Rumbidzai Malete & 9 Ors v Civil Aviation Authority of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/508/2016
HARARE, 10 JUNE 2016 &
9 SEPTEMBER 2016
CASE NO LC/H/APP/1052/2014
---------


IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/508/2016

HARARE, 10 JUNE 2016 &			       CASE NO LC/H/APP/1052/2014

9 SEPTEMBER 2016

In the matter between

RUMBIDZAI MALETE							1ST APPLICANT

And

HOWARD ZAMBUKO							2ND APPLICANT

And

BENEDICT SHANGIWA							3RD APPLICANT

And

MONICA MAHENGA (CHIDAWANYIKA)				4TH APPLICANT

And

MARGARET KWANGWARI						5TH APPLICANT

And

FLORENCE MATIKA (TSIKWA)					6TH APPLICANT

And

EDMOND GOMO								7TH APPLICANT

And

ELISON MAKOTORE							8TH APPLICANT

And

MITCHELL CHONJA							9TH APPLICANT

And

LANGTON KADZIMWE						          10TH APPLICANT

Versus

CIVIL AVIATION AUTHORITY OF ZIMBABWE			RESPONDENT

Before the Honourable Maxwell J

For the Applicants	T Marume  (Legal Practitioner)

For the Respondent	O T Gasva (Legal Practitioner)

MAXWELL J:

This is an application for the quantification of arrear salaries and benefits following a judgment by this court in favour of the applicants. The applicants are employees of the respondent. They were appointed to acting capacities for periods beyond the six months stipulated in the Collective Bargaining Agreement S I 53 of 1992. Section 17 (2) of SI 55/92 provides:

“(2)	On completion of six consecutive months’ acting appointment, an employee shall be confirmed in that appointment.”

This court ordered the respondent to appoint the applicants in the positions they were acting from the date of completion of six consecutive months. The founding affidavit indicates that the following amounts are claimed for each of the applicants:

Rumbidzai Malete				$  5 717-00

Howard Zambiko				$  1 971-00

Benedict Shangiwa				$22 150-00

Monica Mahenga (Chidawanyika)		$63 180-00

Margaret Kwangwari				$22 309-00

Florence Matika (Tsikwa)			$  6 275-00

Edmond Gomo				$17 472-00

Elson Makotore				$29 484-90

Mitchell Chonja				$  2 980-00

Langton Kadzimwe				$  7 414-00

The founding affidavit states that the arrear salaries and benefits are calculated from the date of completion of six consecutive months in acting capacity to 24 October 2014 when the judgment of this court was handed down.

The respondent’s corporate secretary deposed to the opposing affidavit disputing the applicants’ computations. She stated what the respondent believes to be the accurate computation. She indicated that she had no issue with Monica Mahenga (Chidawanyika)’s computation and that Margaret Kwangwari, Florence Matika (Tsikwa) and Langton Kadzimwe did not act. She stated the following to be the entitlement of the rest of the applicants:

Rumbidzai Malete				$   3 028-00

Howard Zambuko				$   2 713-00

Benedict Shangiwa				$ 18 762-00

Edmon Gomo					$  5  265-69

Ellison Makotore				$10 812-60

Mitchel Chonja				$  1 210-80

On 9 March 2016 the matter was set down for hearing. Counsel for the applicants applied for a postponement of the matter on the basis that the parties had engaged each other and there was a likelihood of a settlement. The postponement was granted. When the matter was set down again on 26 May 2016 the parties had partially settled. There was disagreement on four (4) applicants and they requested for more time to negotiate. By 10 June 2016 the parties had agreed on all but one applicant. They sought a last attempt to settle and the matter was postponed to 23 June 2016. On 26 June 2016 the parties had agreed on the following as the applicants’ entitlements except for Benedict Shangiwa:

Rumbidzai Malete				$   3 120-00

Florence Matika (Tsikwa)			$   7 165-81

Margaret Kwangwari				$ 22 535-06

Howard Zambuko				$    2 742-90

Edmond Gomo				$    8 602-89

Mitchel Chonja				$    6 214-26

Elison Makotore				$  13 185-80

Langton Kadzimwe				$    7 194-60

Monica Matienga (Chidawanyika)		$120 000-00

Accordingly the amounts agreed upon are so ordered. In respect of Benedict Shangiwa the parties are not agreed. A dispute has arisen as to the grade Shangiwa occupied. Counsel for the respondent applied for leave to amend paragraph 5 (c) of the notice of response in which the respondent offered Shangiwa $18 762-00. The amendment would reduce the offer to $9 067-64. Counsel for the respondent indicated that the basis for the application is that the respondent had used wrong figures in calculating what it perceived to be the rightful amount. He stated that figures for an employee in grade 8 had been used instead of those for grade 4. Counsel was of the view that Shangiwa, who is the third applicant, would not be prejudiced as he would be able to respond to the amendment. Counsel further indicated that the application was coming late due to the negotiations that had been going on. The court requested for evidence of the respondent’s grading of the employees. There is none on record except an affidavit from Counsel for the respondent tendered on 23 June 2016 attached to the notice of amendment.

Counsel for the applicants opposed the application for leave to amend the opposing affidavit. He stated that the application amounts to a withdrawal of an admission and it is settled law that a court cannot allow a litigant to lightly withdraw an admission made in pleadings. He further stated that no cogent reason has been tendered as to why in the first place the respondent tendered the amount in the pleadings.

It is trite that an admission made in pleadings is difficult to withdraw. See The Civil Practice of the High Courts of South Africa by Herbstein and Van Winsen, 5th edition at p 588. Where the withdrawal is opposed, leave of the court to withdraw the admission will be required. The court, in order to grant leave, will require a satisfactory explanation both of the circumstances under which the admission came to be made and of the reason for wishing to withdraw it. The authors of the stated book state that amendments to pleadings and documents but not sworn statements can be sought at any stage of the proceedings (see page 673). In casu the intended amendment is in a sworn statement. In my view what the respondent is seeking is to amend or alter the evidence it had placed before the court. For the court to allow that there must be a full explanation to convince it of the bona fides of the party seeking the amendment.

What has been placed before this court is an affidavit by the respondent’s legal practitioner simply stating that the respondent’s officials had made a mistake of miscalculating the amount of money which the third applicant is entitled to. To begin with, the figure sort to be amended was tendered in an affidavit by the Respondent’s Corporate Secretary. It was not by some low level official who is not conversant with the weight attached to a sworn statement. No explanation has been given as to how the figures placed before the court are wrong. The opposing affidavit refers to annexures. The annexures appear not to be the basis of the tendered amounts. Annexure C seems to be the amount claimed by the third applicant. It is a table showing the year, old salary, current salary and the difference. A total of $22 150-00 is reflected as the overall difference. In seeking to withdraw the tendered amount, the respondent has not bothered to take the court into its confidence and explain how the tendered amount and the amended amount were arrived at in detail.

Furthermore, counsel for the respondent states that the respondent does not have a position of a buyer in its structures. The third applicant produced correspondence from the respondent indicating that he was appointed to the position of Acting Buyer for the Canteen and that at one point he was nominated with another person to purchase fuel for Airport Operations. The third applicant also produced an arbitration award which states that the employer submitted that he was an acting buying assistant. Counsel for the applicant submitted that he was an acting buying assistant. Counsel for the applicant submitted that the position of a buyer within the respondent’s structures falls in grade 8. The third applicant also produced a payslip which shows that he was being paid an acting allowance, which allowance, it was submitted, is paid to a person in grade 8. It was also submitted that the correspondence produced shows that the third applicant was appointed to purchase items for the canteen as well as fuel for the respondent’s operations. Accordingly, it was submitted that he should be awarded the sum quantified in the draft order or alternatively the amount tendered in the notice of response.

Counsel for the respondent made submissions that are tantamount to evidence from the bar. He explained that the third applicant is employed at unit level. When he was appointed acting buyer for canteen it was a supporting role, not substantive. Counsel forgot the basis of the damages that are being claimed. The Code of Conduct makes it mandatory for a person who has been in an acting position for a period of six consecutive months to be confirmed in that appointment. It therefore means that the third applicant is deemed to have been appointed as a buyer the moment six consecutive months were completed. Counsel for the respondent also submitted that to enable the respondent to compensate the third applicant for the extra duties carried out the respondent took the position that it is fair and just that the level of grade 4 be given to the third applicant since the role he performed was supportive.

In my view counsel for the respondent is not the best person to depose to an affidavit on the issues pertaining to the grading system of the respondent. The submissions made orally by counsel for the respondent needed to have been in an affidavit explaining the grading system and the justification of the amount being tendered. It would have been a different issue if the application was about procedural issues in court. In Trish Kabubi v Zimrock International (Pvt) Ltd HH 321-12 it was stated:

“Our courts and those in South Africa have previously dealt with the undesirability of legal practitioners deposing to affidavits on behalf of clients. See Samkange v Samkange HH 63-93, Dr Ibo Mandaza t/a Induna Development Projects v Mzilikazi Investments (Pvt) Ltd HB 23-07 and Hendricks v Davidoff 1955 (2) SA 369. There are exceptions to this general rule and that even in those exceptional circumstances the route should be sparingly used. The above I would add that the exceptional circumstances where the legal practitioner has to depose to an affidavit must be specifically pleaded in the affidavit.”

Counsel for the respondent has not pleaded any exceptional circumstances that made it necessary for him to depose to the affidavit on behalf of his client. Considering that the negotiations were seriously pursued as from 9 March 2016 when the parties appeared before the court and asked for time to negotiate further, there was ample time for a responsible person within the respondent to depose to the affidavit with the information that was submitted by counsel from the bar. On 10 June 2016 counsel for the applicants indicated that he had received the respondent’s offer in respect of third applicant on that day. Parties sought a last chance to seek to resolve the impasse which was granted. Again from 10 June 2016 there was ample time for the respondent’s officials to supply an affidavit on the outstanding issue and the application for amendment. Surprisingly counsel for the respondent deposed to the affidavit on the day of the hearing, on 23 June 2016. Obviously this was a hurried decision and not much thought was put into it.

NDOU J (as he then was) stated in Setha Seven Dube v Joe Solly Helfer & Ors HB-4-07 that:

“… it was improper for the legal practitioner to depose to the founding affidavit on behalf of the applicant.

The legal practitioner has no personal knowledge of the kind of averments he makes. The contents of his affidavit are mainly hearsay.

….

His affidavit being improper must be expunged from the record. Once the affidavit is so removed, the whole application falls away.”

In my view the same is true in casu. There is no one from the respondent who deposed to an affidavit in support of the legal practitioner’s assertions. I am therefore not convinced of the bona fides of the application for amendment.

Accordingly the application for amendment is dismissed.

Having dismissed the application for amendment there are two figures for the court to consider, $22 150-00 as claimed by the third applicant and $18 762-00 in the respondent’s opposing affidavit. As stated above no basis was given for the figure the respondent tendered. The agreement reached by the parties in respect of the other applicants’ awards more than what the respondent had tendered in the opposing affidavit. I find no basis for disallowing the amount claimed by the third applicant.

Resultantly the following order is appropriate:

The respondent be and is hereby ordered to pay the applicants the following arrear salaries and benefits:

Rumbidzai Malete					  $  3 120-00

Howard Zambuko					  $  2 742-90

Benedict Shangiwa					  $22 150-00

Monica Matienga (Chidawanyika)			$120 000-00

Margaret Kwangwari					$  22 535-06

Florence Matika (Tsikwa)				$    7 165-81

Edmond Gomo					$    8 602-89

Elison Makotore					$  13 185-80

Mitchell Chonja					$    6 214-26

Langton Kadzimwe					$    7 194-60

The respondent be and is hereby ordered to pay interest on the amounts at the prescribed rate from 24 October 2014.

The respondent be and is hereby ordered to pay costs of suit.

Matsikidze & Mucheche, applicants’ legal practitioners

Chirimuuta & Associates, respondent’s legal practitioners