Methodist Church in Zimbabwe – Waddilove High School v Nicodimus Nhavira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/182/23
HARARE, 30 JUNE,2022
CASE NO. LC/H/224/22
AND 3RD JULY, 2023
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/182/23

HARARE, 30th JUNE, 2022
CASE NO. LC/H/224/22
AND 3rd JULY, 2023

METHODIST CHURCH IN ZIMBABWE –
WADDILOVE HIGH SCHOOL
APPELLANT
vs
NICODIMUS NHAVIRA
RESPONDENT

Before the Honourable B.T Chivizhe, Judge;

For the Appellant
Mr T.J. Mafongoya (Legal Practitioner)

For the Respondent
Mr S. Dube (Trade Unionist)

In attendance

Mr C. Chinyandura Officer from Employer’s Association
Mr R. Matute
Ms Makadeya
Mr R. Makotoza

CHIVIZHE, J

This is an Appeal against a determination handed down by the Designated Agent for the National Employment Council for Welfare and Educational Institutions, Honourable T. Chamisa on 18th February, 2022. The appeal is opposed.

The material background facts to the matter are as follows;

The Respondent was employed by Appellant as a Handyperson grade B2. He was employed as from 1st December 1970 to March 2021. The Appellant is a High School which is run by the Methodist Church in Zimbabwe.
 Upon his retirement in March 2021 the Appellant paid out to Respondent his pension benefits from Old Mutual in the amount of $426 698.78. The Respondent however after carrying out a comparison of his entitlement to gratuity as provided under Section 20 of Statutory Instrument 102 of 2014 with the pension paid out realised that it was more beneficial to claim for gratuity rather than pension. He approached the Appellant who then agreed to pay the difference between the two entitlements. The Appellant made an offer to pay him a certain amount. The Respondent however did not agree with the Appellant method of calculation of the ‘recognition of service’ as part of the gratuity. A dispute ensued between the parties. The Respondent referred the dispute to the Designated Agent for determination. The Designated Agent then conducted a hearing as provided under Section 63(3a) of the Labour Act [Chapter 28:01]. On 18th February, 2022 he issued his determination on the dispute as referred to him.

The Appeal

The Appellant was dissatisfied and noted the present appeal with this court. The appeal is founded on the following five (5) grounds;

1. The Tribunal grossly misdirected at law by failing to address and determine a preliminary point raised and pleaded on the record on the impropriety of the claim before the Tribunal for failure to properly cite the Respondents a quo.
2. By proceeding to mero motu, effect a ‘correctness’ on the citation of Respondent a quo without affording a quo without affording the parties an opportunity to respond and address the pleaded preliminary objection the tribunal erred at law.
3. Consequently, the Tribunal misdirected at law by proceeding to entertain a matter (causa) without properly cited Respondent.
4. The Tribunal erred at law by making a finding that in calculating gratuity, recognition of service ought to be included in the computation.
5. By failing to consider the material fact that the payment of recognition of service as part of gratuity constitute double payment, the Tribunal grossly erred at law.

The Appellant in its prayer, prays for the appeal to succeed with costs and the determination by Designated Agent T. Chamisa dated 18th February, 2022 be set aside in its entirety and substituted with the following;

“The claim filed by Mr Nicodimus Nhavira is improperly before the tribunal for citing the Respondent improperly at law. Consequently the claim is struck off”.


The Appellant prays, in the alternative, for the appeal to succeed with costs, the determination of 18th February, 2022 be set aside and substituted with the following “The claim filed by the claimant is dismissed for lack of merit”.

The appeal is opposed by the Respondent. Through the Notice of Response filed, Respondent contends that the appeal ‘does not hold water’ it ought therefore to be dismissed. The Respondent avers in his Founding Affidavit that the point raised as a preliminary point before the Designated Agent was addressed by the Designated Agent after receiving submissions from both parties. The Respondent had referred to the Designated Agent corrected submissions reflecting the correct citation of Appellant. Appellant was also served via an email to the Legal practitioners. The Respondent contends that the Appellant did not thereafter make a specific request for an oral hearing. The Designated Agent had therefore proceeded to determine the matter on the merits on the basis of parties written submissions.

