Zimbabwe Revenue Authority v Chenai Nyaguse & 12 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/341/14
HELD AT HARARE 13TH MAY 2014
CASE NO
JUDGMENT NO LC/H/341/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/341/14

HELD AT HARARE 13TH MAY 2014			CASE NO LC/CON/36A/14

& 20TH JUNE 2014

In the matter between:-

ZIMBABWE REVENUE AUTHORITY			Applicant

And

CHENAI NYAGUSE & 12 OTHERS			Respondents

Before The Honourable E Muchawa, Judge

For Applicant		Mr M Sinyoro (Legal Practitioner)

For Respondents		Mr R Matsikidze (Legal Practitioner)

MUCHAWA, J:

This matter was set down as an application for condonation of late noting of an appeal.  Before me are two points in limine that were raised.

Respondents obtained an arbitral award in their favour whose operative part reads as follows;

“1.	The charges against the claimants (respondents in casu) are calculated to victimize the claimants.  They are illegal and must be stayed.

2.	The respondents (applicant in casu) is committing unfair labour practice.

3.	Each party to pay its own costs as per agreed quantum.”

At an initial hearing of the appeal respondent took the point in limine that applicant had wrongly cited respondents as “Chenayi Nyaguse and 12 Others” and the notice of appeal was therefore defective.  The court upheld the point in limine and struck off the appeal with costs.  That appeal was under case number LC/H/412/13.

In that matter applicant had applied for stay of execution which was granted.

At the time the appeal was struck off the roll, applicant was out of time in noting a proper appeal in terms of the Rules of this court hence the need to apply for condonation of late noting of an appeal.

At the hearing of the application for condonation of late noting of an appeal, respondent raised two points in limine.

The first point raised is that applicant is approaching the court with dirty hands as it has neither enforced the award in terms of section 92 E (2) and (3) of the Labour Act [Chapter 28:01.].

I was referred to the case of Associated Newspapers of Zimbabwe (Pvt) Ltd v The MINISTER OF State for Information and Publicity in the President’s Office and 2 Others SC 20/03 for the assertion that applicant should obey the law first (including a court order) and argue afterwards.  I was urged not to grant relief to a litigant with dirty hands in the absence of good cause shown or until such defiance or contempt has been purged.

Applicant referred me to the case of Sagitarian (Pvt) Ltd t/a ABC Auctions v The Workers’ Committee of Sagitarian (Pvt) Ltd ZLR 2006 (1) 115 (S) or SC 85/05.  Counsel for respondent sought to argue that there is a difference between an appeal in terms of section 98 (10) and that in terms of section 92 of the Labour Act [Chapter 28:01].  The argument was that an appeal in terms of section 98 (10) is presumed to be suspended and that position has not been varied by the Supreme Court as it was stated in the Sagitarian matter supra.  The rationale was said to be that what a statute has not expressly taken away may not be borrowed from a different provision.  The question of dirty hands was said to therefore fall away.

Respondent was quick to distinguish the Sagitarian matter supra as one that related to an interpretation of the now repealed section 97 (4) of the old Labour Relations Act.

I agree that the Sagitarian  case does not help applicant in respect to this issue.  I also note that section 92 E of the Labour Act [Chapter 28:01] is meant to apply to “Appeals to the Labour Court generally.”  The appeal to be noted by applicant would not have the effect of suspending the decision appealed against and pending such determination an, interim determination can be made.

Reference was also made to sections 65 (1) and 85 (2) of the Constitution of Zimbabwe.  Applicant made the assertion that the labour rights provided for in section 65 of the constitution should be protected and that section 85 which provides for enforcement of fundamental human rights and freedoms should be applied herein.  The provision is cited below;

“Section 85 Enforcement of fundamental human rights and freedoms

Any of the following persons, namely-

any person acting in their own interests;

any person acting on behalf of another person who cannot act for themselves;

any person acting as a member, or in the interest of a group or class of persons;

any person acting in the public interest’

any association acting in the interest of its members;

is entitled to approach a court alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or  is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.

The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection 1.”

In other words, applicant is saying that even if he is found to have dirty

hands, that should not debar him from approaching the court.

Respondents’ counsel made the argument, and I think correctly so, that section 65 and 85 (2) of the Constitution has nothing to do with the making of an application such as this one.  Section 85 (2) was said to be a limited clause which should be read with section 85 (1) as it is a subsection.

It is in this respect that the Sagitarian (Pvt) Ltd case supra is relevant.  In that case GWAUNZA JA quotes with approval from Director of Education (Transvaal) v McCagie 191 8 AD 616 as follows

“Where general words have a wide meaning, their interpretation must be affected by what precedes them, general words following upon and connected with specific words are more restricted in their operation than if they stood alone ….  They are coloured by their context and their meaning is cut down so as to comprehend only things of the same kind as those designated by specific words – unless there is something to show that a wider sense was intended.”

I am satisfied that section 85 (2) was not intended to be interpreted so as to apply to an application such as the one before me and to aid in the creation of wanton disregard of court orders and the effective delivery of justice.  If that had been the intention of the legislature then that section would not have been arranged as a subsection but a stand alone section.  (See also Lowveld Rhino Trust v Senele Dhlomo – Bhala  LC/H/229/14)

I therefore find no merit in applicant’s argument in this regard.

I find myself faced with a chicken and egg situation.  This is an application for condonation of late noting of appeal.  An application for interim relief in terms of section 92 E (3) can only be made pending the determination of an appeal.  In casu the appeal will only be filed once condonation is granted.  Upholding the point in limine in respect to the dirty hands is tantamount to barring applicant from approaching this court as he cannot exercise the option of applying for interim relief.  I therefore find no merit in this point on dirty hands.

Respondents’ second point in limine relates to the non payment of the costs awarded to them when the initial appeal was struck off.  Applicant is said to be non suited as he has not tendered costs as ordered.

Applicant’s argument is that when an award is made for costs, then the successful party is duty bound to intimate what his costs are and if disputed they are then taxed.  In this case there was no indication of what the costs were and so applicant cannot be held in a case of a withdrawal that costs would be tendered.  I agree with applicant and the case of Church of the Province of Central Africa v Jakazi and Others HH-73-10 referred to by respondent actually states that the standard practice in this jurisdiction is that a party withdrawing a matter should tender wasted costs.

Applicant submitted that respondent is looking for side issues with a view to avoid at all costs the actual justice of this matter as they make unannounced applications.  This was said to be unethical and the other side is not forewarned so as to prepare adequately.

Respondents’ position was that it would be unethical not to raise a point of law, at any time, which has the effect of assisting the court in the administration of justice.

I can do no better on this issue than take a leaf from the case of Founders Society v Dalib (Pvt) Ltd and Others 1998 (1) ZLR 525 (HC) at 529 wherein GILLESPIE J says

“The courtesy of giving fair warning to other lawyers of an intention to take a technical point is one rather jealously guarded by the profession.   … failure to give fair warning, before stapes are taken, for instance, to bar an opponent or to take a technical point, is a discourtesy.   It may result in an adverse order of costs against an attorney should costs be incurred in undoing what was done without warning.”

For the above reasons I find no merit in the two points in limine and accordingly dismiss them with costs.

Sinyoro & Partners, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners