Shepherd Chipunza v Hammer & Tongues Auctioneers

### Preamble
Judgment No. SC 97/23
Civil Appeal No. SC 125/22
1
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REPORTABLE	(97)

SHEPHERD     CHIPUNZA

v

HAMMER     &     TONGUES     AUCTIONEERS

THE SUPREME COURT OF ZIMBABWE

BHUNU JA, MATHONSI JA & CHITAKUNYE JA

HARARE: 08 NOVEMBER 2022 & 29 SEPTEMBER 2023

R.T Mutero with C. Mucheche, for the appellant

B.M Maunze, for the respondent.

CHITAKUNYE JA.	This is an appeal against the whole judgment of the Labour Court (the court a quo) handed down on 10 September 2021 in which it dismissed the appellant’s application for condonation of late filing of an application for review.

FACTUAL BACK GROUND

The appellant was employed by the respondent as a Vehicle Sales Manager on      2 June 2014. On 4 December 2014, he was charged with gross incompetence or inefficiency in the performance of his work in terms of s 4(f) of the Labour (National Employment Code) Regulations, 2006 (SI 15/06) also referred to as the National Code. A disciplinary hearing was held and the Hearing Officer found the appellant guilty and his contract of employment was terminated. The appellant appealed the decision of the Hearing Officer to the Chief Operations Officer who did not respond to the appeal. The appellant had apparently remained at work on what respondent termed brief reengagement. On 10 April 2015, the appellant received another disciplinary determination, which stated that a disciplinary hearing had been held on 16 of February 2015. The disciplinary determination was accompanied by a letter of termination of his contract of employment which was dated 18 February 2015. The letter confirmed that the appellant had in fact been charged for acts of misconduct in terms of ss 4(f) and two counts under s 4(a) of S I 15/06. The appellant appealed to a labour officer against the second determination on the assumption that the initial disciplinary hearing and determination had been abandoned by the respondent. The Labour Officer, upon failing to conciliate, issued a certificate of no settlement and referred the matter for compulsory arbitration on 24 July 2015.  The arbitrator came to the conclusion that the appellant was unlawfully dismissed from employment and gave the following order:

“1.    The respondent to reinstate the appellant to his employment without loss of salary and benefits with effect from the date of unlawful dismissal.

2.   In the event that the employment relationship is no longer tenable the parties are directed to approach the Tribunal for quantification of damages within 14 days from the date of this award.

3.   The claimant is awarded costs on an ordinary scale.”

The respondent did not reinstate the appellant, leading to the appellant approaching the arbitrator for quantification of damages in lieu of reinstatement. The arbitrator made a quantification of damages award in the sum of RTGS 62 700.

Dissatisfied by this quantification award, the appellant appealed to the             Labour Court and the quantum of damages was increased to RTGS 68 676. Still aggrieved by the formula used in the quantification proceedings, the appellant appealed to the             Supreme Court under SC 265/20.

At the hearing of the appeal in SC 265/20, this Court queried the validity of the proceedings before the Labour Officer, Arbitrator and the Labour Court in view of the Supreme Court judgments in  Mabeza v Sandvik Mining & Construction (Pvt) Ltd SC 91/19 and  Sakarombe & Anor v Montana Carswell Meats (Pvt) Ltd SC 44/20 in which this Court reiterated  that a Labour Officer did not have jurisdiction under s 93 of the Labour Act [Chapter 28:01] (the Act), to entertain a matter once a determination on the merits had been made through a disciplinary process under a registered code of conduct.

On 12 March 2021 this Court made the following order by consent:

“The appeal being predicated on proceedings which are a nullity be and is hereby    struck off the roll.

In the exercise of the Court’s powers under s 25 of the Supreme Court Act [Chapter 7:13], we make the following orders:

The proceedings and judgment of the Labour Court of the 14th of February 2020 under judgment number LC/H/44/13 and case number LC/H/179/19 are hereby set aside.

The proceedings and the award of the arbitrator T C Sengwe dated 19 July 2019 which was for quantification of damages is set aside.

The proceedings and the award of the arbitrator T C Sengwe dated 9th of April 2018 which reinstated the appellant without loss of salary and benefits is hereby set aside.

