National Handling Service v Julius Muchati & 5 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/856/14
HARARE, 21st NOVEMBER, 2014
CASE NO. LC/H/APP/212/14
X REF. LC/H/198/14
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IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/H/856/14

HARARE, 21st NOVEMBER, 2014 		              CASE NO. LC/H/APP/212/14

X REF. LC/H/198/14

AND 19TH DECEMBER, 2014

In the matter between:

NATIONAL HANDLING SERVICE 			Appellant

And

JULIUS MUCHATI & 5 OTHERS			Respondent

Before the Honourable F.C. Maxwell

For Appellant: Mr G. Mhlanga (Legal Practitioner)

For Respondent: Mr T. Mafongoya (Legal Practitioner)

MAXWELL J;

This is an application for leave to introduce evidence on appeal.  The Respondents were employed by the Applicant. In 2009 Applicant introduced a retrenchment which the claimants accepted. A dispute arose regarding the payment of the retrenchment packages. The following issues were referred to arbitration.

Alleged non-payment of agreed retrenchment packages

To determine what is the quantum of retrenchment packages owed to each of the employees by the employer and whether the employer is liable to pay arrear salaries up to the date of final or full payment of retrenchment

Whether or not the employer is liable to pay 5% interest on outstanding amounts owed to the employees together with costs on a legal practitioner and client scale.

What is the appropriate remedy, if any?

The Arbitrator ruled in favour of the Applicant. On 5th March 2014 Respondents noted an appeal in this Court, challenging the legality of the retrenchment exercise. On 9th June 2014 Applicant filed the present application on the basis that the issue of the legality of the retrenchment was never put in issue at conciliation and arbitration. In response Respondents concede that this was not an issue in the court a quo but argue that it is a point of law which goes to the root of the matter and therefore can be raised at any stage even on appeal. They however argue that Applicant had opportunity to introduce that evidence in response to the appeal.

The parties are agreed as to the requirements to be considered in such an application. These are succinctly set out in the case of Farmers Co-op Ltd. vs. Border Syndicate (Pvt) Ltd 1961 R & N 28,

Could the evidence not with reasonable diligence have been obtained in time for the trial?

Is the evidence apparently credible?

Would it probably have an important influence on the result of the case, although it need not be decisive?

Have the conditions changed since the trial so that fresh evidence will prejudice the opposite party?

Respondents indirectly concede that the evidence should be admitted by arguing that Applicant had an opportunity to file as part of its response to the appeal. I find that the approach taken by the Applicant is proper. It is trite that an appeal is decided on the four corners of the record. The parties are agreed that a new issue was raised on appeal. Having conceded that the legality of the retrenchment exercise was not on issue before the Arbitrator, it is surprising that Respondents opposed this application. I found that the opposition had no merit and therefore granted the application.

Accordingly it is ordered that;

The application for leave to introduce new evidence on appeal be and is hereby granted.

The evidence stated in paragraphs 13 – 18 of Applicant’s Founding Affidavit together with the annexures be and is hereby allowed to be introduced in case number LC/H/198/14.

Respondents be and are hereby allowed to respond to the said evidence and supplementary heads of argument in case number LC/H/198/14 within 7 days of receiving Respondent’s supplementary heads of argument.

Costs shall be in the cause.

Chihambakwe, Mutizwa & Partners – Applicant’s legal practitioners

Matsikidze and Mucheche – Respondent’s legal practitioners