Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Cross-Appeal

SC57-05 : FIRST BANKING CORPORATION LTD vs BALTHAZAR MARIMO
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

This is an appeal against a judgment of the Labour Court in terms of which that court quantified the amount of damages payable by the appellant (“the Bank”) to the respondent (“Marimo”), in lieu of reinstatement.

The relevant factual background may be tabulated as follows:

1. On 1 May 1997, Marimo joined the Bank as the manager of the Retail Banking Division. He had previously worked for Barclays Bank for fifteen years and for the Commercial Bank of Zimbabwe for two years.

2. On 20 July 2001, the Bank, acting in terms of section 3(1)(a) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985 (published in Statutory Instrument 371 of 1985), suspended Marimo without pay and other benefits because it believed that he had committed an act of misconduct. On the same day, the Bank applied to a Labour Relations Officer for the authority to terminate Marimo's contract of employment.

3. On 30 January 2002, the Labour Relations Officer made the following determination:

“The officer determines that Mr Marimo must be reinstated without any loss of pay and benefits, and must be paid thirty-six months' wages as (an) alternative to reinstate(ment) on top of the back-pay in terms of case no. SC19-01.”

4. On 10 April 2002, Marimo submitted to the Labour Relations Officer a document in which he had quantified his back pay and benefits as being $4,048,933=29. In addition, he had quantified his damages in lieu of reinstatement as being $20,438,843=46 which sum represented his salary and benefits for thirty-six months. In the circumstances, the document indicated that the total sum being claimed by Marimo, from the Bank, was $24,487,776=75.

5. On 29 April 2002, after Marimo had registered the Labour Relations Officer's determination with the Provincial Magistrate's Court, the clerk of that court wrote to the Bank as follows:

“You are being advised that the above determination order has been registered with us in terms of section 96(2) of (the) Labour Relations Act, Chapter 28:01.

Would you, therefore, arrange for the payment of the said sum of $24,487,776=75 within ten days of the date of this notice, failing which a warrant of execution may be issued against your property for the recovery of same.”

6. On 23 May 2002, when the sum claimed from the Bank by Marimo had not been paid within the time stipulated by the clerk of the Provincial Magistrate's Court, a warrant of execution was issued on behalf of Marimo, and two motor vehicles belonging to the Bank were attached and removed from the Bank's premises by the Messenger of Court.

7. On 12 July 2002, the Bank filed a notice of appeal in the Labour Relations Tribunal (“the Tribunal”), now the Labour Court, seeking an order setting aside the determination made by the Labour Relations Officer on 30 January 2002. No cross-appeal was filed by Marimo challenging the determination made by the Labour Relations Officer.

On the same day, i.e. 12 July 2002, the Bank filed an Urgent Chamber application in the Tribunal seeking an order staying the execution of the Labour Relations Officer's determination and releasing the Bank's motor vehicles pending the determination of the appeal. An order to that effect was issued by the Tribunal on 15 July 2002.

8. On 4 December 2002, the Tribunal dismissed the Bank's appeal with costs. The Tribunal's order reads as follows:

“In the result, it is ordered:

1. That the appeal against the Labour Relations Officer's determination be and is hereby dismissed
with costs.

2. That the appellant (the Bank) is hereby ordered to reinstate the respondent (Marimo) with no loss of salary and benefits with effect from the date of suspension.

3. That, in the event that reinstatement is no longer an option, the appellant be and is hereby ordered to pay the respondent damages in lieu of reinstatement, the amount of which the parties may agree upon, failure of (failing?) which either party may approach the Tribunal for quantification.”

In issuing this order, the Tribunal overlooked the fact that the basis on which the damages in lieu of reinstatement were to be calculated had already been determined by the Labour Relations Officer, and that, as the Bank's appeal had been dismissed, the determination by the Labour Relations Officer remained intact.

9. On 21 October 2003, Marimo, relying upon the Tribunal's order issued on 4 December 2002, approached the Labour Court for a fresh quantification of his damages. On that day, he filed written submissions claiming much more than he had claimed before the Labour Relations Officer as damages in lieu of reinstatement. He claimed many more benefits than he had claimed in the document that he had submitted to the Labour Relations Officer on 10 April 2002. In addition, he claimed that the Bank was obliged to pay him his salary and benefits until he reached the retirement age of sixty-five years. He was then fifty years old.

10. On 15 June 2004, the parties appeared before the Labour Court and the Bank filed its written submissions. In those submissions, the Bank indicated that it was prepared to pay Marimo back-pay and benefits in the sum of $4,048,933=29, as quantified by Marimo in the document submitted by him to the Labour Relations Officer on 10 April 2002. In addition, the Bank indicated that it was prepared to pay six months salary and benefits amounting to $3,406,473=90 as damages in lieu of reinstatement. After hearing the parties, the President of the Labour Court reserved her judgment.

11. On 23 August 2004, the judgment was handed down. In the result, Marimo was granted almost everything he had claimed. That included back pay in the sum of $38,234,499=. Aggrieved by that result, the Bank appealed to this Court alleging serious misdirections on the part of the President of the Labour Court.

In its notice of appeal, the Bank prayed for an order setting aside the Labour Court's order, and remitting the matter to the Labour Court for a fresh quantification of the damages payable to Marimo by a different President of that court.

However, bearing in mind the fact that the matter has dragged on for about four years, I do not think that remitting it to the Labour Court would be the best thing to do in the circumstances. In any event, I believe that the matter may be put to rest at this stage on the basis of the evidence on the record.

Although fifteen grounds of appeal were set out in the Notice of Appeal, I believe that the appeal may be disposed of on the basis of one of those grounds. That ground is that the Labour Court erred and misdirected itself in holding that the quantification of damages was to be based on the order issued by the Tribunal on 4 December 2002 and not on the basis of the determination made by the Labour Relations Officer on 30 January 2002.

In my view, this is a valid argument.

As already stated, on 30 January 2002, the Labour Relations Officer ordered that Marimo be reinstated without any loss of pay and benefits and be paid thirty-six months wages as an alternative to reinstatement. Marimo was also to receive his back-pay.

There can be no doubt that Marimo accepted the Labour Relations Officer's determination and was quite happy with it.

I say so for a number of reasons:

(i) Firstly, on 10 April 2002, Marimo submitted, to the Labour Relations Officer, a document setting out the quantum of his back pay and benefits, which was $4,048,933=29, and the quantum of the
damages to be paid in lieu of reinstatement, which was $20,438,843=46. The sum of $20,438,843=46 represented Marimo's salary and benefits for thirty-six months, the period determined by the Labour Relations Officer. The total sum claimed by Marimo was, therefore, $24,487,776=75.

(ii) Secondly, after submitting, to the Labour Relations Officer, the document setting out the quantum of his damages, Marimo registered the Labour Relations Officer's determination with the Provincial Magistrate's Court in terms of section 96(2) of the Labour Relations Act [Chapter 28:01]. The effect of that registration was that, for purposes of enforcement, the determination had the effect of a civil judgment of the Magistrate's Court.

(iii) Thirdly, after the registration of the determination, the clerk of the Provincial Magistrate's Court wrote to the Bank calling upon it to pay the sum of $24,487,776=75 within ten days, and indicating that if it was not paid within that period a warrant of execution would be issued in order to attach the Bank's property and sell it. That letter was obviously written with Marimo's approval.

(iv) Fourthly, when the sum claimed was not paid within the stipulated period, Marimo caused a warrant of execution to be issued by the Magistrate's Court, and two motor vehicles, belonging to the Bank, were attached and removed from the Bank's premises by the Messenger of Court on 23 May 2002. The vehicles were only released after the Bank was granted an order for their release by the Tribunal.

(v) Finally, when the Bank noted an appeal to the Tribunal against the determination by the Labour Relations Officer, Marimo did not note a cross-appeal challenging the determination.