The proceedings before the Labour Officer culminating in the referral of the matter to arbitration is hereby set aside.

(3) Each party shall bear its own costs in this court and before the courts and tribunals  a quo.”

The appellant thereafter, desirous of seeking a review of the 2015 disciplinary proceedings, albeit out of time, proceeded to lodge an ‘application for condonation for late filing of an application for review’ in the court a quo. The application was opposed.

PROCEEDINGS IN THE COURT A QUO

Before the court a quo the appellant’s counsel narrated the history of the matter after which he submitted that as the appellant was following a procedure that was being followed regarding the reference of disputes to Labour Officers, despite a determination by internal disciplinary tribunals, the appellant was bona fide in following that route. His explanation for the delay in seeking condonation for the late filing of an application for review was therefore reasonable.

On the prospects of success, counsel submitted that there were reasonable prospects of success on review. On the issue of prescription, he averred that in terms of the rules of the court, there is no provision that an application for condonation prescribes. As far as he was concerned the issue of prescription would be for the main matter.

The respondent’s counsel, on the other hand, submitted that there was no reasonable explanation provided for the admitted inordinate delay. He argued that the 6-year period that the appellant took in pursuing a wrong procedure is not a reasonable explanation given that the respondent had alerted the appellant that the route he was taking was untenable. Despite such warning the appellant had continued on that route till the Supreme Court decision on 12 March 2021 in SC265/20.

On the prospects of success, counsel submitted that there were no prospects of success as the causa had prescribed. The proceedings the appellant wished to bring on review occurred on 16 February 2015 and the appellant was duly notified of the termination of his contract of employment then. Counsel alluded to the fact that the prescription in this case is in terms of the Prescription Act [Chapter 8:11]. In the circumstances he maintained that the cause of action having prescribed, there were no prospects of success.

DETERMINATION OF THE COURT A QUO

The court a quo found that the delay in seeking review was inordinate but that the appellant had proffered a reasonable explanation for the delay. It found that the appellant had not been sitting on his laurels. He had challenged the termination of his employment by the respondent by complaining to a Labour Officer after which the dispute was eventually determined by the arbitrator in his favour. Unfortunately, the matter wound its way to the Supreme Court which nullified all proceedings post the internal determination in terms of the SI 15/06. In the circumstances the court accepted the explanation for the delay as plausible.

The court a quo, however, found that there were no prospects of success in the intended review. In arriving at that decision, the court a quo accepted the contention that the cause of action upon which the intended review was premised had prescribed in terms of the Prescription Act.

The application for condonation was thus dismissed with each party bearing its own costs.

Aggrieved by that decision the appellant noted the present appeal on 5 grounds of appeal.

GROUNDS OF APPEAL

The Court a quo erred on a question of law in finding that prescription was to be reckoned from the date of the completion of internal disciplinary proceedings as opposed to the date of the Supreme Court judgment under SC 265/20 thereby violating Appellant’s rights to equal protection of the law, property, access to justice and fair labour standards as provided for in ss 56, 71, 69 and 65 the Constitution respectively.

The court a quo erred on a question of law in not realizing as it should have done that Supreme Court judgments to the effect that a labour officer lacks jurisdiction in a matter decided by an employer in terms of an employment code of conduct were not applicable because the Appellant’s case was not finalized in terms of an employment code of conduct but properly referred to a labour officer in terms of s 101(5) and (6) of the Labour Act.

The court a quo erred on a question of law by not realizing that the jurisdiction of a labour officer in terms of s 8 of Statutory Instrument 15 of 2006 is conferred by the legislature and the constitutional doctrine of separation of powers enjoined the Court to interpret and apply the existing legislation as passed by the lawmaker.

The Court a quo erred at law in failing to find that the process undertaken by the Appellant prior to the Supreme Court judgment under SC 265/20 had interrupted prescription.

The court a quo erred at law in effectively curtailing the Appellant’s right to protection of the law by applying Supreme Court precedents in Sakarombe N.O and Another v Montana Carswell Meats (Pvt) Ltd SC 44/20 and Mabeza v Sandvik Mining and Construction (Pvt) Ltd SC 91/19 in retrospect.

