Pharaoh Zakeyo v Heywood Investments t/a GDC Hauliers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/721/2013
HELD IN HARARE, 12 NOVEMBER, 2013 &
11TH APRIL 2014
CASE NO. LC/H/71/07
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IN THE LABOUR COURT OF ZIMBABWE 	 JUDGMENT NO. LC/H/721/2013

HELD IN HARARE, 12 NOVEMBER, 2013 &                CASE NO. LC/H/71/07

11TH APRIL 2014

In the Matter Between

PHARAOH ZAKEYO			       	APPLICANT

And

HEYWOOD INVESTMENTS

t/a GDC HAULIERS				RESPONDENT

Before The Honourable E. Makamure:	 J

Applicant	     :	In Person

For Respondent:  	Mr A. Mugandiwa (Legal Practitioner)

MAKAMURE J.

This is a determination of a point in limine which was initially dismissed by this court. It is being determined for the second time following an order of the Supreme Court. It is therefore necessary to go through the various stages leading to the present position. The present determination is done on the basis of the papers as agreed to by the parties.

The applicant was dismissed from the respondent’s employ following allegations of theft of diesel. The applicant appealed to this Court. This court (in judgement number LC/H/193/2008 by Hon President Matanda-Moyo (as she then was) at page 38 of the record of proceedings)) upheld the applicant’s appeal and ordered that:

“(1)	The appellant be reinstated to his former position without loss of salary or benefits.

(2)	Should reinstatement no longer be an option Respondent is directed to pay damages in lieu of reinstatement.

(3)	Should parties fail to agree on the quantum of damages either party can approach this court for quantification.”

Respondent appealed against that judgement to the Supreme Court. The Supreme Court on 25 January 2010 in Civil Case Number SC/147/2009 dismissed the appeal in terms of the following order:

‘The appeal be and is hereby dismissed’

The dismissal of the appeal naturally meant that the order or the judgement of the Labour Court which had been appealed against was still valid. Thus after the dismissal of the appeal the applicant proceeded to file an application for the quantification of damages.

It should be stated that had the respondent not appealed in the first place, the applicant would have filed the same application for quantification of damages in an effort to enforce the judgement of the court.

In the same vein the respondent could have opted to reinstate the applicant. This would also have been in compliance with this Court’s order. It did not. It chose to appeal. That is its right. After the appeal was thrown out by the Supreme Court the respondent could have opted to either reinstate the applicant or to award him the appropriate damages in compliance with the judgement of this Court. It was obliged to comply with the order because this was the next stage and nothing more. Failure to comply with the order of a competent court may amount to contempt of court.

After the dismissal of the appeal, the respondent did not comply with the court order, but instead and in response to the application for quantification, raised a point in limine .The point raised was that the applicant was not properly before the court because he had not complied with the provisions of Rule 14 of the Rules of this Court Statutory Instrument 59/2006 (The Rules). The respondent in the result applied that the application be struck off the roll.

Rule 14 provides as follows:-

“(1) 	A party to a dispute who wishes to apply to the Court for an order referred to in Section 89(2)(b) , (c) or (d) of the Act shall, within twenty one days from the date –

when the party received a “certificate of no settlement” issued by a labour officer in relation to the dispute in terms of Section 93(3) of the Act, or

of expiry of the maximum 30 day period allowed for a labour officer to settle the dispute, where no settlement is achieved and the labour officer did not, for any reason, issue a “certificate of no settlement” in relation to the dispute in terms of Section 93(3) of the Act, do the following –

complete three copies of a notice of application in Form LC 1; and ………….” (the rule proceeds to direct the litigants on what to do)

This court dismissed the point in limine   on the basis that the applicant was properly before the court. The court ordered the respondent to comply with its order. The respondent was aggrieved by the dismissal of the point in limine. It appealed to the Supreme Court. The Supreme Court in Heywood Investments (Private) Limited t/a GDC Hauliers v Pharaoh Zakeyo SC 32/2013 allowed the appeal and paragraph 3 of its order reads:

“(3)	the matter is remitted to the court to determine the point in limine raised by the appellant, namely that the respondent had adopted the wrong procedure in respect of the quantification of damages. In the event that the point in limine fails, the court should then proceed to properly quantify the damages due to the respondent.”

This judgment is going to deal with the first aspect of the order, namely merits of the point in limine.

Rule 14 is explicit. It refers to applications made in terms of Section 89 of The Labour Act Chapter 28:01(The Act) that is when a matter is placed before the Labour Court for the first time. Once the Court has made its determination and an appeal is made against the Court’s judgment, I am of the view that the judgement being appealed against is no longer from a labour officer even if the case may have emanated from there prior to Court proceedings. As such therefore it ceases to be an application in terms of that section.

The applicant is a self-actor who might not be acquainted with legal niceties. Further even if it were to be said that the application was in terms of Rule 14, this Court is empowered to depart from the Rules in terms of Rule 26 where the justice of the case so demands. Rule 26 provides:

“At any time before or during the hearing of a matter a President or the Court may –

direct, authorise or condone departure from any of these rules, including an extension of any period specified therein, where the President or Court is satisfied that the departure is required in the interests of justice, fairness and equity;

give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to the President of the Court to be just, expedient and equitable”

The present matter would have fallen under matters ‘not expressly provided for’. However in view of the circumstances of this case, there is no need to invoke the provisions of Rule 26. The court is always under a mandate to make directions and decisions which appear ‘just, expedient and equitable’. This ensures that there is finality to cases before it. Further it is important for parties to always bear in mind that this court deals with parties’ basic human rights. Any form of delay whether intentional or otherwise, negatively impacts on the daily lives of litigants and their families.

This matter is a continuation and not the commencement of a new matter. It is appropriate to consider the application for quantification of damages. It would be therefore inequitable in my view, to adopt the stance suggested by the respondent that the matter be struck off the roll for want of compliance. At the pain of repeating, I have to emphasise that this matter had already been determined. On appeal to the Supreme Court the appeal was dismissed. What this means is that the matter reverted to its position before the appeal. This also means that the order of the Labour Court was and is still valid. What remains is for parties to comply with it. That is why the applicant lodged an application for the quantification of damages.

Equally the respondent could have opted to either reinstate the applicant or to award him the appropriate damages.

The usual procedure in this court once an order for reinstatement or damages has been made, is for parties to enforce the judgement. They do not start again to complete forms as if they were commencing a fresh matter. I am not sure why Counsel for the respondent holds the view that the applicant ought to have completed the forms in question. Surely if that were the procedure adopted in every case, then the rate of finality to all matters which are determined by this Court would be painfully low. That is highly undesirable. There must be finality to litigation. (See Ndebele v Ncube 1992(1) ZLR 288).

The process of reaching judgment through the dispute resolution system as it is, is ardours enough. To ask parties to start afresh at the time of enforcement of a judgment would frustrate rather than encourage the intended expeditious resolution of labour disputes as envisaged by The Act. In any event I think that  the law must have a human face in order to achieve simple justice between man and man.

In view of the foregoing I find that there is no merit in the point in limine raised. The applicant should proceed to pursue his claim as directed by the Supreme Court and the parties should ensure that all relevant evidence is placed before the Court for consideration.

Accordingly it is ordered that the point in limine be and is hereby dismissed with costs.

Applicant in person

Wintertons Legal Practitioners, for the Respondent