Ravemix Investments (Pvt) LTD VS Simbarashe Gurira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/608/2013
HARARE, 30 OCTOBER 2013
CASE NO. LC/H/249/2013
JUDGMENT NO. LC/H/608/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/608/2013

HARARE, 30 OCTOBER 2013				CASE NO. LC/H/249/2013

AND 22 NOVEMBER, 2013

In the matter between

RAVEMIX INVESTMENTS (PVT) LTD				-	Applicant

Versus

SIMBARASHE GURIRA						-	Respondent

Before The Honourable B.T. Chivizhe: Judge

For The Applicant		-	C. Mucheche (Legal Practitioner)

For The Respondent	-	Mr. O. Matizanadzo (Legal Practitioner)

CHIVIZHE, J.

The Applicant (Respondent in main matter) submitted before me an application in terms of Rule 22(a) of the Labour Court rules, Statutory Instrument 59 of 2006.

The background facts are as follows:

The Respondent (Appellant in main matter) was formerly employed by the Applicant.  He was dismissed from employment on the 2nd August 2011.  The Respondent then referred matter to Labour Officer and consequently the Arbitrator.  The Arbitrator issued an award on 6th August, 2012 by which Respondent’s dismissal was set aside and Applicant was directed to reinstate Respondent with full pay and benefits from the date of dismissal.  In the event that reinstatement was no longer tenable the parties were to negotiate a quantum of damages and upon failure to agree, then the matter was to be referred to the Arbitrator for quantification of damages.

The parties failed to agree on the quantum of damages resulting in the Respondent applying for quantification.  The application was not opposed by the Applicant.  The parties were notified to attend quantification hearings on two occasions.  The Applicant did not attend resulting in the Arbitrator granting a second award on an unopposed basis on 27th March, 2013.

The Respondent then lodged his appeal against the second arbitral award.  The Registrar in terms of Rule 15(2) of the Labour Court Rules notified the Applicant of his obligation to file a Notice of Response.  The Applicant having failed to file its Notice of Response within the requisite period the Registrar set down the matter in terms of Rule 21 of the Labour Court Rules.

The Applicant’s submissions before the court were that upon receipt of the Arbitral award dated 27th of March 2013 by which the Respondent was awarded $10 000 in quantified damages the Respondent filed an application with the High Court for registration of the award.  Thereafter the Respondent then noted its appeal with the Labour Court against the same award on the 9th of April, 2013.  The arbitral award was registered by the High Court on 25th of June 2013.  A writ of execution was consequently issued on the 17th of July, 2013.  When notices of attachment and removal were served on the Applicant by the Deputy Sheriff the Applicant then paid the judgment debt in the amount of $10 000 to Respondent.  It was Applicant’s bona fide view then that the Respondent was no longer pursuing the appeal in the Labour Court.  Applicant only discovered Respondent was still pursuing the appeal upon receipt of Respondent’s notice of amendment of Respondent’s prayer filed and served on 11th of October, 2013.  The Respondent’s prayer was being amended to reduce the initial claim of $16 351 by $10 092 that had already been paid by Applicant to bring the total to $6 059.

It was Applicant’s further submission that the application ought to be granted on four grounds.  Firstly, by applying for registration and execution of the arbitral award the Respondent implied that he wanted to be paid and no longer intended to pursue the appeal.  Secondly, the principles of natural justice demanded that Applicant be given an opportunity to defend its case as it had good prospects of success on appeal.  Thirdly, it was unprocedural in Applicant’s view for a party to prosecute an appeal relating to a matter where a party has already executed judgment.  Fourthly, once an arbitral award has been registered with the High Court that becomes an order of the High Court.  It would be improper for the Respondent to proceed with appeal as the matter becomes res judicata.  In the circumstances the court was urged to exercise its discretion in favour of Applicant by postponing the matter to enable Applicant to comply with the Rules.

The Respondent in response submitted as follows;

That, the Applicant’s conduct to date clearly exhibited a lack of interest to pursue its rights.  The Applicant had twice been notified of the quantification hearing before the Arbitrator.  Applicant however failed to attend on both occasions.  The Applicant could not purport to have a keen interest at this late stage of the proceedings. The Applicant also could not seriously allege that it had been misled to believe the Respondent was no longer pursing the appeal as Respondent had filed and served heads on Applicant on 18 January 2013.  There was nothing improper in Respondent’s view in a party executing the award in order to be paid and then pursuing his appeal in respect of the contested amount.  In any event Section 98(14) of the Act gives the party in whose favour an award has been made discretion to submit the award for registration.  The inference of waiver was clearly unjustified.  Finally, it was Respondent’s contention that Applicant had not shown good cause therefore the court should proceed to exercise its discretion reposed in Rule 22(b) of the Labour Court Rules to enter a default judgment or to proceed to determine the matter on the merits.

Rule 22(a) of the Rules provides as follows;

“22 where party fails to file the notice of response

Where notice has been given to a party to file a notice of response within the period specified in Rule 14, 15 and 16 and that party fails to comply, the matter shall nevertheless be set down in terms of Rule 21 and if, on the day of hearing, the defaulting party:

appears and shows good cause why he or she did not file a notice of response, the court may according to the nature of the case, or as the justice of the case requires

postpone the matter to enable the defaulting party to comply; or

proceed to determine the matter.”

The Labour Court in terms of Rule 22(a) clearly has a discretion either to postpone the matter or alternatively determine the matter on the merits.  There are no laid down principles that the court must apply in this case, other than that the defaulting party must show good cause in order for the court to exercise its discretion in its favour.  In order to reach the conclusion the court should in my view consider the factors that are generally considered in applications for condonation such factors as; the reason for the failure to comply with the Rules, the prospects of success and the balance of convenience.

After considering submissions by both parties the court is of the view that the explanation tendered by the Applicant for its failure to note its response to the appeal sounds credible.  The Respondent having opted to, by virtue of Section 98(14) of the Labour Act [Cap 28:01], register and execute the award the Applicant was justified to hold the view that Respondent was no longer pursuing the appeal in the Labour Court.  This is so especially considering the courts have frowned upon litigants who note an appeal against judgments in their favour and then seek to execute the same judgment.  See in this respect Sibangalizwe Dhlodhlo vs The Deputy Sheriff for Marondera and Another HH 76-2011 where GOWORA J. at page 11 said;

“For a litigant to note an appeal against judgment granted in his favour and thereafter to seek to execute against the same judgment with which he has clearly expressed unhappiness is to say the least, an abuse of court process.”

Even though admittedly Applicant has been sluggish in its conduct, I believe that there are important issues raised by this matter that ought to be properly ventilated in an appeal.  For an example, whether it is procedural for a party to prosecute an appeal relating to a matter where he has already executed judgment.  Secondly, whether by so registering the award with the High Court, the award consequently becoming a civil judgment of the High Court the matter can be said to be res judicata.

It is also my considered view that the Applicant has an arguable case on the merits considering that the Respondent is now only pursuing the aspect of the balance of 18 months damages in lieu of reinstatement (which translates $6 059).  The Respondent before the Arbitrator had lodged a claim for 36 months in damages in lieu of reinstatement.  In his conclusion the Arbitrator found that it would have taken 18 months for Respondent to obtain alternative employment and awarded the same.

The balance of convenience is also clearly in favour of the Applicant who would stand to suffer prejudice after having already paid out $10 292 in damages to the Respondent for the Labour Court to then award Respondent a further $6 059 through a default judgment, as sought by the Respondent.

In the circumstances the Applicant having established good and sufficient cause for the postponement of the matter to enable it to comply with the Rules it is hereby ordered as follows;

The application in terms of Rule 22(a) of the Labour Court Rules is hereby granted.

Condonation is hereby granted to the Applicant for the late filing of Notice of Response.

The matter is hereby postponed to enable the Applicant to file such Notice of Response within 7 days of this order.

The Respondent having filed heads of argument the Applicant shall also file at the same time its heads of argument.

The Respondent may, at its discretion, file supplementary heads.

The Registrar shall thereafter set down the matter for hearing on the merits.

Matizanadzo & Warhurst Legal Practitioners, Representing the Applicant.

Mucheche Legal Practitioners, Representing the Respondent.