SUBMISSIONS BEFORE THIS COURT.

Mr Mutero, for the appellant, submitted that the court a quo erred in placing reliance on the case of Sakarombe N O and another v Montana Carswell Meat (supra) to come to the conclusion that the appellant’s claim had prescribed. He argued that the Sakarombe case created new law and therefore it ought not to have affected the appellant’s case. Whilst acknowledging that the position in the Sakarombe case had earlier on been espoused in Watyoka v Zupco 2006 (2) ZLR170 (S), counsel submitted that the interpretation of the applicable provisions had been abandoned such that the appellant followed the procedure adopted after the Watyoka case. He also submitted that prescription would only start operating after the Sakarombe case and not before that. Counsel further submitted that the interpretation of s 8(6) of SI 15/06 that Labour Officers lacked jurisdiction to deal with appeals arising from determinations made by an internal disciplinary tribunal was incorrect. He thus maintained that the Sakarombe case was wrongly decided.

Mr Maunze, for the respondent, submitted that in as far as it is common cause that this Court in SC 265/20 nullified all proceedings post the internal disciplinary determination, it follows that prescription ought to run from 2015 when a determination was made on the merits of the dispute between the parties. He also submitted that as the nullification of the proceedings in SC 265/20 was by consent the appellant had no basis to seek to wriggle out of that consent order. Before this Court in SC 265/20 the appellant had conceded that the proceedings post the internal disciplinary determination were a nullity.

Regarding the submission that the appellant had successfully prosecuted his case and so prescription was interrupted, Mr Maunze contended that as the proceedings were a nullity one cannot say they successfully prosecuted their case. He further contended that judicial interruption of prescription requires that one must have successfully prosecuted their case to final judgment. In casu, the final judgment was a nullification of all the processes undertaken by the appellant. Counsel thus prayed for the dismissal of the appeal with costs on the ordinary scale.

ISSUES FOR DETERMINATION

Though five grounds of appeal were raised, we are of the view that it was disingenuous on the part of the appellant’s counsel to motivate grounds that sought  to impugn the order of this court in SC 265/20 when that order was by consent and its effect of nullifying all proceedings post the determination of the disciplinary hearing has not been challenged. It is trite that a change of legal practitioners, as in this case, does not per se lead to a change in the effect of an order of court granted by consent.

In Mhashu v Asani & Others HH 72/13 at p 5, MATHONSI J (as he then was) aptly remarked that:

“It is now in vogue for litigants who find themselves with court orders against them which they would have consented to or who have compromised their cases to simply change legal practitioners and then bring applications to overturn such court orders or processes without even abiding by the rules of court dealing with change of legal representation.

In my view this is not only mala fide and dishonest in the extreme, it is also a shameless abuse of court process which should be discouraged.”

In casu, the submissions by appellant’s Counsel that seek to impugn this Court’s order by consent in SC 265/20 are clearly ill conceived, if not mischievous. The appellant, in his founding affidavit in the court a quo, does not allege that he and his erstwhile legal practitioner made a mistaken concession or that the concession was tainted by any form of illegality. Further nowhere does he allege that this Court mero motu decided the issue without the participation of the parties. In paragraph 14 of his founding affidavit he deposed that:

“The parties conceded this point drawn to their attention by the Supreme Court and I instructed my legal practitioners to draw up an order by consent for presentation to the court for its consideration. The consent order subsequently granted by the Supreme Court which is attached hereto and marked Annexure D and it set aside all the proceedings before the Labour Officer, Arbitrator and the Labour Court.”

Equally grounds 2 and 3 which seek to impugn this Court’s judgments on the jurisdiction of labour officers in matters determined by internal disciplinary hearings and also that the appellant’s case was not determined in terms of a registered code of conduct exhibit a lack of candour. It is clear, and even admitted by the appellant, that the judgments of this Court are binding on him hence his concession in SC 265/20. It is also clear from the record of proceedings that the internal proceedings in issue were dealt with in terms of SI 15/06 after which the appellant complained to a labour officer. The futility of proceeding in terms of            s 8(6) of SI 15/06 by referring a matter already determined in terms of a registered code of conduct to a labour officer, has been decisively dealt with by this Court such that it should now be clear to all and sundry. It was thus highly improper for the appellant’s counsel to seek to ignore this Court’s pronouncements on that issue or to even argue that such decisions did not apply to the appellant’s case. The submission that the pronouncement on this subject in the Sakarombe case was new law is far from the truth as courts, in the ordinary run of things, merely interpret and not make the law.

In Watyoka v ZUPCO (Northern Division) 2006 (2) ZLR 170 (S) at 172F-173D this court, in considering s 101 of the Act, held that:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

the matter must not be one that is liable to be the subject of proceedings under a code of conduct;

the matter has not been determined within thirty days of the date of notification; and

where the parties to the dispute request and are agreed on the issues in dispute (s 93(1)(ii)).

……………………………………….

Subsection (6) of s 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.” (my emphasis)

And later at p 173H-174A, the Court put the issue beyond any doubt and stated:

“The s cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company’s management as provided in the code of conduct.”

It must be clear therefore that completed proceedings under a registered code of conduct are not subject to scrutiny by a labour officer. The avenue open to an aggrieved party is to approach the Labour Court on appeal or review.

This interpretation had earlier been stated in Mwenye v LONRHO Zimbabwe 1992(2) ZLR 49 (S) on similar provisions.

It is this same interpretation that GOWORA JA (as she then was) reiterated in Mabeza v Sandvik Mining and Another SC 91/19 at p8 in these words-

“In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect that a labour officer does not have any jurisdiction under s 93 to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered code of conduct. It is clear that in this case the Labour Officer presided over a matter over which he did not have any jurisdiction. As stated in Watyoka’s case (supra), once there is a determination on the merits of a dispute a Labour Officer has no jurisdiction under s 93 of the Act.”  (my emphasis)

It is trite that one ignores such profound pronouncements from this Court at their own peril. The submission that the Sakarombe case created new law and that by applying it the court applied the law in retrospect is clearly without merit.

In the circumstances the court is of the view that only one issue, which is dispositive of the appeal, calls for determination. It is also the only issue upon which the court a quo dismissed the appellant’s application.

The issue is: whether the court a quo erred and misdirected itself in finding that the appellant’s cause of action had prescribed and such prescription had not been interrupted by the judicial process undertaken.

THE LAW

In Hodgson v Granger& Anor 1991(2) ZLR 10 (H) the purpose of prescription was aptly captured in these words:

“It is important, in this exercise of interpretation, to emphasise that it is trite that the whole purpose of statutes of limitation is to ensure that a person who has a valid cause of action, of which he is aware, proceeds reasonably timeously to prosecution thereof before events become ‘stale’.  It is absolutely clear that the purpose is to penalise the dilatory creditor but not a creditor who is unaware, through no fault of his own, of the cause of action at his disposal.

Statutes of limitation serve to ensure that a party who believes that he/she has a claim against another pursues his/her claim with reasonable diligence before such a claim becomes stale. It also ensures that the claim is prosecuted on time because, with the passage of time important evidence may be lost and memories of witnesses fade. It is thus important that anyone with a cause of action they seek to pursue commence the legal process within the time frames provided by the law.

A cause of action maybe defined as a set of facts which give rise to a claim enforceable at law. Thus, a creditor who is aware of the set of facts entitling him/her to prosecute his claim is given a prescribed time frame within which to institute the claim failing which the claim will prescribe.   In the case of ordinary debts the Prescription Act provides a period of 3 years within which a creditor must institute prosecution.

As to what constitutes a debt, s 2 of the Prescription Act defines a debt in these terms:

“debt”, without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”

This definition is wide enough to include all that one can sue for such as process for review that the appellant wishes to pursue. It is in this light that s 15(d) provides that:

“The period of prescription of a debt shall be… (d) except where any enactment provides otherwise, three years, in the case of any other debt.”

In terms of s 16 prescription is reckoned from the time the cause of action arises and the creditor becomes aware of all the set of facts constituting the cause of action.

In casu, the submission by the appellant’s counsel that there was judicial interruption of prescription because the appellant had undertaken a process in which he was successful until the process was nullified by the Supreme Court on 12 March 2021 is not in sync with the provisions of the Prescription Act.

