Manford Thabangu v Concorde Clothing

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/438/13
HELD AT HARARE ON 5TH & 27TH SEPTEMBER , 2013
JUDGMENT NO LC/H/438/13
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT  NO  	 LC/H/438/13

HELD AT HARARE  ON 5TH  & 27TH  SEPTEMBER , 2013    CASE NO LC/H/900/12

In the matter between:-

MANFORD THABANGU						Applicant

And

CONCORDE CLOTHING						Respondent

Before The Honourable E. MUCHAWA, Judge

For Applicant:   L. Katsiga Trade Unionist (National

Employment Council for the Clothing

Industry

For Respondent:	R. Machimbira Group Human Resources

Executive

MUCHAWA, E

This is an application which alleges that the determination of the arbitrator relating to the Applicant’s disciplinary hearing which was dated 3rd August 2007 when the hearing happened on the 8th of August 2007 was forged. The prayer is that the determination be set aside and that the Applicant be reinstated to this former position without any loss of benefits and status.

In order to understand this application and its effect I will set out the brief facts. The Applicant is a former employee of the Respondent who was dismissed in August 2007 in a matter related to that two others being Norman Nzombe and Gerald Mukundwa (herein after referred to as “the other two”). The other two had also been dismissed and they exercised their rights to appeal to the National Employment Council Appeal Board. That matter ended up in this Court under case No. LC/H/186/08. The judgment was in favour of the other two who were subsequently reinstated. The Applicant did not exercise his right to appeal and he was struck off as third the Respondent in case number LC/H/186/2008 as he was not a party to those proceedings. That was in April 2010.

On the 25th of March 2011, the Applicant approached this Court applying for an order compelling the Respondent to serve him with the determination of the hearing held on the 8th of August 2007, which was granted. Once again on the 16th August 2012, the Applicant made the same application which was dismissed by a different Judge. Thereafter the Applicant went back to the National Employment Council for the Clothing Industry requesting the same and praying for reinstatement alleging that the determination was forged. This was in September 2012. The National Employment Council Designated Agent declined to deal with this matter citing that the Labour Court had already dealt with the matter and referring the Applicant to the police to report any alleged criminal act.

On the 9th of November 2012 the Applicant lodged this current application alleging unfair dismissal and that the determination was forged by management.

In response, the Respondent claims that the Applicant is simply trying to smuggle an appeal before this Court which is out of time and is without merit as he did not exhaust domestic remedies and is bringing a matter already closed by this same Court. They alleged that the Applicant has been served with the relevant determination several times before.

In the submissions before me, the Applicant clarified that the main issue is that the date on the determination is the 3rd instead of the 8th of August 2007. In his opinion that constitutes forgery.

I found the Respondent’s explanation to be satisfactory in that the template used for the determination in respect to the Applicant was the same as that of the other two. The wrong date is therefore a typographical error which the typist forgot to change. The Applicant did not dispute that a hearing has indeed held as well as the substantive aspects of the judgment. He is only questioning the date on the determination. That, on its own is not sufficient to prove forgery as alleged. I find therefore that there is no substance in this allegation.

I now come to consider the Applicant’s prayer. As stated above, the Applicant is praying for reinstatement. This is my opinion is not a competent remedy where a technical irregularity is claimed. (See Dalny Mine v Banda 1999(1)ZLR 220 SC).

I find too that the Applicant did not exhaust domestic remedies as he never appealed before the National Employment Council Appeal Board. (See F.D. Arian and Company (Pvt) Ltd v Tsodzo and Anor 1993(1) ZLR 56 (S). I also find that in bringing the multiple applications before this Court, the Applicant seems to be attempting to smuggle an appeal before this Court. This is evident from his prayer for reinstatement. Though this was put in as an application, a reading of the Applicant’s papers clearly shows that it is in fact an appeal.

The Court will not look kindly to the recycling of cases and the abuse of Court processes which is very costly to the Court and the other party. I am persuaded to believe that the Applicant, in hind sight regrets not having lodged an appeal at the National Employment Council level as he lost out of the judgment in favour of the other two. The Applicant is the author of the situation he finds himself in and cannot abuse the Court to his benefit.

In the circumstances I order as follows:

The application/appeal being devoid of merit is dismissed with costs.