When the Bank's appeal was subsequently heard by the Tribunal it was dismissed with costs.

That meant that the determination by the Labour Relations Officer remained intact and that the total sum payable by the Bank, to Marimo, was $24,487,776=75. There was, therefore, no valid basis on which Marimo subsequently approached the Labour Court seeking a fresh quantification of damages, and his application should not have been entertained.

As far as the Bank is concerned, it would appear from the Labour Court's judgment that when the quantum of damages was debated in that court the Bank did not seriously challenge the quantum arrived at by the Labour Relations Officer. The same approach was adopted by the Bank in this Court.

Finally, with regard to costs, it seems to me that the most appropriate order is that each party should pay its own costs.

In the circumstances, the following order is made:

1. The appeal is allowed, with each party paying its own costs.

2. The order granted by the Labour Court is set aside, and the following is substituted:

“(a) The application for a fresh quantification of damages is dismissed with no order as to
costs.

(b) First Banking Corporation Limited shall pay, to Marimo, the sum of $24,487,776=75, together with interest at the prescribed rate from 30 January 2002 to the date of payment in full.”

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

This is an appeal coupled with a cross-appeal against the judgment of the Labour Court.

Both appellants, in the main appeal, and the respondent in the cross appeal, Emmerson Pamire, were employed by the respondent. Following leakages of confidential information at the work place, the respondent ordered them to sign declaration of secrecy forms. They wilfully disobeyed that order and were suspended from employment pending disciplinary action.

As managerial employees, the first and second appellants had been issued with motor vehicles by their employer. Upon suspension, they were ordered to return the motor vehicles. They both wilfully refused to return the motor vehicles as ordered by the employer.

All the three (3) employees were eventually charged with wilful disobedience to lawful orders before the Disciplinary Authority. They were all found guilty as charged and dismissed from employment on 28 November 2013.

Disgruntled by their dismissal from employment, they approached the Labour Officer, who, in turn, referred the dispute for arbitration in terms of section 93 of the Labour Act [Chapter 28:01].

The terms of reference before the arbitrator, branded, “CLAIMANTS' ISSUES FOR DETERMINATION” were as follows:

“Whether or not the dismissal of the three claimants was fair and lawful?

1. Whether or not the employer was entitled, at law, to institute fresh disciplinary proceedings without complying with the Supreme Court order of 16 July 2013 ordering them to reinstate the claimants without loss of salary and benefits?

2. Whether or not it was lawful for the employer to charge first and third claimants with wilful disobedience of lawful orders arising out of their failure to handover vehicles when the matter of ownership and possession of the vehicles was sub judice (the subject of a legal dispute) which is still pending in the High court in case numbers HC6419/2010, HC6420/10, HC4233/10 and HC4258/2010 which cases were all consolidated under case number HC4258/2010 for purposes of trial?

3. Whether the labour dispute leading to the disciplinary proceedings instituted by the respondent against claimants on 17 July 2013 had prescribed in terms of section 94 of the Labour Act Chapter 28:01 and whether the respondent had a right to charge the claimants for misconduct over the events that allegedly occurred on August 2009?”

The arbitrator, on the basis of the terms of reference placed before her, found that the employer's orders were lawful as they were meant to advance the employer's business. She accordingly upheld the claimants' conviction. She, however, overturned the penalty of dismissal and substituted it with a lesser penalty of final written warning.

The award reads:

“AWARD

1. The Respondent, Zimbabwe Manpower Development Fund (ZIMDEF), be and is hereby ordered to substitute the dismissal penalty with a final written warning valid for twelve (12) months.

2. Respondent be and is hereby ordered to reinstate the claimants without loss of pay and benefits from the date of dismissal.

3. If reinstatement is no longer tenable parties may negotiate for damages in lieu of reinstatement failure of which either party my approach the arbitrating authority for quantification.”

Dissatisfied with the above order reinstating the three (3) respondents, the employer appealed to the Labour Court. The respondents did not, however, cross-appeal against the arbitrator's award upholding the Disciplinary Authority's verdict convicting them of dismissible acts of misconduct as charged.

The second respondent, in the court a quo, Emmerson Pamire, was, however, partially successful in that Court. The court a quo set aside the arbitrator's award and upheld the decision of the Disciplinary Authority dismissing the first and third respondents from employment as prayed for by the employer.

The appeal against the reinstatement of the second respondent, in the court a quo, was, however, unsuccessful in that the court a quo upheld the arbitrator's order of reinstatement. The court a quo's order reads:

“WHEREFORE IT IS ORDERED THAT:

1. The appeal be and is hereby allowed.

2. The arbitration award issued by arbitrator C K Kadenga dated 8 December 2015 is set aside.

3. The dismissal from employment of 1st and 3rd respondents (Tendayi Tamanikwa and Frank Tinarwo) by appellant is upheld.

4(a) The appellant shall reinstate the 2nd respondent Emmerson (Emmerson Pamire) without loss of salary and benefits; or

(b) If reinstatement is no longer tenable, appellant shall pay 2nd respondent damages in such (sic) either agreed by the parties or assessed by this court.”

Unhappy with the Court a quo's judgment, ordering their dismissal from employment, the first and second appellants, in the main appeal, Tendayi Tamanikwa and Frank Tinarwo, appealed against part of the court a quo's judgment upholding their dismissal from employment. Having appealed only against part of the judgment, they erroneously went on to pray for the setting aside of the whole judgment.

The Notice of Appeal reads:

“TAKE NOTICE that the Appellants hereby appeal against part of the judgment of the Labour Court…,.”…,.

Whereas the relief sought reads as follows:

“RELIEF SOUGHT;

The appellants seek the following relief:

1. That the appeal is allowed with costs.

2. That the judgment of the court a quo is set aside and in its place substituted by the following:

2.1 The dismissal from employment of the 1st and 2nd appellants be and is hereby set aside.

2.2 The Respondent shall reinstate the 1st and 2nd Appellants without loss of salary and benefits with effect from their date of dismissal.

2.3 If reinstatement is no longer suitable, the Respondent shall pay damages to 1st and 2nd Appellants without loss of salary and benefits in an amount to be agreed or assessed by the Labour Court.”…,.

It is plain that the Notice of Appeal and the relief sought by the appellants are irreconcilably contradictory. It is rather irrational for the appellants to appeal against only part of the judgment and then seek to have the whole judgment set aside.

The learned Chief Justice, in his routine supervisory and administrative functions, noted the fatal irregularity and engaged counsel for the appellants with a view to enlighten him about the fatal defect in his Notice of Appeal.

His extra curial intervention was made in good faith to avoid clogging the court with fatally defective appeals. As the Chief Justice was not presiding over a court but merely performing his administrative function there was nothing he could do to prevent counsel from taking his patently defective Notice of Appeal to court.

Disputing the fatality of the defects in his Notice of Appeal, counsel for the appellants steadfastly stuck to his guns and refused to take the learned Chief Justice's wise counsel. It however dawned on counsel, later on, that his Notice of Appeal was defective.

He then filed an application to amend the defective Notice of Appeal on 6 September 2017.

In his application to amend the Notice to Appeal, counsel for the appellants acknowledged that the Notice was defective for want of compliance with Rule 7(b) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 in two material respects, namely:

1. The mis-naming of the parties in the prayer as described at sub paragraph 2.2; and

2. The non-statement in paragraph 2 of the prayer that only part of the judgment of the court a quo should be set aside.

While accepting that his Notice of Appeal was defective, counsel for the appellants sought to persuade the court that the above defects in his Notice of Appeal were not fatal as they are capable of being amended.

Rule 7 is however couched in peremptory terms admitting no exception. It reads:

“7. Contents of Notice of Appeal

A notice instituting an appeal shall state —

(a) The tribunal or officer whose decision is appealed against; and

(b) The date on which the decision was given; and

(c) The grounds of appeal; and

(d) The exact nature of the relief sought; and

(e) The address of the appellant or his legal representative.”…,.

It is settled law that, save in exceptional circumstances, the term 'shall', denotes the law maker's intention to render the Rule mandatory.

This Court has ruled, on numerous occasions, that failure to comply with mandatory provisions of the Rules of court will render an appeal a nullity.

In Chikura and Another v Al Sham's Global BVI Limited SC17-17 ZIYAMBI JA had occasion to remark that:

“The Rules are made for the proper running of the Court. Failure to comply with its mandatory provisions will render an appeal a nullity. See Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).”

In Freezewell Refrigeration Services (Private) Limited v Bard Real Estate (Private) Limited SC61-03, this Court held that a fatally defective appeal cannot be condoned or amended. It can only be struck off.

The Notice of Appeal, in this case, is, therefore, fatally defective and a nullity at law. For that reason it is incurably bad and beyond repair.

The authorities are clear, and it is now a matter of settled elementary law, that, when a proceeding is a nullity every proceeding based on it is also a nullity as observed by KORSAH JA in Ngani v Mbanje & Another; Mbanje & Another v Ngani 1987 (2) ZLR 111…, where the learned judge, relying on the dicta in McFoy v United Africa Company Ltd ALL ER 1169 remarked that:

“If an act is, in law, a nullity, it is not only bad, but incurably bad. There is no need for the order of the Court to set it aside. It is automatically null and void without more ado. Though it is sometimes more convenient to do so. And every proceeding founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”…,.

What this means, in simple terms, is that the application to amend the fatally defective appeal is also in itself fatally defective and a nullity at law.

For the foregoing reasons, this Court unanimously holds that both the Notice of Appeal and the application to amend are fatally defective warranting being struck off without any further ado.

Counsel for the respondents, in the main appeal, has asked for costs on the higher scale. Counsel for the applicants sought to resist costs at the punitive scale arguing that the Chief Justice was not sitting as a court and therefore he was at liberty to disregard his caution.

It is correct that the Chief Justice was not sitting as a court but his views mattered. The administrative function to scrutinise court records and engage lawyers before going to court is a noble objective meant to save time and money by nipping defects in the bud before they get to court.

While counsel for the applicants was not bound by the learned Chief Justice's opinion it was wise to take heed of his caution unless he was sure of what he was doing. Had he taken heed, he would not have taken a dead case to court wasting everyone's time and putting the other party to unnecessary expense.

Those who deliberately defy wise counsel and go on to negligently cause others patrimonial loss must not cry foul when they are made to make good the loss.

Costs at the punitive scale are therefore warranted.

It would, in the court's view, be unjust for counsel for the appellants clients to bear the burden of making good the loss when it is his questionable conduct that caused it.

Legal practitioners must be warned that this is the sort of conduct that may attract costs de bonis propriis. By negating sound advice and incurring unnecessary costs in the process, counsel for the appellants was doing his clients a disservice. For that reason, the court considered that it would be patently unjust and unfair to allow him to benefit from his indecorous conduct.

It is for the foregoing reasons that the court proceeded to issue the following order:

“Whereupon, after reading papers filed of record,

IT IS ORDERED THAT:-

1. The application to amend the Notice of Appeal is dismissed with costs on the higher scale.

2. The Applicant's Counsel, Mr. G Machingambi, is barred from charging fees to his clients for the application to amend the defective Notice of Appeal.

3. The cross-appeal is to be heard.”

Turning to the cross appeal, the appellant is appealing against the reinstatement of the respondent, Emmerson Pamire, to his former employment.

The main appeal was dismissed with costs at the legal practitioner client scale leaving the concerned parties to argue the cross-appeal.

I now proceed to consider the cross-appeal.

The facts giving rise to the cross appeal are by and large common cause. The undisputed facts are that the disciplinary authority convicted the respondent of wilful disobedience to a lawful order to sign declaration of secrecy forms and ordered his dismissal from employment. He appealed to the arbitrator who upheld the conviction but reduced the penalty of dismissal to one of final written warning. The arbitrator then ordered his reinstatement without any loss of salary or benefits. In the alternative, the court a quo ordered damages to be assessed in the event that reinstatement was no longer possible.

The appellant appealed to the court a quo against the order to reinstate the respondent. The respondent did not, however, cross-appeal against the arbitrator's verdict upholding the disciplinary authority's verdict of guilty.

The respondent's failure to cross appeal against conviction can only mean that he accepted his guilt as charged. All he was challenging in the court a quo was the severity of punishment and not his conviction. His plea in the court a quo was one for mercy rather than a denial of misconduct as alleged.

As none of the parties questioned the correctness of the guilty verdict, and, in the absence of a cross-appeal, the appeal in the court a quo fell to be determined on the basis of the issues raised by the appellant in its grounds of appeal which were laid down before the court as follows:

“1. The arbitrator erred, on a question of law, by substituting the employer's discretion to impose a dismissal penalty.

2. The arbitrator erred on a question of law by not realising that the respondent(s') misconduct went to the root of their employment contract(s) thereby justifying a dismissal penalty.

3. The arbitrator grossly erred and misdirected himself that she had no jurisdiction on the second count against the respondents as per section 4(2)b of the Arbitration Act.

4. The arbitrator grossly erred and misdirected herself at law by failing to find that the appeal to the internal appeals officer was filed out of time.”

From the above grounds of appeal it is self-evident that the question of liability was not one of the issues to be determined by the court a quo as that issue had already been conclusively determined by the lower adjudicating authorities. It was therefore remiss of the court a quo to determine an issue that was not before it when it held at page 3 paragraph 5 of its cyclostyled judgment that:

“5. All respondents were not guilty of the charge related to the secrecy document.”

By framing and determining its own issue not raised by the parties, the court a quo erred and strayed into the wilderness of illegality.

The respondent's failure to challenge the question of liability amounts to an admission of guilt.

It was therefore grossly irrational for the court a quo to find the respondent not guilty as charged in circumstances where he was virtually pleading guilty to the charge.

It being common cause that the respondent committed a dismissible act of misconduct, it was within the employer's discretion to terminate his employment contract.

Following the exercise of that discretion, there was no proper or compelling reason advanced as to why the court a quo, or anyone else for that matter, should interfere with the exercise of that discretion.

In the absence of any cogent reason for interfering with the employer's discretion, the respondent's fate was sealed.

The words of ZIYAMBI JA, in Mashonaland Turf Club v Mutangadura 2012 (1) ZLR 183 (S), are worth recounting where she says:

“In the exercise of their powers, in terms of section 12B(4) of the Labour Act, the Labour Court and Arbitrators must be reminded that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it. In the absence of misdirection or unreasonableness, on the part of the employer, in arriving at the decision to dismiss an employee, an Appeal Court will generally not interfere with the exercise of the employer's discretion to dismiss an employee found guilty of misconduct which goes to the root of the contract of employment.”

It is an implied term of every employee's contract of employment not to make unauthorised disclosure of his employer's secrets. The refusal by the respondent, in the cross-appeal, to sign the declaration of secrecy was, therefore, a fundamental breach of his implied term of employment in this respect.

An employer cannot be blamed for offloading an employee who refuses to be bound not to disclose his trade secrets. The need for confidentiality in an employer/employee relationship cannot be over-emphasized. For that reason, it cannot be said, by any stretch of the imagination, that the appellant in the cross-appeal acted irrationally or unreasonably when it terminated the contract for wilful refusal to sign the declaration of secrecy. No sane employer would be comfortable employing an employee whom he cannot trust to keep his secrets.

