NMB Bank v Tawanda Mushaya & 4 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/120/16
HELD AT HARARE 27 JANUARY 2016
CASE NO
JUDGMENT NO LC/H/120/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/120/16

HELD AT HARARE 27 JANUARY 2016				CASE NO LC/H/APP/1071/15

& 4 MARCH 2016

In the matter between:

NMB BANK 						Applicant

And

TAWANDA MUSHAYA & 4 OTHERS			Respondents

Before The Honourable B S Chidziva, Judge

For Applicant					Advocate F Girach

For 1st , 2nd , 4th  & 5th  Respondents		Mr N Chikowore (Legal Practitioner)

For 3rd Respondent				Mr B Ngwenya (Legal Practitioner)

CHIDZIVA, J:

This is an application for leave to appeal against the decision of this court that was made on 7 August 2015.  This court upheld the arbitrator’s decision to disallow the employer from including new evidence.   This court in its findings stated that

“The respondents were convicted and dismiss from employment.  It would appear the appellant just wants to bolster its judgment in its favour.  Is the appellant trying to prove that the dismissal was unfair or that not sufficient evidence was led to warrant the dismissal of the respondents”

The applicant’s grounds of this application are that applicant has good prospects of success on appeal in that

The purpose of leading further evidence was  to prove that respondents were guilty beyond any reasonable doubt

This court fell into an error by closing its eyes to the provisions of rule 12 of this court which calls for flexibly and informality of proceedings in labour matters.

The applicant therefore prayed for leave to appeal to the Supreme Court so

that the matter can be further debated and adjudicated.  The applicant prayed for the following order

“It is ordered that

The appellant’s appeal be and is hereby upheld and it is hereby declared that the arbitrator Mr M Dangwa is directed to hear such further evidence as the appellant seeks to adduce.

The respondents to pay costs of the appeal.”

The 1st, 2nd, 4th  and 5th respondents submitted that the arbitrator did not err at all

because

The disciplinary proceedings pending did not warrant leading evidence to prove beyond reasonable doubt that the respondents were guilty of the charges that they were facing but only proof on a balance of probabilities sufficed.  The respondents did not change their defence during the Disciplinary Hearing but what the respondents did was to maintain it by maintaining that the bank system had completely collapsed.

The 3rd respondent raised a point in limine to the effect that the application is fatally

defective by failing to use form No LC1 as provided for in rule 14 of the labour Court rules, 2006.  The respondent further submitted that the applicant has no prospects of success on appeal in that

It is a settled principle of law that new evidence should not be introduced on appeal and is only allowed in rare circumstances.

In admitting new evidence the court considers whether with reasonable diligence the evidence could not have been obtained.

The respondents therefore prayed for the dismissal of the application for lack of

merit.

It is a trite principle of law that in a hearing an arbitrator has the same powers as the Labour Court.  This is stated in Section 98 (9) of the Labour Court Act {Chapter 28:01] as follows

“In a hearing and determining any dispute an arbitrator shall have the same powers as the labour Court.”

Some of the powers are that the court is able of its own account to require a witness to hear evidence.  This is clearly stated in rule 28 (6) (c) which states that

“the President may require any witness to give evidence on oath or affirmation.”

Rule 12 (1) of the Labour Court rules also states that

“subject to these rules, the court shall conduct any hearing in such a manner as it considers most suitable to the clarification of the issues, the fair resolution of the matters and generally the just handling of the proceedings before it.”

What is to be decided is whether this is a case where the Supreme Court should be called upon to pronounce on the powers and the obligations of an arbitration proceedings.

It is this court’s view that rule 12 is very clear and its substance does not need to be adjudicated by a Supreme Court.  The flexibility and informality provided for under rule 12 is subject to the exercise of this court’s discretion.   In my judgment I stated that the evidence which the applicant seeks to adduce was available during the initial hearing and the applicant could have obtained.  The statements which applicant sought to use were made on 3 April 2007, 26 April 2007 and 4 May 2007.  The documents were therefore already in existence and applicant could have used them at the time of the hearing on 31 May 2007.   Furthermore litigation should be brought to finality.

The 3rd respondent also raised a point in limine to the effect that the application is defective because applicant did not use an appropriate form.  In response applicant stated that the 3rd respondent had raised a “fanciful preliminary point” and that this point” has no merit and is a mere attempt at sophistry”

It is however this court’s finding that the need to comply with rules cannot be over emphasised especially where a litigant is legally represented.  The Labour Court is a court of law which is governed by a set of rules and procedures.  Therefore to say that rules should not be regarded as long as they do not create any prejudice is unacceptable.  This was also corroborated  by the case of Nyamangunda v Mashonaland Turf Club HH/125/13 where the court held that

“the duty of the court is not to allow parties to hinge their cases on technicalities.  Its sworn duty is to dispense real and substantiated justice.

The foregoing does not in any way suggest that the rules of the court should be taken lengthy or ignored by litigants.  The rules are so important that a party whose case is before the court must always make every effort to comply with them for its own benefit

The court put the rules in place as a way of ensuring that its work operates in a smooth and clearly defined manner.  The rules assist the parties to move their respective cases forward leading to a speedy resolution of disputes.  It follows that non-compliance with the rules of court by a party does, as a general rule, lead to a party’s case failing”

In view of the foregoing this court finds that the application lacks merit.

Accordingly it is ordered that

The application for leave to appeal to the Supreme Court be and is hereby dismissed with costs.

Gill, Godlonton & Gerrans, appellant’s legal practitioners

N Chikowore Gwaunza & Makore, 1st, 2nd, 4th & 5th appellant’s legal practitioners

Chinawa Law Chambers,  3rd respondent’s legal practitioners