Lovemore Kamuka & Ors v National Railways of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO
LC/H/110/2020
HARARE, 25 FEBRUARY 2020
CASE NO
JUDGMENT NO. LC/H/110/2020
---------




IN THE LABOUR COURT OF ZIMBABWE         JUDGEMENT NO LC/H/110/2020

HARARE, 25 FEBRUARY 2020                          CASE NO LC/H/APP/486/19

AND 5 JUNE 2020

In the matter between: -

LOVEMORE KAMUKA & ORS                                             Applicants

And

NATIONAL RAILWAYS OF ZIMBABWE                           Respondent

Before Hove, Musariri, Chivizhe, JJJ

For Applicants 		Mr E. E. Matika (Legal Practitioner)

For Respondent 		Mr A. Muchadehama (Legal Practitioner)

RULING

CHIVIZHE, J:

The matter was placed before us as an application for leave to appeal against a judgement of this court handed down on 12 July 2019.

The brief facts of the matter are as follows. The Applicants are former employees of the Respondent. On the 29th of March 2016 in excess of 2000 employees of Respondent went on a collective job action in protest over the Respondent’s failure to pay their salarys and transport allowances. At the material time salaries had not ben paid for a period of 15 months and transport allowances for 5 months. The Applicants who were before this court were part of the employees that went on the collective job action. A show cause order was issued by the Minister in terms of the Labour Act [Cap 28:01] against the Zimbabwe Railways Workers Union and 3 other named trade unions who were at the time calling for cessation of the collective job action. A subsequent application for a Disposal Order before this court was dismissed on the basis that the order having been sought against the trade unions instead of the individual employees involved in the collective job action that order was not lawful. A second show cause was later issued. After the hearing of an application for a Disposal Order this court issued an order declaring the collective job action as unlawful and therefore to be terminated immediately. The Respondent was authorized to deduct salarys for the Applicants for the period of the collective job action. Applicants who did not report for work within 48 hours of the disposal order were to be summarily dismissed. Having reported for work the Applicants were served with suspension letters and notifications of hearings. The charges levelled related to absence from work during the period of collective job action. Some of the Applicants were later arraigned for disciplinary hearings and were consequently dismissed from employment. Thereafter they noted appeals to the General Manager. Of this group some were advised of the outcome of their matters before the Disciplinary Committee but others were not advised. They referred their dispute under section 101 (6) of the Act to the Designated Agent on the basis that the Respondent had failed to conclude proceedings within the prescribed 30 days.

The Designated Agent in his ruling found that the hearings by the Respondent had been concluded outside the prescribed period. He directed the finalization of all matter not later than 31st January 2017. All employees who would not have received outcomes after 31st January 2017 would be deemed as reinstated to their original positions without loss of salary and benefits from the dates of suspension. The Applicants did report for duty at their various stations but were advised of their dismissal from employment by Respondent. Aggrieved they noted an appeal as well as an application for review with this court. The court heard the application for review first and handed down a judgement under reference LC/H/239/2019. It is against that judgement the Applicant are seeking leave to appeal from this court.

At the hearing of the application Mr Muchadehama for the Respondent took a point in limine. The point taken was in relation to the propriety of some of the Applicants before this court. It was his submissions that only Lovemore Kamuka was properly before this court. The rest of the Applicants i.e. the 2nd – 32nd Applicants were not properly before the court. The basis of his submission was Rule 14 (1) of the Labour Court Rule, 2017 which currently provides for applications. Rule 14 (1) was said to provide that an application to the Labour Court shall be made along with supporting affidavits and a draft order. In this particular case only Lovemore Kamuka had deposed to an Affidavit. There were no supporting affidavits from the 32 other employees. What was placed before the court however was a document which Respondent styled as a ‘declaration of mandate’. That document amongst its inadequacies seemed to predate the Affidavit filed by Lovemore Kamuka. The second inadequacy was that the ‘declaration of mandate’ was purporting to be a compound document covering all the 32 employees. There was no indication by the individual employees that they associated with the averments made by Lovemore Kamuka in his Affidavit. Mr Muchadehama further submitted that to the extent that the ‘declaration of mandate’ did not carry the characteristics of a supporting affidavit the document was not a supporting affidavit as envisaged in Rule 14 (1). Mr Muchadehama also alluded to further patent errors in the document in that the date of signing of ‘declaration of mandate’ was reflected as 14th of February, 2017 whereas the date on which the documents was commissioned was reflected as 27th of February 2012.