In the result it is ordered that:

1. The cross appeal is allowed with costs.

2. The judgment of the court a quo is partially quashed to the extent that it set aside the respondent's conviction on the charge of wilful disobedience of a lawful order, and, consequently, paragraph (4) of the operative part of that judgment is set aside and substituted as follows:-

“The appeal is allowed with costs, the arbitral award is set aside in respect of the penalty of a final written warning imposed upon the respondents, and, consequently, the respondents' dismissal from employment is confirmed.”

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

After hearing argument from counsel, we allowed the appeal in this matter and made the following order:

1. The appeal is allowed with costs.

2. The judgment of the Labour Court is hereby set aside and substituted as follows:

(i) The appeal is dismissed with costs.

(ii) The appellant shall reinstate the respondent to his former position without loss of salary and benefits or pay damages to the respondent in lieu of reinstatement.

We further indicated that the reasons for our decision would follow in due course. These are the reasons.

BACKGROUND

The appellant was employed by the respondent as a Stores Clerk. On 12 February 2009, he issued a hydraulic pump to another employee without recording the issuance in the Stores Book. After the disappearance of the pump, the co-employee was convicted of theft. The appellant himself was also charged but later acquitted.

Following internal disciplinary proceedings, the appellant was dismissed.

The matter was referred to the relevant National Employment Council and then to an arbitrator. The latter referred the case back to the respondent's Disciplinary Committee to rehear the matter. The Disciplinary Committee found the appellant guilty of theft and that decision was confirmed by the respondent's Appeals Committee.

On appeal to the National Employment Council, it was ordered that the appellant be reinstated.

The respondent then appealed to the Labour Court on the ground that the appellant should have been found guilty of theft.

The Labour Court found the appellant not guilty of theft on the basis of what it regarded as purely circumstantial evidence. Instead, it found him guilty of negligence because of his apparent admission to that effect in the proceedings before the Disciplinary Committee. The court took the view that negligence was a competent verdict on a charge of theft. It also found that the appellant's negligence had resulted in prejudice to the respondent, and, therefore, constituted a grave offence warranting dismissal for a first offence. The court set aside the conviction of theft and substituted a conviction of negligent performance of duty resulting in loss to the employer. It then confirmed the penalty of dismissal.

The appellant now seeks an order for his reinstatement or damages in lieu thereof. His grounds of appeal are threefold:

(i) That the applicable Code of Conduct only permits dismissal for negligence following two prior warnings;

(ii) That the court's finding of negligence was not the subject of appeal; and

(iii) That negligence is not a competent verdict on a charge of theft.

I shall deal, firstly, with the last ground of appeal.

NEGLIGENCE AS COMPETENT VERDICT ON CHARGE OF THEFT

As a general rule, the standard of proof required in disciplinary matters is that on a balance of probabilities. This is obviously not as stringent as the standard required in criminal cases.

By the same token, a disciplinary tribunal is endowed with a greater measure of flexibility than that expected before a court of criminal law. Nevertheless, there are certain basic principles that neither a court nor tribunal can depart from.

One of those principles is that the offence that the accused is found guilty of must be commensurable with the offence that he has been charged with. In other words, both offences must bear some legally cognisable affinity with one another.

In our criminal law, as is probably the case in any other legal system, the essential elements of theft and offences based on negligence do not share any meaningful convergence. They are sui generis and fundamentally distinct offences. In my view, the same must apply to the treatment of these offences qua acts of misconduct in disciplinary matters.

This is clearly recognised in the Employment Code of Conduct applicable in the present matter – as prescribed in the Collective Bargaining Agreement: Engineering and Iron and Steel Industry (S.I.301 of 1996), amending the principal agreement contained in Statutory Instrument 282 of 1990, S.I.282 of 1990.

The Schedule to the Code of Conduct sets out four broad categories of misconduct and defines the diverse offences constituting misconduct. Negligence is identified as an act of misconduct under item B(4)(b), while the specific offence of theft is captured under item D(c).

They are clearly separate and distinct acts of misconduct.

The appellant in casu was charged with theft as defined in item D(c). The Labour Court found him guilty of negligence. That finding of negligence was clearly not a competent verdict on the particular charge of theft preferred against the appellant. In this regard, the court patently ignored the specific provisions of the Code of Conduct that should have guided its decision in the matter.

In short, as was conceded by counsel for the respondent, in his curious but not inappropriate reference to a malapropism having been committed, the court's finding was grossly erroneous.

DISMISSAL WITHOUT PRIOR WARNINGS

Insofar as concerns the penalties that may be imposed for proven acts of misconduct, the Code of Conduct is very clear and specific as to what may or may not be done. By virtue of section 5(6)(b):

“An employee may only be dismissed by the commission of an act of misconduct for which the appropriate penalty, in terms of this Code, is dismissal.”

In relation to the offence of negligence, specified in item B(4)(b) of the Schedule, a first offence calls for a written warning and a second offence invites a last written warning. It is only the commission of a third offence of negligence that attracts the drastic and ultimate penalty of dismissal.

The record in casu shows that the appellant was given a “valid warning” in 2007. However, it is not clear whether this was a first or second warning or whether it was one given in writing. Moreover, there is no indication as to whether this warning was for negligence or some other offence.

Thus, even if it were to be accepted that negligence is a competent verdict on a charge of theft, and that there was clear evidence of negligence on the part of the appellant, the penalty of dismissal imposed by the Labour Court was clearly ultra vires the Code of Conduct and therefore invalid.

Again, the court appears to have disregarded the requirements of the Code of Conduct and thereby committed a further fatal error.

POWER TO SUBSTITUTE DECISION OR ORDER

Section 89 of the Labour Act [Chapter 28:01] regulates the functions, powers, and jurisdiction of the Labour Court. Section 89(2), in its relevant portion, provides that:

“In the exercise of its functions, the Labour Court may –

(a) In the case of an appeal –

(i) Conduct a hearing into the matter or decide it on the record; or

(ii) Confirm, vary, reverse or set aside the decision, order or action that is appealed against, or substitute its own decision or order.”

It is axiomatic, in criminal as well as disciplinary proceedings, that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict on the offence originally charged.

The reason for this is obvious, viz: The person accused must be made aware of the case against him in order to enable him to effectively prepare his defence.

In this context, notwithstanding the provisions of section 89(2)(a)(ii) of the Labour Act, the Labour Court cannot, mero motu, substitute its own charge or make a finding of guilt on an entirely different offence.

Any such action would constitute a blatant miscarriage of justice: see Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR (S)…,.

Furthermore, sitting as a Court of Appeal, it can only deal with the matter on the basis of the grounds of appeal that have been raised by the appellant: see Chikanda v United Touring Company Limited SC07-99…,.

In the instant matter, it is not in dispute that the appellant was never at any stage charged with negligence. Moreover, the grounds of appeal before the Labour Court were confined to theft, without any reference to negligence, and negligence was not canvassed by the parties in the proceedings before it.

What the court did, by finding the appellant guilty of negligence, was to usurp the functions of the respondent's Disciplinary and Appeals Committees.

It follows that the court fundamentally erred in its finding of negligence, as that was an issue which was clearly not the subject of the appeal before it.

DISPOSITION

It seems necessary, before concluding this judgment, to make one observation regarding the conduct of the appellant himself.

Having regard to the record as a whole, it seems that the Labour Court failed to take into account the totality of the evidence before it. Quite contrary to its finding on the charge of theft, the facts of the case suggest that there was ample evidence, albeit circumstantial, to indicate that the appellant was indeed guilty of theft.

Regrettably, for the respondent, it neglected to file any cross-appeal on this point. Had it done so, the outcome of this matter might have been entirely different.

In any event, the appeal must be allowed on all of the grounds of appeal framed by the appellant.

It was for the above reasons that we allowed the appeal and set aside the decision of the Labour Court.

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

This matter came before me as an urgent application.

After having sight of the opposing papers filed by the respondents, I concluded that the matter was not urgent, and, by agreement of the parties, it was enrolled on my roll of opposed matters as all parties had filed all the necessary affidavits and heads of argument.

The dispute arises out of the registration of an arbitral award by this court at the instance of the applicant.

Subsequent to the said registration, the applicant caused a writ of execution to be issued by the Registrar of this Honourable Court. The writ was served by the first respondent who attached a number of assets belonging to the fourth respondent.

When the first respondent attended at the fourth respondent's premises to remove the attached goods, the third respondent, a firm of legal practitioners engaged by the fourth respondent, intervened and allegedly advised the first respondent that the order of this court had been stayed by an order of the Labour Court.

Thereafter, the legal practitioners for the applicant, on the one hand, and those representing the fourth respondent, on the other, engaged in correspondence whose tone descended with each letter, culminating in each of them hurling insults, threats, and counter accusations.

It is sad to record that insults were traded between the legal practitioners of the applicant and the respondents.

Needless to say, the first and second respondents were not spared from this barrage.

I think it it is pertinent to remind legal practitioners, that, the second respondent and his deputies are officers of this court. In the performance of their duties, they are supposed to be impartial.

If there exists a dispute between parties, it would be foolhardy for the second respondent, especially, to be seen to be taking the side of one party against another.

If there is a court order which has been granted staying execution, as happened in this case, the second respondent cannot be expected to conclude that the court order is irregular and should be disregarded. That would lead to a breakdown in the rule of law as well as a complete disregard and breakdown of the judicial system.

For the applicant to suggest, as he did, that, the first and second respondents ought to have, upon his demand, overlooked the existence of the order of the Labour Court and proceeded to levy execution in his favour 'because the order was clearly wrong', is, to my mind, tantamount to encouraging any official to disregard orders of the courts of this country.

The respondents have no capacity to decide if an order is incompetent or otherwise. That is the function of these courts.

The first and second respondents, having been threatened with criminal sanction, wisely, in my view, decided to take no further action until a court had decided whether one or the other was in the right from a legal perspective.

They have, as a result, been brought to court for an order for mandamus for the Sheriff and his Deputy to perform their duties in terms of the law.

I cannot fault the manner in which they handled their task. The same cannot, however, be said of the legal practitioners for the applicant and the fourth respondent.

The starting point would, in my view, be the award that the applicant obtained from the arbitrator which is the causa causans of the entire dispute.

The applicant was employed by the fourth respondent as a Director of the Agricultural unit at the school. On 6 March 2009 he was dismissed following a finding that he was guilty of wilful disobedience to a lawful order.

He filed an appeal to the Minister who referred the matter to an arbitrator for conciliation.

The arbitrator heard the parties on 12 May 2009, and, on 30 June, the arbitrator issued an award in favour of the applicant. The arbitrator found that there had been unfair labour practice against the applicant and gave the following award:

(i) That the employee be paid salary arrears from 1 March 2009 to 30 June 2009 and gratuity with immediate effect;

(ii) That the employee be paid three (3) months cash in lieu of notice, gratuity, and any outstanding vacation leave days with immediate effect;

(iii) That the employee be paid damages in lieu of reinstatement. Further, that, the parties negotiate the quantum of damages payable, if they fail to agree they should refer the matter back to arbitration.

The parties did not agree on the amounts to be paid, and, as a result, on 7 June 2010, the applicant referred the dispute to the arbitrator for an assessment of the monies due and owing as damages in lieu of reinstatement.

The arbitrator, on 7 June 2010, awarded the applicant US$60,000 as damages in lieu of reinstatement.

Armed with this award, the applicant then filed a chamber application with this court for the registration of the award.

In the draft order attached to the application, he sought registration of the awards granted to him on 16 July 2009 and 7 June 2010 respectively.

The learned judge before whom the application was placed, pointed out, correctly, in my view, that the first mentioned award did not sound in money.

To comply with this query, the applicant then submitted two annexures, one of which was a payslip and the other a document which purportedly set out all the sums as salary and allowances claimed from February 2009 to June 2009. These amounts totalled US$29,367 were accordingly claimed on the amended draft order filed by the applicant.

There was, however, no indication on the papers that these amounts had been awarded by the arbitrator.

On 21 June, this court gave an order in favour of the applicant in which the arbitral award of June 2010 was registered together with an amount of US$29,367 - which clearly was not part of the award by the arbitrator.

When the parties appeared before me, I raised a query with the applicant's counsel as to the entitlement by the applicant to have this aspect of the award registered with this court.

Counsel, who had not been instructed on the circumstances surrounding the registration of the award, was unable to confirm that it was based on an award by the arbitrator.

I indicated to the parties, that, in my view, the award had been registered in error and that it was my intention to invoke Rule 449 of the Rules of the High Court and rescind that part of the order.

Accordingly, the order of this court, dated 21 June 2010, relating to an award by Mpisaunga, dated 16 July 2009, for the sum of US$29,367 is hereby rescinded.

I now turn to the dispute between the parties.

The applicant seeks an order that the process of execution be proceeded with by the first and second respondents. He also seeks an order barring the fourth respondent from interfering with the first and second respondents in the execution of their duties.

In the final relief, the applicant also sought an order to the effect that Rule 34(1) of the Labour Court Rules 2006, S.I.59/06, S.I. 59 of 2006 is ultra vires the Labour Act [Chapter 28;01].

Subsequent to his having an order issued in his favour, the applicant caused, on 23 June 2010, a writ of execution to be issued by the Registrar of this Honourable Court.

It is common cause, that, on 28 June, the first respondent attended at the premises of the fourth respondent armed with the writ and attached two buses and a tractor. Removal was scheduled for 1 July 2010.

He did not do so due to a letter, dated 30 June 2010, from Messers Kantor & Immerman which advised the first respondent that a stay of execution had been granted in favour of the fourth respondent by the Labour Court, and that, therefore, the respondent ought not to proceed further with the process.

A copy of the order, which was attached to the letter, reveals that the order staying execution was granted in chambers by KACHAMBWA President on 30 June 2010.

The president had granted a stay on the execution of the judgment relating to the damages in lieu of reinstatement but had allowed execution on the part of the award which was not the subject matter of an appeal.

It transpired that the fourth respondent had not appealed against the award of 16 July 2009 but had appealed the award issued on 7 June 2010. The applicant had apparently not been served with the Notice of Appeal.

The applicant and his legal practitioners were not convinced that the Labour Court could order stay of execution on an order emanating from this court, and, accordingly, on 14 July, the latter addressed a letter to the first respondent urging him to proceed with execution.

The first respondent complied and served a fresh notice of removal on 16 July 2010. Removal was this time scheduled for 21 July 2010.

He was unsuccessful as he was met with resistance.

In the meantime, the fourth respondent's legal practitioners had addressed a letter to the first respondent, which they copied to the applicant's legal practitioners, on 19 July, in which they intimated that the writ of execution was no more legally enforceable and warning the first respondent that he risked being charged with a criminal offence if he persisted with execution.

A further letter on the issue was written to the applicant's legal practitioners, on 22 July 2010, in which it was stated, amongst other things, that, any instructions to the first respondent to proceed with execution would be unlawful because the writ had been suspended by the Labour Court.

In view of the turn of events, the second respondent advised the first respondent to suspend execution pending the determination of the application filed by the applicant, in the Labour Court, for rescission of the order for stay of execution.

The applicant sought an explanation from the second respondent who reiterated that his office would not proceed with the process of execution until the rescission would have been determined hence the application before me as the applicant is of the view, that, until such time as the order of this court has been set aside the writ is valid.

The execution of judgments of the High Court is provided for in Order 40 of the Rules.