On the merits, the Respondent avers that the Designated Agent correctly determined that ‘recognition of service’ is part of Respondent’s salary and had to be included in calculating gratuity. This position is as per Section 6 of the Collective Bargaining Agreement published in Statutory Instrument 268 of 2021. The Respondent has also referred to Section 20 of Statutory Instrument 102 of 2014 as providing for payment of gratuity upon retirement. On the basis of there submissions the Respondent prayer is for the dismissal of the appeal for lack of merit.

**Parties Submissions**

Mr Mafongoya, for the Appellant, in addressing the court on the Appellant’s case, emphasised that there was a preliminary point taken in proceedings a quo, which point addressed the issue of correct citation of the Appellant. Having raised the preliminary point, the Designated Agent had however failed to address the preliminary point in his award. He had simply proceeded to determine the matter on the basis of the merits. Mr Mafongoya submitted that a gross misdirection had been committed by the Designated Agent which on the basis of authorities should result in the vacation of the award by the Designated Agent. Mr Mafongoya placed reliance on the authority of PG Industries Zimbabwe (Pvt) Ltd vs Bvekerwa & 34 Others SC 53/2016; Heywood Investments (Pvt) Ltd t/a GDC Hauliers vs Zakeyo SC 32/2013 where the principle was laid that a court or tribunal cannot proceed to address merits before addressing preliminary points before it. He also referred to Grain Marketing Board v Martin Muchero SC 59/07. Mr Mafongoya also requested the court to dismiss the contention by Respondent that in view of his amendment of papers the Designated Agent was correct in thereafter proceeding to determine the matter on the merits.

He also dismissed the contention that there had been no prejudice suffered by Appellant as a result of the irregularity. His prayer was that the appeal ought to succeed on the basis of the $1^{st}$ and $2^{nd}$ Grounds of Appeal. In the $2^{nd}$ ground it was the Appellant’s position that the Designated Agent had, *mero motu*, upon his receipt of Appellant’s objection to the citation, proceeded to amend the citation. This clearly amounted to a gross irregularity. *Mr Mafongoya* referred to **Nzara**.

& 3 Others vs Kashuma N.O. & 3 Others SC 18/15 where the Supreme Court, found that a judge/tribunal cannot go on a frolic of his own to address issues. It was Appellant’s position on this basis the Designated Agent award being based on a wrong legal foundation had to be vacated. The Appellant’s prayer was for the appeal to be upheld on this second basis.

*Mr Dube*, for the Respondent, in response submitted that when he initially referred the matter on $22^{nd}$ November, 2022 to the Designated Agent he had cited the Appellant as ‘Methodist Church of Zimbabwe’. When however the Appellant raised its objection to citation as improper the Respondent had written a letter to the Designated Agent dated $11^{th}$ January, 2022 seeking the amendment/correction of the citation. A copy of the letter was also emailed to the Appellant’s legal practitioners. Mr Dube also conceded that the Designated Agent having received Respondent’s amended papers had proceeded to correct the citation as reflected in the award duly handed down by him. The Respondent’s submission was however the action by the Designated Agent was not irregular in view of the fact that the Appellant did not suffer any prejudice in the circumstances. *Mr Dube*, urged the court to disregard the authorities as referred to by Appellant as being inapplicable to the circumstances of the present case. The court was urged to find there was no irregularity the Designated Agent had correctly proceeded to determine the merits of the matter.

The Respondent was urging the court to dismiss both grounds 1 and 2.

The court has taken the option to initially address these first two grounds of appeal as if they are found to carry merit they can be dispositive of the appeal.

**Evaluation**

The appeal in this case clearly stands to be resolved on the basis of grounds number (1) and (2). It is clear upon the perusal of the record of proceedings that the Respondent having filed his papers with the Designated Agent the Appellant did raise a preliminary point on $8^{th}$ December 2021 which is reflected on page 28 of the record. The preliminary point was to the effect that
 Respondent had improperly cited the employer (Appellant) as Methodist Church in Zimbabwe. The Appellant made the point that whilst the Methodist Church had many education institutions under its umbrella it was important for Respondent to specify in his papers the institution he was litigating against. The prayer was for the claim to be dismissed for improper citation. Having raised the preliminary point the Designated Agent makes no mention of the point at all in his award. Neither does he make reference to the letter referred to him by Respondent which was written to him by the Respondent and emailed to the Appellant.

The Supreme Court has settled the point that before delving into the merits a court/tribunal ought to dispose of the preliminary point first by issuing a determination on the point. This point was made in **Heywood Investments (Pvt) Ltd v/a GDC Hauliers vs Zakeyo SC 32/2013** where in GOWORA JA (as she then was) stated as follows;

> “It is correct, as contended by the appellant, that the court a quo misdirected itself in its finding that the appellant was not entitled to raise the issue of the respondent’s failure to comply with the rules because the appellant itself had allegedly not complied with the order to reinstate the respondent. It seems to me that the court a quo to appreciate the legal issue raise by the point in limine. It is incumbent upon a court before which an application is made to determine it. A court before which an interlocutory application has been made should not proceed to determine a matter on the merits without first determining the interlocutory application”.

It is clear that, in *casu*, the designated agent failed to hand down his determination on the preliminary point. He also made no reference at all to preliminary point as raised by the Appellant or the respondent submissions in the letter addressed to him. This is clearly an irregularity.

As if that was not enough the Designated Agent then proceeded to *mero motu* amend the citation. In so doing the Designated Agent had not even heard the parties on the issue. He was in other words making a determination in favour of one party without having heard the parties. This clearly he could not do. The issue that was placed before him is of citation. Citation is a critical issue in labour matters. A litigant intending to pursue a claim against an employer must be able to clearly indicate who was the employer. This is important and has ramifications for whoever is being litigated against. In this case where the Respondent was claiming his terminal benefits it was important to cite the correct employer as to fail to do so would result in the tribunal issuing an order against the wrong party. This also explains why the Designated Agent was required to hear both parties on the preliminary point. His failure to do so clearly constituted an irregularity which warrants interference by this count through the vacation of the award.


The court was aptly referred by Appellant to the decision in **PG Industries Zimbabwe (Pvt) Ltd** vs **Bvekerwa & 34 Ors** SC 53/2014 wherein the court held as follows;

“Mr Mpofu contended before us that the absence of reasons for the judgment constitute an irregularity such as to justify interference with the judgment of the court a quo by this court. I agree. In Muchapondwa v Madake & Ors 2006(10 ZLR 196 (H), KARWI J said;

The issue to be decided is whether or not an appeal is invalid if it is noted without the appellant having requested in writing and being furnished with the reasons for a judgment or order. I do not agree with the submission by Mr Magwaliba that such an appeal is a nullity. I equally do not agree with Mr Magwaliba’s assertion that judicial office is not under obligation to provide reasons for his judgment or order. It is settled that:

‘When a matter is opposed and the issues have been argued it is unacceptable or a court to make an order without giving any reasons for it, sine the litigants are entitled to be informed of the reasons for the decisions’.

See Herbstein and Van Winsen Civil Practice of the Supreme Court of South Africa”.

It is for the above reasons the court upholds the appeal. It will not be necessary for the court to proceed to determine the rest of the grounds of appeal. The court is however alive to the fact that a dispute such as this one will still remain alive until there is resolution on the main issue. It is for this reason the court proposes to set aside the award by T. Chamisa and direct a remittal of the matter to be placed before a different Designated Agent. In view of the time this matter has taken it is proposed to have the matter be heard within two (2) months of the date of the order of this court.

In the result it is ordered as follows;

1. The appeal succeeds.
2. The determination by Designated Agent T. Chamisa dated 18th February, 2022 be and is hereby set aside in its entirety.
3. The matter is hereby remitted to be heard de novo before a different Designated Agent.
4. Such hearing should be convened within sixty (60) days of the date of this court order.

*Mafongoya and Matapura*, appellant’s legal practitioners
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