Mr Matika, for the Applicant, in response submitted that there were basically three issues arising out of the Respondent’s point in limine taken. There was, firstly, the issue of the validity of the ‘declaration of mandate’. Secondly there was a purported conflict in the dates of signing and commissioning of the document. The third and last issue related to the propriety of Applicants 26 and 28 being before the court as both had not signed the ‘declaration of mandate’ at all.

Mr Matika, addressed the three points individually. He contended in respect of the first point that Rule 14 (1) does not compel the filing of supporting affidavits. The rule instead mandated the filing of affidavits in support of an application. The rule also referred to one or more affidavits. A party may therefore at his/her discretion include more affidavits. In this case the Applicants had attached an affidavit by the 1st Applicant and had chosen not to attach more affidavits. The Applicants had instead chosen to include a document in which the other Applicants indicated their support for the averments made by 1st Applicant in his affidavit. This was however not alien to the Rules Rule 21 (5) stated that an affidavit ‘may’ be accompanied by documents verifying the facts/averments as set out in the affidavit. The reference to ‘any’ affidavit in the rule had to be read as including documents such as the one before the court. The 1st Applicant had also clearly averred in his affidavit that he was representing 2nd – 32nd Applicant and then attached the declaration of mandate in compliance with Rule 21 (5). There was clearly nothing irregular. There had therefore been due compliance with the rules. Mr Matika further submitted that the ‘declaration of mandate’ in any event had taken the form of an affidavit and had gone further to take the form of a Special Power of Attorney giving 1st Applicant the right to represent the rest of the Applicants. The court was urged not to disregard the document as to do so would be to insist on form over substance. The Respondent had also not shown what prejudice it may have suffered through the inclusion of a ‘declaration of mandate’ as opposed to an affidavit.

Mr Matika further contended that the point in limine was also improperly taken as the application before the court was an ancillary application for leave to appeal against a judgement handed by the court which judgement remained extant.

In response to the second issue that different dates appeared on the ‘declarationof mandate’ document Mr Matika submitted that the Applicants were not aware Respondent was going to raise the point in limine.  Had they been given prior notice then there would have arranged for proper pagination of the record. As it turned out the anomalies in the dates as noted by the Respondent were a result of mixing up of the pages in the record. He gave as an example page 12 of the record where the Applicant had signed on the 20th February, 2017 that page had to be read with page 17 where there is a signature of D. Rupinya bearing the date as 24th of February, 2017. Page 16 of the record where there is a signature of D. Rupiya on the 22nd of February, 2017 was also to be read with page 14 of the record. Mr Matika submitted that the point that the documents were signed on different dates was clearly not merited.

Turning to the third issue raised in respect of the Applicants 26th and 28th Applicant Mr Matika conceded that these two Applicants were indeed not properly before the court as they had not signed the ‘declaration of mandate’ to authorize the 1st Applicant to represent them. His submission was in respect of these two they could thereafter be excluded from the proceedings therefore.

The court raised the issue that there was a judgment by the court which judgement was extant and binding on 1st Applicant as well as the rest of the Applicants so was the point in limine properly taken before the court at this stage. Mr Matika, in response submitted that the approach taken by Respondent was clearly not correct. The application for leave was an ancillary application to the main application which the court had heard and handed down its judgement.