Section 19 of the Prescription Act provides for judicial interruption of prescription. It provides, inter alia, that:

“19 Judicial interruption of prescription

(1) …

(2) The running of prescription shall, subject to subs (3), be interrupted by    the service on the debtor of any process whereby the creditor claims payment of the debt.

(3) Unless the debtor acknowledges liability, the interruption of prescription in terms of subs (2) shall lapse and the running of prescription shall not be deemed to have been interrupted, if the creditor—

(a) does not successfully prosecute his claim under the process in question to final judgment; or

(b) successfully prosecutes his claim under the process in question to final judgment, but abandons the judgment or the judgment is set aside.”

In Chiwawa v Mutzuris & Others 2012 (1) ZLR 52 (S) at 56E-G GARWE JA (as he then was), after a consideration of various authorities on judicial interruption of prescription under s 19 of the Act, aptly concluded that:

“The use of the word “successfully” in subs (3) (a) is significant. The creditor is required to successfully prosecute his claim to final judgment before prescription shall be deemed to have been interrupted. He is not simply required to prosecute his claim to final judgment.

Paragraph (b) of subs (3) of s 19 has without doubt put the matter beyond argument. It has provided that if the creditor successfully prosecutes his claim under the process in question to final judgment but abandons the judgment or the judgment is set aside then prescription shall not be deemed to have been interrupted. As the respondents’ have correctly pointed out in their heads of argument, one can only abandon a judgment given in one’s favour. Similarly, in the context of subs 3(b), only a judgment in one’s favour can be set aside on appeal or review.”

See also Manjovah v Delta Beverages (Private) Ltd SC 64/21

The s is couched in clear and unambiguous terms.  Once a litigant has failed to successfully prosecute his cause of action to finality the interruption lapses and the running of prescription is not deemed to have been interrupted.

It is clear therefore that for judicial interruption to succeed a litigant must show that they were successful in the process they had undertaken; that is, that the final judgment was in their favour and has not been abandoned or set aside.

APPLYING THE LAW TO THE FACTS.

It is common cause that the proceedings the appellant wishes to take on review occurred on 16 February 2015. On 18 February 2015 a letter was written to him advising him that, despite his absconding from the disciplinary hearing, a determination was made finding him guilty of the charges laid against him and that a penalty of termination of employment was imposed. The letter also advised him of the appeal procedure to the next internal appeal authority. Though the appellant alleged that he only received the above letter on                   10 April 2015, the fact remains that a period of over 3 years had long lapsed before he decided to bring the proceedings on review. It is further not disputed that upon receipt of the determination he opted to challenge the determination by approaching the Labour Officer. The proceedings he wished to challenge having occurred over 6 years ago would ordinarily be deemed to have prescribed. The appellant’s counsel’s submission that prescription was interrupted by proceedings undertaken by the appellant, albeit such were nullified by this court, is without merit. As noted in the Chiwawa case judicial interruption of prescription can only succeed where the final judgment is in one’s favour. In casu, the nullification of the proceedings as per the order in SC 265/20 cannot by any stretch of the imagination be deemed to constitute a successful prosecution of the appellant’s claim. It is because the process was not successful that the appellant now wishes to bring on review the determination made in 2015. Clearly the appellant’s cause of action has prescribed. The submission that prescription ought to be reckoned from March 2021 when this Court nullified prior proceedings or from the date of the Sakarombe case was decided is without merit as prescription is reckoned from the time one becomes aware of the cause of action. In casu, the appellant’s cause of action is not premised on this Court’s order of 12 March 2021 but on the 2015 determination by the internal disciplinary authority. The court a quo cannot be faulted for holding that there were no prospects of success on review as the cause of action has prescribed. The appeal lacks merit and ought to be dismissed.

On costs, there is nothing warranting a departure from the norm that costs follow the cause.

DISPOSITION

The appeal lacks merit as the cause of action upon which the appellant seeks to bring the proceedings on review has prescribed. There are therefore no prospects of success in the circumstances.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

BHUNU JA: 			I agree

MATHONSI JA: 		I agree

C Mucheche & Partners Law Chambers, appellant’s legal practitioners

Mawere Sibanda Commercial Lawyers, respondent’s legal practitioners