Maxwell Sabilika v Stanbic Bank & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/295/2020
HARARE, 15 MAY 2017
CASE NO.
JUDGMENT NO. LC/H/295/2020
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IN THE LABOUR COURT OF ZIMBABWE         JUDGEMENT NO. LC/H/295/2020

HARARE, 15 MAY 2017                                              CASE NO. LC/H/LRA/47/17

AND 4 DECEMBER 2020

In the matter between:-

MAXWELL SABILIKA                                      Applicant

And

STANBIC BANK                                              1st Respondent

And

AMON KOGA                                                   2nd Respondent

Before Honourable B.T. Chivizhe, Judge

For Applicant		 Mr. M. SABILIKA (In Person)

For 1st Respondent	 Mr. R. Matsikidza (Legal Practitioner)

For 2nd Respondent	 Mr. I. Chagonda (Legal Practitioner)

Chivizhe, J:

After hearing the application for confirmation that had been placed before me in terms of Section 93 of the Labour Act [Cap 28:01] the court issued an order on 1st of November, 2017 in the following terms;

“IT IS ORDERED THAT:

The 1st preliminary point is dismissed.

The 2nd preliminary point is dismissed.

The application for confirmation of draft ruling be and is hereby dismissed.

The draft ruling per Sabilika N.O. dated 22nd September, 2016 be and is hereby set aside.

There is no order as to costs.”

The 2nd Respondent having written to the Registrar seeking for reasons for the judgement these are they. Before outlining these however it is necessary to set out the background factual circumstances.

Factual Conspectus

The 2nd Respondent was employed by the 1st Respondent as a Group Real Estate, a job including managing bank property and maintaining construction projects including liaising with constructors and their parties. He was charged with a breach of the relevant code of conduct being the National Code of Conduct, Statutory Instrument 15 of 2006, i.e. Section 4(a) any act of conduct or omission inconsistent with the fulfillment of the express or implied conditions of his or her contract. The charges were levelled following a tip off to the employer of various irregularities unearthed regarding the refurbishment of the main office tower façade at the 1st Respondent Bulawayo Joshua Nqabuko Nkomo Branch.

Following a disciplinary hearing convened before the Hearing Officer the 2nd Respondent was found guilty of the charge and a penalty of dismissal was imposed. Dissatisfied the 2nd Respondent noted an appeal under the provisions of the code to the Appeals Officer. The appeal was unsuccessful and the Appeal Officer upheld the decision of the Hearing Officer. The 2nd Respondent thereafter referred an appeal to the Applicant. Upon consideration of the parties submissions and the record of proceedings the Applicant issued a draft ruling in which he nullified the 2nd Respondent conviction on the charge, and directed his reinstatement to his original position without loss of salary and benefits from the date of dismissal within 30 days of receipt of his ruling. In the event that reinstatement was no longer tenable the parties were to negotiate for payment of damages in lieu of reinstatement failing which they could approach the Applicant for quantification of the damages in lieu of reinstatement. The 1st Respondent having failed to reinstate the 2nd Respondent within the period specified, the Applicant approached this court with the application for confirmation in terms of Section 93 (5)(a) and (5)(b) of the Labour Act [Cap 28:01]. It is that application that was placed before me. The application for confirmation was opposed.

On the date of hearing the parties appeared and presented arguments. The 1st Respondent took two points in limine which had also been raised in its Notice of Opposition. Firstly, that the application was invalid as it had been cited as “STANBIC BANK” there was at law no juristic person who answered to that name. 1st Respondent referred to authorities cited. The second point in limine was that the operative part of the draft ruling by the Applicant not sounding in monetary terms the matter was prematurely before the court. The Applicant could only file an application for confirmation after quantification proceedings had been done. The 1st Respondent counsel also addressed on the merits. The 2nd Respondent in regards to the point in limine submitted that the point in limine was without merit. Reference was made to Masuku vs Delta Beverages 2012 (2) ZLR 1/12. The court was urged to find that the name cited was the one commonly known and associated with Stanbic (Private) Limited. The 2nd Respondent did not address the second point in limine either through its written or oral submissions. The 2nd Respondent did address the court in the merits. After hearing submissions by the parties the court reserved judgement. The court then handed down in the terms as referred to supra.

Although the parties had addressed the court on the merits, the matter was resolved on a fundamental issue which was the issue raised as 1st Respondent second point in limine. The issue was that the draft ruling by its nature and presentation was not executable. The ruling gave the 1st Respondent two options either to reinstate the 2nd Respondent or to pay damages in lieu of reinstatement. If reinstatement was not done and parties failed to negotiate then it was open for the parties to approach the Applicant for quantification. The court upheld this point in limine as being merited. This was the correct approach in view of the purpose of the provisions of Section 93 (5a) and (5b) of the Labour Act [Cap 28:01] which are to enable the party in whose favour an order is made by the Labour Court to be able to register the order for enforcement purposes. The draft ruling presented clearly was not registerable. It had to be sounding in money for it to be enforceable. It was for this reason the court upheld the second point in limine that the application had been brought to the Labour Court prematurely. In crafting the order however the court made an error in paragraph 2 by indicating that “The second preliminary point is also dismissed”. That paragraph ought to have read “The second preliminary point is upheld”. That error was not brought to the attention of the court on time otherwise the error would have been rectified by virtue of the provisions in Section 92 C of the Labour Act [Cap 28:01].

It is apparent however to the court that the matter may have been in any event overtaken by events. The application that was placed before me was for confirmation of a draft ruling per the Applicant. The draft ruling emanated from an appeal referred to him in terms of Section 8 (6) of the National Code Statutory Instrument 15 of 2006. Through a recent decision in Tafadzwa Sakarombe N.O 2 Another vs Montana Carswell Meats (Private) Limited SC 44/20. The Supreme Court has pronounced on the lack of jurisdiction of a Labour Officer to determine an appeal in circumstances where the dispute has already been determined on the merits by the Disciplinary/Appeals authority at the work place. The effect of the Tafadzwa Sakarombe decision is to nullify any proceedings that were before any Labour Officer in similar circumstances. The court in this case had dismissed the application for confirmation on the basis of the second point of limine. As it turns out the proceedings before the Applicant were in any event a nullity. That ought to be the end of the matter in this case.

Matsikidze & Associate, 1st respondent’s legal practitioners

Atherston and Cook, 2nd respondent’s legal practitioners