Mr Muchadehama, for Respondent, in his reply submitted that the point in limine was clearly with merit. It was apparent from Applicants counsel submissions that he was also not clear as to how to describe the document before the court. He had labelled it a ‘declaration of mandate’ but in his address he had also referred to it as akin to a supporting affidavit and then to a Specific Power of Attorney. Applicant counsel had also said that the document fell in the definition as referred to in Rule 21 (5). It was the contention by Mr Muchadehama that the Applicants could not be allowed to leave the court guessing as to what the document was. Rule 14 was clear that an application must be accompanied by a supporting affidavit. The document before the court was not such. In response to the second issue Mr Muchadehama submitted that he was not aware there was a mix up in the papers. It was trite position at law that an application stands/falls on the papers as filed. The application as it stood was clearly poorly presented. The court was urged to find in Respondent’s favour. It was his further submission Mr Matika had also improperly sought to lead evidence from the bar. He had not properly applied to amend his papers so that they were correctly aligned. There was in any event no rule that allowed him to amend his papers as he had sought to do. The concession in respect of Applicants 26 and 28 was however properly taken.

in response to the point raised by court earlier with Mr Matika, Mr Muchedahama, submitted that the judgment of the court indeed remained extant, if his point in limine succeeded however there would be a need for correction of the judgment to reflect only the Applicant who was properly before the court i.e. 1st Applicant only. The only problem was Applicants were opposed to his point In limine and had not sought to amend their papers. The point raised however was a point of law which the Respondent was entitled to raise at any stage of the proceedings. A point of law could in any event be raised at any stage of the proceedings even on appeal. Mr Matika concurred that the position of the law was that a question of law could be raised at any stage of the proceedings. His view however was that the point being raised as to whether ‘declaration of mandate’ in this case served the same purpose as a supporting affidavit as provided in Rule 14(1) was however not a valid point. The Rules provided for the filing of documents as attachments the Respondent had in any event not pointed to any prejudice suffered through the inclusion of the document instead of a proper Supporting Affidavit. Mr Matika further submitted that labour matters in any event ought to be resolved on the merits rather than on technical issues. Mr Matika’s prayer was for dismissal of the point in limine taken.

RULING

There are in my view four issues arising out of the point in limine taken by the Respondent. They are firstly whether the point in limine is properly taken in current proceedings i.e. in an application for leave to appeal. Secondly, assuming the court finds that the point is properly taken before the court, is the ‘declaration of mandate’ a valid document before this court? The third issue relates to whether Applicants 26 and 28 are properly before this court. The last issue relates to the mix up of pages in the record. I turn to address the issue seriatim.

The first issue to determine is whether the point taken by Respondent was properly taken before this court considering that the court is sitting to hear an application for leave to appeal against a judgement handed down by the same court. Mr Muchadehama in his submissions did not refer to any provisions in the Rules or the Act allowing for such procedure. He however alluded to the point as raising a question of law which point can therefore be raised at any stage of proceedings. Mr Matika also conceded to the point as raising a question of law as to whether the ‘declaration of mandate’ is synonymous with a ‘Supporting Affidavit’ as provided for in Rule 14 (1) of the Labour Court Rules, 2017.

The issue therefore is whether a question of law has indeed been raised before the court. The term “question of law” was defined in the well elaborated case in Muzuwa vs United Bottlers (Private) Limited 1994 (1) ZLR 217 (S), 220 (D-F). It was defined to mean

“The term “question of law” is used in three distinct though related senses.  First, it means “a question which the law itself has authoritatively answered to the exclusion of the right of the Court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter”.  Second, it means “a question as to what the law is.  Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter”.  And third, “any question which is within the province of the Judge instead of the jury is called a question of law”

The issue raised is whether the “declaration of mandate” can be equated to a  “supporting affidavit” as provided in Rule 14 (1) or whether the document referred to as “declaration of mandate” is compliant with Rule 14(1) of the Labour Court Rules, 2017.