Rule 324 thereof provides that a writ of execution, once issued, remains in force until such time as the judgment has been satisfied.

Rule 323 provides that one or more writs may be sued out by any person in whose favour a judgment has been pronounced if such judgement has not been satisfied, stayed, or suspended.

The contention of the first and second respondents is that the writ cannot be enforced because it has been suspended by the Labour Court.

The order by the Labour Court staying execution of the order of 21 June 2010 was effected in terms of Rule 34 of the Labour Court Rules which is to the following effect:

"Where a decision, order, or determination has been registered in terms of section 92B(3) of the Act, the Court or a President sitting in chambers may, upon application, order a stay of execution of the decision, order, or determination.”

The issue which then arises is whether this was a decision, order, or determination registered according to the provisions of section 92B of the Labour Act.

Section 92B(1) of the Labour Act provides that the Labour Court may fix the date from which any decision, order, or determination made by it may operate.

Subrule (2) requires the court or the president who made the decision to submit sufficient copies of the order or decision to the Registrar, who, in turn, will provide a copy to each of the parties affected by the order or decision.

Section 92B(3) of the Labour Act, in turn, permits the registration of the order or decision with the Magistrates Court or the High Court, depending on the jurisdictional limit of the lower court.

Clearly, an award from an arbitrator cannot be registered under section 92B of the Labour Act.

A closer scrutiny of the Labour Act actually reveals that the appropriate section for the registration of such awards is section 98(14) of the Labour Act, which is, to all intents and purposes, a mirror of section 92B(3) of the Labour Act except that there is reference to an arbitrator and an arbitral award as opposed to the Labour Court and a decision, order, or determination.

In my view, the Labour Court provided for the suspension of orders or decisions registered under section 92B(3) of the Labour Court only.

The judgments registered under section 98(14) of the Labour Act have been excluded.

Any suspension of any award granted under section 98 of the Labour Act would therefore be ultra vires the Rules themselves as they have not provided for such suspension....,.

I turn then to the substance of the application, as to whether or not I should issue an order in favour of the applicant directing the first and second respondents to abide by their statutory duties and remove the attached assets and sell them in execution of the judgment of this court.

The powers and duties of the Sheriff are provided for in section 20(1) of the High Court Act to the following effect:

"Subject to section nineteen and to rules of court, the Sheriff shall, by himself or his deputy or an assistant deputy, execute all sentences, decrees, judgments, writs, summonses, rules, orders, warrants, commands and other processes of the High Court, and shall make a return thereof to that court together with the manner of execution thereof."

That there is a statutory obligation falling upon the shoulders of the Sheriff and his lawful deputy, in this case the first and second respondents, is not in dispute. Both are officers of this court and are bound by the High Court Act.

The question to be determined here is whether or not the applicant has made out a case requiring this court to order that the first respondent execute his mandate in terms of the writ.

The applicant has addressed this court at length on the validity of the writ. I do not believe that is the issue before me. The writ is valid until such time as the judgment of this court has been set aside.

The judgment has not.

However, each of the parties has noted an appeal against the assessment of damages by the arbitrator in the sum of US$60,000.

It is trite that a litigant who is dissatisfied with a judgment or decision may appeal against that judgment or decision.

Appeals under the Labour Act are governed by that Act. Section 92D provides:

"A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner prescribed, appeal to the Labour Court."

The effect of noting an appeal under this section is described in section 92E of the Labour Act in the following terms:

"(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.

(2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires."

In terms of subsection (2), the Legislature has finally put to rest the confusion in the law as to whether or not an appeal under the Labour Act would suspend the operation of the decision or determination appealed against.

The arbitral award was however granted in terms of section 98(9) of the Labour Act.

An appeal against the decision of the arbitrator, on a question of law, lies to the Labour Court in accordance with the provisions of section 98(10) of the Labour Act.

Where section 92E of the Labour Act provides that the noting of an appeal does not suspend the decision or determination, there is no such provision in relation to an appeal against an award by an arbitrator.

In PTC v Mahachi 1997 (2) ZLR 71 (H) CHATIKOBO J stated…,.:

"I am concerned with proceedings conducted in the public law domain under the provisions of the Act. In this domain, the common law presumption against the operation of judgments which have been appealed against applies unless the Act provides to the contrary.

In this case, the Act is silent on the issue. But, does this silence mean that Parliament intended to alter the common law position?

In Phiri & Ors v Industrial Steel & Pipe (Pvt) Ltd SC242-95 (not reported) KORSAH JA said:

'There is a presumption, in the interpretation of statutes, that Parliament does not intend to change the common law, unless it expresses its intention with irresistible clearness, or, it follows, by necessary implication, from the language of the statute in question, that it intended to effect such alteration in the common law; for 'construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself is to sin against one of the most familiar rules of construction….,.': per LORD HALSBURY LC in Bank of England v Vagliani [1891] AC 107 at 120.

I am of the opinion, that, in the absence of a clear indication by the law giver to the contrary, the common law position that the execution of all judgments is suspended upon the noting of an appeal is not ousted by the silence of the statutory instrument in terms of which the respondent's appeal to the Tribunal was lodged upon the effect of such appeal against the order made by the Minister.'"

I will consider, and accept, as CHATIKOBO J did before me in PTC v Mahachi 1997 (2) ZLR 71 (H) that the proceedings against which the appeal was noted were conducted in the public domain law under the aegis of the Labour Act. As such, in the public domain law, the common law presumption against the operation of judgments which have been appealed against operates unless the Act has provided to the contrary viz section 92E(2) of the Labour Act.

I am fortified in this view by comments made by GREENLAND J in Mushaishi v Lifeline Syndicate & Anor 1990 (1) ZLR 284 (H)…, to the following effect:

"To my mind, it would be anomalous if an administrative decision of a quasi-judicial nature, as is the case here, were to be put on a different footing from court judgments and orders.

In the absence of anything provided to the contrary in the relevant Act, such decisions must be treated as suspended pending appeal."

The sum total of the comments from the eminent jurists that I have quoted from leaves me with no other conclusion than that the arbitral award, having been appealed against, is not capable of being executed against.

To hold otherwise would be to fly in the face of age old established common law principles, let alone logic.

For a litigant to note an appeal against judgment granted in his favour, and, thereafter, to seek to execute against the same judgment with which he has clearly expressed unhappiness, is, to say the least, an abuse of court process.

ln any event, the fourth respondent has noted an appeal against the award of damages by the arbitrator.

The Labour Court is a creature of statute and is regulated strictly within the four corners of the statute which created it.

The Act that created it has not seen fit to interfere with the common law position which provides that an appeal against a judgment suspends the same.

It stands suspended and the applicant has not convinced me otherwise.

In the premises, I find that the application has no merit and it should be dismissed with an appropriate order for costs. I therefore make an order as follows:

IT IS HEREBY ORDERED AS FOLLOWS:

1....,.

2. The application for an order of mandamus against the first and second respondents be and is hereby dismissed.

3. The applicant is ordered to pay the costs of this application.

HH65-15 : SYDNEY USHE vs DOROTHY VIOLET MADZONGA
Ruled By: UCHENA J and MWAYERA J

This court cannot determine an unspecified allegation,That is why Order 31 Rule 2(4)(a) and (b) of The Magistrate's Court (Civil Rules) 1980, requires an appellant to state the part of the judgment and findings appealed against. It provides as follows;“2(4) A notice of appeal or of cross-appeal shall state -(a) ...

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

This is an appeal and cross-appeal against parts of the judgment of the High Court dated 4 September 2014 granting a decree of divorce and ancillary relief for and against the appellant (the plaintiff in the court a quo and the appellant in this appeal) and the cross-appellant (the defendant ...

FACTUAL BACKGROUND

The facts of the case can be summarised as follows:

On 1 September 1990, the appellant and the first respondent were married in terms of the then Marriages Act [Chapter 37].

During the subsistence of the marriage, the parties were blessed with three children, namely, Murray John Coumbis, who was already an adult at the commencement of divorce proceedings, and the twins, Julian Ronald Coumbis and Anton Phillip Coumbis. Julian and Anton were minors when divorce proceedings were instituted.

They are now adults, but, Julian remains a perpetual minor on account of his mental incapacity.

On 5 August 2010, the appellant instituted divorce proceedings against the first respondent. As Julian and Anton were minors, the appellant claimed their custody and maintenance. She also claimed personal maintenance and a share of the assets of the parties.

The appellant also claimed €10,400 from the respondent which she had advanced as a loan to Stir Crazy (Pvt) Ltd, a family business. She contended that the money was part of her inheritance. She claimed to have loaned it to the first respondent through Stir Crazy (Pvt) Ltd. She claimed the money from him alleging that the aforementioned company was an alter ego of the first respondent.

The first respondent opposed the appellant's claims and made a claim in reconvention wherein he claimed the custody of the minor children and their maintenance. He contested the appellant's claim for personal maintenance and matrimonial property. He alleged that some of the properties claimed by the appellant did not form part of their matrimonial estate.

The matter proceeded to a joint pre-trial conference where the following issues were identified and referred to trial:

“(a) The custody of Julian and Anton;

(b) What amount of maintenance was to be paid to the plaintiff if custody is awarded to her;

(c) Whether the plaintiff could be awarded the right to reside in the matrimonial home until both children became self-supporting;

(d) Whether the defendant was obliged to pay personal maintenance to the plaintiff;

(e) Which properties constituted the matrimonial estate;

(f) What appropriate order the High Court was supposed to make for the sharing of property.”

PROCEEDINGS IN THE HIGH COURT

When the trial commenced, Julian and Anton were no longer minors. However, the parties agreed that Julian was to be treated as a perpetual minor due to his mental incapacity.

The parties claim for custody and maintenance, therefore, only related to Julian.

The parties adduced a lot of documentary evidence to support their respective claims.

During examination-in-chief, the appellant admitted that she had a broken relationship with Julian. She admitted that she had exchanged nasty emails with him. The appellant also admitted to smoking marijuana. The fact that she smokes marijuana was confirmed by Dr Chibanda who pointed out its adverse effect on her health and especially on her recovery from temporal lobe epilepsy.

After hearing the evidence, the judge a quo interviewed Julian in his chambers.

The court a quo found that Julian was closer to the first respondent and took into consideration the fact that the two had been staying together after the parties separation.

It also found, that, the appellant needed to start a new life independent from the first respondent but still needed financial assistance to cushion her from the effects of the divorce.

The court a quo found that the first respondent was dishonest and not credible in respect of evidence relating to the matrimonial estate.

The order granted by the court a quo, quoted verbatim, reads as follows:

“Accordingly, it is ordered as follows:

1. A decree of divorce be and is hereby granted.

2. Custody of the perpetual minor child, Julian Ronald Coumbis, born on 3 July 1994, be and is hereby awarded to the defendant.

3. The plaintiff be and is hereby granted reasonable access rights to the said perpetual minor child which shall be exercised as follows:

3.1 She shall have the right to stay with the said perpetual minor child on alternate weekends.

3.2 She shall have the perpetual minor child on any other special occasions, including, but not limited to, each alternate Easter holidays and Christmas holidays.

4. The defendant shall solely be responsible for the upkeep of the said perpetual minor child.

5. The defendant shall pay maintenance in respect of the plaintiff in the sum of US$2,000 per month, as per the order granted by the Magistrate's Court, for a period of six (6) months from the date of granting of this order inclusive of the month of September 2014.

5.1 Payments shall be made directly into the plaintiff's Bank Account whose details shall be provided forthwith to the defendant by the plaintiff.

6. The plaintiff is awarded as her sole and exclusive property all household furniture, contents and effects, inclusive of all her personal items and jewellery, at the matrimonial house, No.6 Northwood Rise, Mt Pleasant Harare, excluding the TV set, dinning suite, and lounge suite which are awarded to the defendant.

7. The defendant shall transfer into the plaintiff's name a motor vehicle, Nissan Navara Registration Number ABD 6847, presently being used by the plaintiff, at his sole cost, within thirty (30) days of the grant of this order.

8. The defendant is awarded, as his sole and exclusive property, immovable property known as No.6 Northwood Rise, Mt Pleasant, Harare currently registered in the names of the plaintiff and the defendant.

8.1 The defendant shall transfer, against payment by him of all transfer costs, the said property into his names and the plaintiff shall sign all relevant papers to effect such transfer within 30 days of being requested, failure of which the Sheriff shall sign all the documents.

8.2 The defendant shall be solely responsible for any encumberances, mortgages, or other obligations duly existing or registered by law over the said property.

9. The defendant shall transfer all shares of OPIUM INVESTMENTS (PVT) LTD, a property-owning company whose sole asset is an immovable property known as No.13 Bates Street, Milton Park, Harare to the plaintiff within thirty (30) days of the grant of this order at his cost.

9.1 The defendant shall be solely responsible for any encumberancies or obligations duly existing or duly registered by law over the said property.

9.2 The defendant shall sign all the relevant documents to effect such transfer failure of which the Sheriff is authorised to sign all such documents.

10. The plaintiff is awarded, as her sole and exclusive property, an immovable property known as No.6 Rosefriars, Avondale, Harare.

10.1 The plaintiff shall transfer, against payment by her of all transfer costs, the rights, title, and interest in the said property, No.6 Rosefriars, Avondale Harare.

10.2 The defendant, shall, within thirty (30) days of being requested to, sign all relevant documents to effect such transfer, failure of which the Sheriff is authorized to sign all such documents.

11. The plaintiff's claim for cash, in the sum of US$100,000, be and is hereby dismissed.

12. Absolution from the instance be and is hereby granted in respect of the distribution of the following assets:

(a) 94 Matumi Sands Lonehill (Pty) Ltd.

(b) 112 Matumi Sands, Lonehill (Pty) Ltd.

(c) 182 Shingara (Pty) Ltd.

(f) Theright Investments (Pvt) Ltd.

(g) Stir Crazy (Pvt) Ltd.

(h) Incavat Enterprises (Pvt) Ltd.

(i) Telehic Investments (Pvt) Ltd.

(j) Natsbury Trading (Pvt) Ltd.

(k) Plaintiff's claim of £10,400.

13. The defendant shall bear the costs of suit.”

Aggrieved by parts of the court a quo's decision, the appellant and the first respondent noted the present appeal and cross-appeal respectively....,.

The appeal involved an appeal and a cross-appeal, but, the cross appeal was withdrawn during the hearing of the appeal.

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain ...

FACTUAL CONSPECTUS

The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3,986=61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.

Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of section 93 of the Labour Act [Chapter 28:01] (“the Act”). The dispute was placed before the respondent for a hearing.

It was her case, that, no proper investigations were conducted into the allegations levelled against her, and, further, that she was not granted the right to be heard before she was summarily dismissed.

She thus claimed damages for unlawful dismissal totalling US$23,253=34.

Before the labour officer, the parties did not agree on Ms Khan's monthly salary, as the appellant alleged that it was US$750 while Ms Khan argued that it was US$1,500. The respondent ruled in favour of Ms Khan on this point, and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages in lieu of reinstatement amounting to a total of US$9,000.

Subsequently, the labour officer applied to the Labour Court in terms of section 93(5a) of the Labour Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings.

The appellant opposed the application, but, the court a quo, after hearing oral argument from the appellant, granted an order confirming the ruling.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the decision of the court a quo and has appealed against it to this Court.

It argues in the main, that, the court a quo erred in simply confirming the respondent's award to Ms Khan of US$9,000 as damages without fully addressing the principles of law to be applied thereto. It further argued, that, the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property, and, in addition, had failed to avail herself for the hearing which led to her dismissal.

The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing.

The court observed, that, the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.

Ms Khan, was not cited in the appeal before this Court.

Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.

SECTION 93(5a) OF THE LABOUR ACT – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS

Counsel for the appellant rightly conceded, that, the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court a quo and in this Court.

Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.

The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of section 93(5a) of the Labour Act.

The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer's draft ruling in terms of section 93(5b) of the Labour Act.

It is noted, that, prior to the Labour Amendment Act No.5 of 2015, labour disputes of right would go before a labour officer for conciliation, and, if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard.

Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party, on the other hand, had the right to appeal against the award to the Labour Court.

The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of section 93(5a) and (5b) of the Labour Act was meant to address this mischief.

Subsections 93(5a) and (5b) of the Labour Act provide as follows:

“(5a) A labour officer who makes a ruling and order in terms of ss(5)(c) (this paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights) shall as soon as practicable -

(a) Make an affidavit to that effect incorporating, referring to, or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) Lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down for hearing (the “return day” of the application) to do or pay what the labour officer ordered under ss(5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”…,.

My interpretation of the two provisions cited suggests the following procedural steps;

(a) The labour officer, after making a ruling in terms section 93(5)(c)(ii) of the Labour Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based.

(b) The labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).

(c) The labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.

(d) Should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.

(e) On the date of hearing (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment.

(f) Thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order (obtained in default of appearance by the respondent, or after a hearing by the Labour Court) for registration.

(g) Upon submission of the order to the relevant court for registration, it shall have the same effect, for purposes of enforcement, as any civil judgment of that court.

It is to be noted from the above, that, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in sections (5a) and (5b) of the Labour Act.

In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) of the Labour Act which specifically provides for a ruling, like the one in casu, in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute.

I am satisfied, that, the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer, which is made in favour of an employer and against an aggrieved employee.

It follows, that, the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.

It is noted further, that, the wording of section 93(5b) of the Labour Act, albeit not specifically stating so, excludes the employee concerned from the confirmation proceedings.

This is an employee who would have been an active party in, as well as the instigator of the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her.

In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.

It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests.

Even the nature of the hearing mentioned in section 93(5b) of the Labour Act is not clear (the hearing is certainly not an appeal against nor a review of the Labour Officer's ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer's ruling) one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.

The employee, on these grounds, can, in my view, properly apply to be joined to the confirmation proceedings in terms of Rule 33(2) of the Labour Court Rules, SI150/17.

The joinder of a party mero motu by the court is not expressly provided for in Rule 33 of the Labour Court Rules, however.

I am nevertheless satisfied, that, this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court, in a deserving case, to order mero motu the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings.

Such an order would ensure full compliance with the common law rule, audi alteren partem.

The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities:

CILLIERS AC, LOOTS C and NEL HC, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1, at page 215, explain non-joinder by stating as follows:

“A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings, or, if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such a person has waived the right to be joined…,; in fact, when such person is a necessary party in the sense that the court will not deal with the issues without a joinder being effected, and no question of discretion or convenience arises.”…,.

The meaning of direct and substantial interest is explained at page 217 to 218 as follows:

“A 'direct and substantial interest' has been held to be 'an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation'. It is 'a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only'. The possibility of such an interest is sufficient, and it is not necessary for the court to determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation but also in the outcome of it.”…,.

It hardly needs emphasis, that, albeit not applicable in casu, an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore, in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.

The employee, in any case, would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment.

The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order mero motu that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent.

That, the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates (see HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1 at pages 208 to 209);

“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder, the court should raise it mero motu to safeguard the interest of third parties and it should decline to hear the matter until such joinder has been effected, or until the court is satisfied that the third parties have consented to be bound by the judgment or have waived their right to be joined.”

When this is related to the circumstances of this case, it cannot, in my view, be contested that the joinder of the employee, Ms Khan, was necessary.

While it is noted, in casu, that, the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored, that, the court effectively heard evidence from one side of the dispute and not the other, before making its determination.

As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling. It then essentially weighed the respondent's submissions against what was contained in the affidavit of the labour officer (before the court a quo, the labour officer briefly repeated the facts of the dispute and the details of the award she had made), and made its determination.

The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the quantum of the award. Nor, however, could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking, that, the employee had been accorded the unfair advantage of having her case 'argued' for her by the labour officer.

There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings:

(i) Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, section 93(5b) of the Labour Act affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter.

It is evident from section 93(5b) of the Labour Act, that, before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is, in reality, not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect.

He cannot, therefore, be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation.

Defending the labour officer's ruling should properly be the province of the person directly affected by it, that is, the employee concerned.

In my view, the Labour Court's confirmation or non-confirmation of the ruling, after effectively hearing one side of the dispute, is, at best, an irregularity, and, at worst, a travesty of justice.

(ii) Secondly, the procedure presupposes, that, a ruling made by the labour officer in favour of an employee will meet that employee's satisfaction.

It shuts the door, for instance, on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that quantum, in confirmation proceedings before the Labour Court.

A joinder to the proceedings would accord the employee the opportunity to, as it were 'cross oppose' the confirmation proceedings in the desired respect.

(iii) Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court, for one reason or the other, the employee might wish to take up the matter on appeal. He would, however, be hamstrung by the fact, that, he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order on his or her behalf.

(iv) Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.

One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent.

This is what happened in casu.

All too often, this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal.

Equally, often, the respondent cited in the appeal, that is, the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument. Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer's appearance.

Ordinarily, where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party.

The point has already been made, that, the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee's knowledge.

The injustice of such an outcome needs no emphasis.

(v) Finally, the appearance of the labour officer, as the respondent, in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems.

In such cases, the question of the labour officer's competence to so appear has arisen.

In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis? It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.

Other aspects of the procedure suggested by subsections (5a) and (5b) of section 93 of the Labour Act merit some comment.

Section 93(5b) of the Labour Act makes it clear, that, the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court's confirmation of the labour officer's ruling.

Further, while section 93(5b) of the Labour Act clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution.

Without being cited as a party, there would be confusion as to whether the 'claimant' that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite locus standi, and, moreso because section 93(5b) does not mandate him to do so.

The danger of the Labour Court's order being rendered a brutum fulmen becomes real.

In conclusion, while one might argue, in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view, that, the absurdities could not have been consciously intended by the legislature.

The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court.

The legislature might well wish to consider addressing this, and the other concerns, set out in this judgment.

DISPOSITION

When all is said and done, and in view of the foregoing, it is my finding, that, there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can, therefore, not be allowed to stand.

In the result, the following order is made:

1. The appeal be and is hereby allowed.

2. The proceedings and judgment of the court a quo be and are hereby quashed.

3. The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.

4. Each party shall bear its own costs.

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Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Cross-Appeal

SC57-05 : FIRST BANKING CORPORATION LTD vs BALTHAZAR MARIMO Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE Ruled By: GOWORA J

HH65-15 : SYDNEY USHE vs DOROTHY VIOLET MADZONGA Ruled By: UCHENA J and MWAYERA J

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Law Portal
Zimbabwe

SC57-05 : FIRST BANKING CORPORATION LTD vs BALTHAZAR MARIMO
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

SC31-13 : LAWSIGN NYARUMBU vs SANDVIK MINING AND CONSTRUCTION ZIMBABWE (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and PATEL AJA

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

HH65-15 : SYDNEY USHE vs DOROTHY VIOLET MADZONGA
Ruled By: UCHENA J and MWAYERA J

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA