions within three consecutive months with the first equal instalment payable by 30 June 2015.

2.	The respondent is further ordered to pay the above amount of $217 000-00 plus 5% interest per annum effective the date of default, which is the date of issue of the first debenture class E certificate No 00889 dated 9 March 2013.

3.	The other terms of reference namely 1, 3 and 4 are dismissed for they are irrelevant.

4.	Each party to pay its share of the arbitration fees.

I so award this 13th June 2015.”

The brief history of this matter is that:

The respondent was employed by the applicant under a valid contract of employment from the 1st of September 2010 to 31 July 2012 as a Resident Director after the applicant had experienced financial problem.

The respondent led and completed a Scheme of Arrangement with creditors as at the end of July 2013.

It is alleged that at the end of the Scheme the respondent was owed 23 months salaries. The respondent filed his claim to the scheme so that it could be noted and paid.

It is alleged that in the Scheme Agreement signed at or about 30 May 2012 the applicant acknowledged its indebtedness to the respondent.

In August 2012 the respondent filed an updated claim after the initial claim of 31 January 2012 had failed. The claim was accepted by the scheme as there were no objections.

The dispute arose on 24 October 2013 when the applicant issued a debenture of $112 280-00 which was far below the total figure claimed by the respondent.

The arbitrator and this court handed down decisions which are in favour of the respondent, hence the application before this court.

The applicant has filed this application based on the following grounds:

The respondent’s case was based on prescribed claims of unpaid salaries therefore this court erred by finding that the claim had not prescribed.

This court made an error of law by finding that grounds 2, 3 and 4 of appeal were factual findings and dismissed them.

The court also erred in finding that the respondent was entitled to a gratuitous payment when the respondent had repudiated the contract of employment.

This court hastened to conclude that “the cost of US$1000-00 for every three months is reasonable compensation for the respondent’s use of his own vehicle at work before taking into consideration facts before making a decision.

The applicant stated that it had the following issues to raise before the Supreme Court:

At what point does prescription start to run on an unpaid salary bearing in mind that salaries are due monthly?

Is the demand for terminal benefits consistent with the continuation of an employment relationship and if not what is the legal effect of such repudiation viz terminal benefits that derive life from the contract so terminated?

Can a litigant be awarded restitutive damages in the form of vehicle maintenance without the leading of evidence of what those expenses would have been?

The respondent submitted that this court made correct findings and that the applicant had no prospects of success on appeal.

The factors to be considered in an application for leave to appeal to the Supreme Court are as follows:

Whether there are reasonable prospects of success.

Whether the matter is of substantial importance to one or both of the parties.

Whether the amount is trifling.

These principles have been enunciated in the case of Pichanic N O v Paterson 1993 (2) ZLR 163 a page 166 where it was stated that:

“With regard to the portion of the order which is interlocutory leave to appeal will be granted where there is a reasonable prospect of success, the amount is not trifling and the matter is of substantial importance to one or both of the parties concerned, Herbstein and Van Winsen. The Civil Practice of the Superior Courts in South Africa 3rd ed pp 714 – 716. In this case the amount in dispute is not trifling and the matter is of substantial importance to both parties….”

The case of S v Tanganda & Ors 1981 ZLR 445 also had this to say about the principles to be considered:

“I prefer therefore to approach the matter by considering, not how good the prospects of success must be before leave is granted, but how poor they must be before leave is refused. And for this reason I think that the test that has been mooted that the applicant must show reasonable prospects of success – puts the matter to high, in my view leave to appeal should be granted if the applicant makes out a reasonably arguable case.”

Whether the Applicant has made out a reasonably arguable case

The applicant has raised the issue of prescription. The question to be answered by the Superior Court is when prescription started running in this case. Is it from the day the debt was claimable or from the date that the applicant indicated that it could not pay the respondent’s claim. The other issues raised are the consequences of repudiation of contract and the effect of making an award without adducing evidence.

It is my view that the applicant has made out a reasonably arguable case which warrants the granting of the application for leave to appeal to the Supreme Court. Therefore there may also be prospects of success on appeal.

Whether the Amount is not Trifling and Whether the matter is of substantial importance to one or both of the Parties Concerned

The amount in dispute is $217 000-00 plus 5% interest and it is not trifling. The applicant has submitted that the amount claimed amounted to $446 000-00 and that this amount is enough to cripple the operations of the applicant if allowed. For the respondent the amount he claims to be owed is also quite substantial. He could not have just worked for nothing. The issue of the quantum of unpaid salaries is therefore important to the parties concerned.

In view of the foregoing this court orders as follows:

The application for leave to appeal to the Supreme Court be and is hereby granted.

Each party to bear own costs.

Mawere Sibanda, applicant’s legal practitioners

Mambosasa, respondent’s legal practitioners