Tobacco Processors Zimbabwe v Tongoona Mutasa & 11 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/640/16
HELD AT HARARE 18 JULY 2016
CASE NO
JUDGMENT NO LC/H/640/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/640/16

HELD AT HARARE 18 JULY 2016				CASE NO LC/H/202/16

& 21 OCTOBER 2016

In the matter between:

TOBACCO PROCESSORS ZIMBABWE			Appellant

And

TONGOONA MUTASA & 11 OTHERS			Respondents

Before The Honourable Chidziva, J

For Appellant		Advocate Chadambuka

For Respondent		Miss S Nyagura (Legal Practitioner)

CHIDZIVA J:

This is an appeal from the decision of the Tobacco Industry NEC.  The determination dated 18 March 2016 states as follows

“The appeal succeeds.  The appellants are to be reinstated for the unexpired period of the contracts without loss of pay and benefits or they are to be paid their salaries and benefits up to 30 April 2017.”

The brief history of the matter is that the respondents were engaged on a two year contract by the appellant for the period running from 1 May 2011 to 30 April 2013.  The respondents continued working until they were given other two year contracts to sign covering the period 1 May 2013 o 30 April 2015.

After 30 April 2015 the respondent continued working until 22 June 2015 when the appellant made them to sign a one year fixed contract which had clauses for probation and other conditions.  The respondents resisted to sign these new sets of contracts.  The appellant then terminated their services.  The respondents in turn appealed against the decision.  The National Employment Council for the Tobacco Industry Grievance and Disciplinary Committee found in respondents’ favour.  It is this decision that the appellant is appealing against.

When the parties appeared before this court the appellant raised a point in limine to the effect that it was not clear as to who is representing the respondents.  Advocate Chadambuka submitted that page 117 to 129 of the record featured letters that were prepared by all the affected employees stating that they knew nothing about the legal proceedings and that they are not represented by Matsikidze and Mucheche Practitioners.

It was further submitted that the respondents were never properly before the NEC.  Mr Tongoona Mutasa who is part of these proceedings also stated that these proceedings are fraudulent.  They were being forced into litigation.

Miss Nyagura who was representing the respondent stated that the respondents attended the proceedings by NEC being represented by Mr T Maruma (Pg 34) (Pg 98 – 104).

This court is going to decide whether

The matter was properly before NEC

Respondents withdrew their matter before the NEC Tobacco against the appellant.

Whether the parties were properly before NEC

Appellant has argued that the parties were not properly before the court because they were not properly cited.  However the record of proceedings (Pg 34) before the NEC on 2 February 2016 clearly shows that all the respondents were listed down as the appellant.  However the award cited the parties as “Tongoona Mutasa and 11 others.”

In the case of Zimsec Employees v Zimsec HH-430-12 it was held that the citation and the applicant as Zimsec employees was wrong.  In this case the record contained names and signatures and some of the employees comprising the applicant.  The court however held that Zimsec Employees is not a universitas. It is not a juristic person and lacks the capacity to represent the 245 employees before the arbitrator and the High Court.  The proceedings before the arbitrator and the High Court were declared void.

In the case before this court although the record of proceedings shows names of the parties the award does not state the names of all the respondents.  In that case therefore the award is null and void.

Whether the respondent withdrew the matter before the NEC

Pages 117 to 129 of the record shows letters prepared by the respondents stating that they had no knowledge of this case and that they were not represented by Matsikidze and Mucheche.  The respondent stated that on 2 July 2015 they renounced representation by their legal practitioner under duress.  They stated that the appellant had threatened them with dismissal if they did not renounce their legal representation.  They indicated that they were told that a person who did not renounce the lawyers would not be given an edited contract of employment to sign.

There is no evidence before the court to show the duress that was applied by the appellant on the respondents.  Furthermore there is no evidence on record to show that when the matter appeared before NEC in February 2016 it was under the blessing of the respondents.

What is on record is that respondents renounced Matsikidze & Mucheche as their lawyers.  It therefore means that the respondents never appeared before NEC Tobacco Industries.

The award is therefore null and void.

In the result therefore this court finds that there is merit in the points in limine that have been raised.

It is therefore ordered as follows

The  points in limine be and are hereby upheld.

The award by Tobacco Industry NEC be and is null and void.

The respondents shall pay costs.

Gill, Godlonton & Gerrans, appellant’s legal practitioners

Matsikidze & Mucheche, respondents’ legal practitioners