Simbarashe Gurira v Ravemix Investments (Pvt) Ltd

### Preamble
JUDGMENT NO. LC/H/420/2014
IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE ON 17TH JUNE, 2014
CASE NO. LC/H/249/13
---------




IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE ON 17TH JUNE, 2014		 	     CASE NO. LC/H/249/13

AND 4TH JULY, 2014

In the matter between:-

SIMBARASHE GURIRA				Appellant

And

RAVEMIX INVESTMENTS (PVT) LTD		Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	Ms R.R. Matindindi (Legal Practitioner)

For Respondent 	-	Mr O. Matizanadzo (Legal Practitioner)

CHIVIZHE J,

The Appellant noted an appeal against the determination handed down by the Arbitrator on 25TH March, 2013.

The Appellant is a former employee of the Respondent. He was dismissed from employment on the 2nd of August 2011. The Appellant initially pursued conciliation before the Labour Officer and when that failed the matter was referred for compulsory arbitration. The Arbitrator on 6th of August 2012 then issued an award by which Respondent was directed to reinstate Appellant without any loss of salary and benefits from the date of unlawful dismissal. In the event that reinstatement was no longer tenable the Respondent was to pay damages for loss of employment as agreed between the parties, failing which the Arbitrator would then assess the damages. The record shows that the parties failed to agree on the quantum of damages resulting in the Appellant applying before the same Arbitrator for quantification of damages. The Respondent despite notification of the set down date failed to attend the hearing on two occasions. The Arbitrator then on 25th March 2013 granted an award in the amount of US$10 292.00 in damages. The Appellant then filed a Chamber Application for registration of the award with the High Court on the 2nd of April 2013. He 0.

also filed the present appeal against the arbitral award on the 9th of April 2013. On the 25th of June 2013 the High Court issued an order registering the award as an order of the Court. A writ of execution was consequently issued and executed upon. On the 19th of August, 2013 the Respondent paid the full amount of the writ and Sheriff’s costs in the amount of US$10 916.00.

On the 11th of October 2013 the Appellant filed a notice of amendment of his prayer in the appeal by reducing the amount he was claiming from US$16 351.00 to US$6 059.00 so as to take into account the sum of US$10 292.00 which had been paid by the Respondent in terms of the High Court order. The Respondent having failed to file its notice of response in terms of the Rules of the Court, this Court upon application granted condonation on 22nd November 2013 and directed Respondent to file its notice of opposition and Heads of Argument.

When the parties appeared before me on the date of hearing Respondent raised four points in limine. It was submitted firstly that, the Appellant, having registered the award as a judgment of the High Court and then enforced it, he was precluded from pursuing the appeal on the basis of the doctrine of peremption. Secondly is was submitted that, the Appellant, having registered the arbitral award, the arbitral award consequently became a civil judgment of the High Court which judgment had not been appealed against (by the Appellant) and set aside. The principle of res judicata consequently also applied in the matter. Thirdly it was  submitted that the appeal being premised on Section 98(10) of the Labour Act [Chapter 28:01] the appeal ought to be restricted to questions of law. All the appeal grounds however did not raise questions of law. The final point raised was that the grounds of appeal raised were essentially grounds for review and should have therefore been raised by way of a review and not an appeal. On the basis of these points in limine the Respondent urged the Court to uphold the points in limine and dismiss the appeal with costs.

The issues that fall for determination are therefore as follows;

Whether the doctrine of peremption applies in this case.

Whether the issues raised with the appeal are res judicata

Whether the appeal raises questions of law

Whether or not the appeal grounds raise issue for review rather than appeal

I shall proceed to address the issues seriatim.

At common law, the doctrine of peremption simply states that where a party acquiesces in a judgment he is deprived of the right of appeal. The doctrine of peremption was enunciated in Hlatshwayo vs. Mine Dears 1912 AD 242 as follows;

“----------- the doctrine is based upon the application of the principle that no person can be allowed to take up two positions inconsistent with one another or as it is commonly expressed to blow hot and cold to approbate and reprobate.”

The Respondent’s position in this case is that the Appellant having registered the arbitral award as a judgment of the High Court, he proceeded to enforce it. By accepting payment the Appellant communicated an intention not to pursue the appeal. He acquiesced in the judgment. The matter was thus finalized between the parties. The Appellant was thus precluded from pursuing the present appeal as the doctrine of peremption applied. Respondent relied on case authorities.

The Appellant submission was the doctrine of peremption was inapplicable to the circumstances of the case. The Appellant by appealing against the award was only appealing against the part of his claim which was not granted by the Arbitrator. There was also in principle nothing wrong in him enforcing an arbitral award that is subject to an appeal as this has been done in the past. He relied on the decision in case of Gaylord Baudi vs. Kenmark Buildings (Private) Limited HH 4-12.

I find merit in the Appellant’s argument. It is clear from a perusal of the record the Appellant’s claim before the Arbitrator was for an award of US$16 351.00 in damages in lieu of reinstatement. The Arbitrator however in his award granted damages in the amount of US$10 292.00. The Appellant sought enforcement of the award but almost immediately after noted an appeal signaling his intention to challenge the arbitral award. The Appellant did not in my view accept that the matter was finalized. For as long as he was not satisfied with the award it was open to him to challenge the arbitral award to the extent of the part of his claim not awarded by the Arbitrator. The Appellant clearly is not precluded by the doctrine of peremption from pursuing the present appeal.

The Respondent also contends that the issues raised in this appeal are res judicata between the parties. It was submitted that upon registration of the arbitral award the award became a civil judgment of the High Court. The Appellant having failed to then appeal against the judgment, the judgment brought finality to litigation between the parties. The Labour Court consequently has no jurisdiction to entertain the appeal.

The requisites for a successful plea of exceptio res judicata, which is a form of estoppel have been laid down in many decisions from Supreme Court. See for instance Wolfenden vs. Jackson 1985 (2) ZLR 313 aptly referred to by the Respondent. The  requirements for the plea are simply that the previous proceedings relied on must have been between the same parties or their privies and that the same question must arise. There is an additional requirement mentioned in Voet 44.2.3. that there must also be the same cause of action which was interpreted in the Wolfenden decision referred to supra, to mean, that the parties are estopped from disputing any issue necessarily decided by the Court in reaching its judgment in the previous proceedings.

It is common cause that there was an arbitral award issued in this case. The Appellant then approached the High Court to register the award. Registration of an arbitral award is only done for purposes of enforcement because the Labour Court has no enforcement mechanism granted it at law. Upon registration the award has the effect of a civil judgment of the High Court. See Section 98(15) of the Labour Act [Chapter 28:01]. It is clear that in registering the award the High Court has no mandate to inquire into the propriety of the award. The Court is only obliged to register the award. The Appellant in casu made it clear by noting an appeal that he is challenging the propriety of the award granted by the Arbitrator.  He is basically challenging the award on the merits which clearly the High Court has no obligation to address when registering an arbitral award. The issues raised in his appeal are clearly therefore not res judicata between the parties. It cannot be argued that it is the same cause of action before the Labour Court. His action before the High Court was for registration of an award for enforcement purposes. Before this Court is, an appeal in which Appellant is attacking the principles applied by the Arbitrator in arriving at his award. In the result and on that basis of foregoing the exception raised by the Respondent is invalid and cannot dispose of the matter.

The third issue is whether the appeal raises questions of law. The Appellant has raised three grounds of appeal in this appeal.

The grounds are as follows;-

The Arbitrator grossly erred and seriously misdirected herself on a question of law by awarding the Appellant 18 months as damages in lieu of reinstatement instead of backpay and 36 months’ salary as damages which Appellant quantified and was unopposed by the Respondent.

The Arbitrator grossly erred and seriously misdirected herself on a question of law in not realizing as she should have done that by willfully defaulting attending the quantification of damages hearing on two occasions, the Respondent waived its right to be heard and consequently failed to discharge the onus to prove that the Appellant did not mitigate his loss.

The Arbitrator grossly erred and seriously misdirected herself on a question of law in not applying the Supreme Court decision in Madyara v Globe and Phoenix 2002 (2) ZLR 269 (S) to award the Appellant backpay and 36 months’ salary as damages in lieu of reinstatement.

The Respondent’s submission was that couched as they are the grounds of law do not raise question of law. Whilst the grounds have been inelegantly presented the first and third the grounds of appeal do in my view raise questions for law. Even though no such averment is made the first ground suggests a gross misdirection on facts as to amount to a misdirection  in law. The third ground suggests a misdirection on the law as the Arbitrator applied wrong principles in quantification. The second ground to the extent that the ground raises the issue as to whether the Respondent waived its rights, which is based on the principle of waiver which the Supreme Court in Sable Chemicals vs. Easterbrooke found is not a question of law the ground is thus not based on a question of law.

The last point raised is that the ground should have been more appropriately raised in review proceedings. The basis in that the Appellant alleges that since Respondent did not appear in quantification proceedings the Arbitrator ought to have entered a default judgment in the amount of US$16 351 as claimed. The Appellant did not agree with the submission.  The point is valid in respect of ground No. 2 which as already alluded also does not raise a question of law. The ground ought to be struck out as I hereby do.

In the circumstances it is hereby ordered as follows:

The first and second points in limine are hereby dismissed.

The third and fourth points in limine succeed in respect of the second ground of appeal only.

The Registrar is directed to reset the matter for hearing on the merits based on grounds of appeal numbers (1) and (3).

There is no order as to costs.

Matsikidze and Mucheche – Appellant’s legal practitioners

Mutizanadzo & Warhurst – Respondent’s legal practitioners