The issue is obviously a question of law. Is the question properly taken before us considering that the court is sitting to hear an application for leave to appeal against our judgment handed down in 2019. Both counsel seemed to agree that the question of law could be raised at any stage of proceedings. Mr Matika however diverged on the point that although the question of law was properly taken in the application before us the point was however not valid as the “declaration of mandate” was properly filed in terms of Rule 14 (1).

It is indeed trite that a question of law can be raised at any stage of the proceedings including on appeal. It is our considered view the fact that the current proceedings involve an application for leave would not alter that position. The point of law however has to be validly taken. The Respondent did not formally give notice to the other party and to the court that it was going to raise the point. Although Applicants counsel seemed to have conceded to the taking of that point un-procedurally, the point of law ought to have been properly placed before the court. Having already heard the parties on the point the court will not belabour the point. The court’s findings therefore is that the point was properly taken before the court.

In regards the validity of the point however it is our finding that the point is not merited. Rule 14 (1) of the Labour Court Rules, 2017 provides for applications in the Labour Court. It provides as follows

“14. Court applications

A court application shall be in Form LC 1 and shall be supported by one or more affidavits setting out the facts upon which the applicant relies together with the draft order.”

Rule 14 (1) on the other hand provides for supporting affidavits to accompany a court application which must be in Form LC I. Rule 14 (1) clearly shows the use of “shall” which suggests that it is a peremptory provision.

Rule 14 (5) however contains an exception clause. It reads as follows;

“(5) Except as otherwise provided in this rule, no affidavit which has not been served with a court application shall be used in support of the application unless it is otherwise ordered by the Court or a Judge.”

Rule 14 (5) clearly provides for the filing of any further affidavits by a party/ parties which affidavits were not attached to the court application. The further affidavit/s are admitted for use at the discretion of the court or a Judge.

Rule 21 (5)(b) also provides as follows,

(5) An affidavit filed with a written application, appeal or review —

(a)  _ _ _ _ _ _ _ _

(b)  may be accompanied by the documents verifying the facts or averments set out in the affidavit, and any reference in this Order to an affidavit shall be construed as including such documents

Rule 21 (5) (b)   clearly provides for the attachment of documents verifying the facts or averments as set out in the affidavit filed with the application.

The Applicant in this case filed a written application which was supported by a affidavit by L. Kamuka. In regards the rest of the Applicants i.e. 2nd – 32nd the Applicant included a document in which the Applicants indicated their support for the averments/facts as set out in the 1st Applicant’s affidavit. The 1st Applicant in his Founding Affidavit also made an averment that he was representing 2nd- 32nd Applicant and attached the document referred to as ‘declaration of mandate’. In light of the provisions in Rule 14 (1), 14 (5) and 21 (5)(b) there was in our view nothing irregular in this approach. This is more especially as the record shows that all the 32 Applicants save for Applicants 26 and 28 did sign the document indicating their support for the averments/facts as contained in the 1st Applicant’s affidavit. In the circumstances the 32 other Applicants save for Applicants 26 and 28 are properly before the court.

In regards Applicants 26 and 28 there was a concession by Mr Matika that they did not sign the ‘declaration of mandate’. They are consequently not properly before the Court. Their names are accordingly struck out of the proceedings.

The last issue raised by Respondent related to the issue of incongrous dates i.e. between the date of signing of the document and the date of commissioning of the document. That issue was adequately addressed by Mr Matika. There was clearly a mix-up of the papers in the record of proceedings. Although there was no proper application made by Mr Matika to amend his papers the Court was satisfied that the issue raised could be easily corrected through a proper application for amendments. The Respondent in any event was unable to show what, if any, prejudice it would suffer in that event.

In the circumstances the following order is made;

Respondent point in limine be and is hereby dismissed.

The Registrar is directed to reset the matter for hearing of the application for leave to appeal against a judgement of this court.

……………………………………

CHIVIZHE J

…………………………………… I agree

HOVE J

…………………………………… I agree

MUSARIRI J

Messrs Munyatadzi Gwisai & Partners, applicant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners