This is an opposed application wherein the applicant seeks the following relief:“1. Respondent shall, within two hours of the service of this order on him, restore the following property to the applicant;(a) Mitsubishi Pajero 3.0 Registration Number AAV-5956;(b) Laptop HP Compaq 6720;(c) Cellphone Samsung D880;2. The cost of this application ...
This is an opposed application wherein the applicant seeks the following relief:
“1. Respondent shall, within two hours of the service of this order on him, restore the following property to the applicant;
(a) Mitsubishi Pajero 3.0 Registration Number AAV-5956;
(b) Laptop HP Compaq 6720;
(c) Cellphone Samsung D880;
2. The cost of this application shall be borne by the respondent.”
The relief sought arises from the fact, that, upon termination of employment, the respondent retained the applicant's property which is being claimed in the relief quoted above.
It is common cause, that, prior to 18 September 2009, the respondent was employed by the applicant as its Health Services Manager. The respondent's employment was terminated on grounds of ill-health through an internal memorandum dated 18 September 2009. The memorandum reads as follows:
“I acknowledge receipt of your memo dated 15 September 2009 including medical reports from your doctor (Mr Macheka) and some clinical psychologist (Mr Broomberg).
The letter from Mr Macheka is very clear in stating that your ill-health is such that you will not be able to resume your job after the legally stipulated one hundred and eighty days. Mr Macheka states clearly, in reference to yourself, that:
'he needs more time off work for a full resolution of his injuries though at this point one cannot state a definite time-frame and will depend on future reviews and assessment in 2 months time.'
You have now exceeded your maximum sick leave in one year period of service (that is, from 11 March 2009 to 14 September 2009). It leaves the company with very little option, therefore, than to terminate your contract of employment forthwith (that is, with effect from 18 September 2009) in accordance with section 14(4) of the Labour Act [Cap 28:01].
Please note that due to your failure to obtain your doctor's certificate by 17 July 2009, as had been instructed and as re-iterated in previous communication to you, you have forfeited your chance of being terminated through the company's medical boarding process.
Your are thus instructed to surrender all company assets in your possession to the General Manager, Shurugwi not later than close of day on Monday 21 September 2009. For avoidance of doubt, the said assets include the company PAV, laptop, cellphone and line. Failure to surrender the said company assets will result in the company instituting any legal process necessary to recover any such assets.
Your terminal benefits, which include any outstanding salary and leave days up to 18/09/09 will be deposited into your account provided an exit form has been duly completed clearing you of any outstanding liabilities to the company. Your pension benefits from both the Zimasco Pension Fund and NSSA will be processed in the normal manner.”
Paragraph 6 of the above memorandum refers to the property that the applicant wants the respondent to return to it.
The respondent admits that the property belongs to the applicant but refuses to release the property on the ground of unfair dismissal.
In his opposing affidavit, the respondent states as follows:
“1. I wish to raise a point in-limine. It is common cause, that, on 9 October 2009, I instituted proceedings in the Labour Court challenging applicant's decision to terminate my employment contract summarily, see copy of proof of service and copy of the application of review and appeal attached hereto marked annexures (A), (B), and (C).
2. It is common cause that those proceedings are still pending and have not been disposed of.
3. There is, accordingly, a litigation pending between the parties on the same cause of action and in respect of the same subject matter in the Labour Court and this honourable court should decline to exercise its jurisdiction as this is purely a labour matter which should be dealt with and has been properly placed before the Labour Court.”
The respondent further declares:
“I will state that I am in possession of the items pending the settlement of the matter as stated in above Ad Para 3.”
The respondent therefore urged the court to dismiss the application.
In his submissions, counsel for the applicant stated, that, the applicant had satisfied the requirements for an action for vindication. This, he said, was largely so because the respondent himself admitted that the assets he was in possession of belonged to the applicant.
It was submitted, that, notwithstanding the provision of section 89(6) of the Labour Act [Chapter 28:08] (“the Act”), there was no pending matter in the Labour Court relating to an employment dispute between the applicant and the respondent. That being the case, it was argued, the respondent's plea of lis alibi pendens was misplaced.
The undisputed fact was that the applicant's application was filed on 8 October 2009 while the respondent's review application/appeal in the Labour Court was filed on 9 October 2009.
It was therefore the applicant's contention, that, for the special plea to apply, there must have been an appeal/application already pending in the Labour Court.
It was further stated, that, even if such an appeal/application were pending, the court had a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens.
In the exercise of that discretion, the court would have regard to the equities and the balance of convenience in the matter.
In casu, the applicant's argument was that, with the respondent's contract of employment having terminated on 18 September 2009, it wanted its assets restored for the advancement of its business activities. The respondent had no right to hold onto the assets.
It was further submitted, that, the subsequent action placed before the Labour Court by the respondent was based on an allegation of an unfair labour practice on the part of the applicant.
However, in casu, the applicant was seeking relief based on actio rei vindication.
The matters before the courts, according to the applicant, were therefore not based on the same subject matter.
That being the case, and based on its 'full original civil jurisdiction over all persons and over all matters within Zimbabwe' it was argued, this court had jurisdiction to entertain the application unless that jurisdiction is clearly ousted in terms of legislation.
The Labour Court, it was argued, as a special court, only dealt with matters provided for in the Labour Act.
There was no provision for an application for vindication in the Labour Act. This court therefore had the jurisdiction to deal with such an application, it was submitted.
In his supplementary Heads of Argument…, the respondent argued as follows:
“1.1. The applicant, through this application, seeks the restoration of certain property that is in the respondent's possession consequent upon the employment relationship that subsists between the parties.
1.2. It is common cause that there is an ongoing labour dispute between the parties herein, in which the respondent has made an application, to the Labour Court, for a determination of his dismissal as having been unfair.
1.3. It is also common cause that the application made by the respondent, in the Labour Court, falls within the ambit of the provisions of section 89(1) of the Labour Act, more particularly section 89(1)(a).
1.4. It also follows, therefore, that the provisions of section 89(6), quoted above, apply to this matter. While the application made herein is one for the restoration of the assets in the respondent's possession as a consequence of his employment, that issue cannot be related to in isolation from the main application made by the respondent in the Labour Court, which application has the potential of disposing of the whole issue once and for all.
1.5….,.”
Relying on Zimtrade v Malord Makaya HH52-05, the respondent submitted, that, the restoration of the applicant's property could not be separated from the determination of the labour dispute.
The matter, it was argued, fell within the provisions of section 89 of the Labour Act which gives the Labour Court powers to hear and determine issues in labour disputes in the first instance.
In support of his case, the respondent quoted from Zimtrade v Malord Makaya HH52-05 where MAKARAU J…, said:
“Notwithstanding the arguments advanced by Mr Dondo, I am of the opinion, that, matters relating to suspension from employment, with or without salary, and matters relating to dismissals, are specifically within the purview of the Labour Court as these are matters that are provided for in the Act and the regulations made thereunder. There is adequate provision under the Act for setting up machinery to resolve such disputes.
Thus, following my reasoning in the SIBANDA matter, the jurisdiction of this court is specifically ousted in respect of matters of dismissals and suspensions as these are specifically provided for the Act.”….,.
The respondent went further to state, that, the same principles alluded to in Zimtrade v Malord Makaya HH52-05 had been given the same force in T.O. Nyandoro v Cimas Medical Aid Society HC6652/08 where MAKARAU JP…, again said:
“I have had occasion to comment on the jurisdiction of this and the Labour Court in MARTIN SIBANDA & ANOR v BENSON CHINEMHUTE & ANOR HH131/04. In that matter, I came to the conclusion that section 89(6) of the Act takes away the jurisdiction of this and other courts in the first instance in all matters where the Labour Court has been specifically granted jurisdiction. The meaning that I gave to the section in that judgment was that whatever the Labour Court was specifically empowered to do, it would do exclusively. I remain of the same opinion.”…,.
I now shall deal, first, with the issue of lis alibi pendens (the special plea).
Section 124 of the Labour Act provides as follows:
“(1) Where any proceedings in respect of any matter have been instituted, completed or determined in terms of this Act, no person who is aware thereof shall institute or cause to be instituted, or shall continue any other proceedings, in respect of the same or any related matter, without first advising the authority, court or tribunal which is responsible for or concerned with the second-mentioned proceedings of the fact of the earlier proceedings.
(2)….,.”
The above provision of the law does not apply to the applicant because the proceedings were not in terms of the Labour Act (i.e. action rei vindication).
This is so also mainly because at the time of instituting these proceedings the applicant was not aware of any proceedings anywhere “in respect of the same or any related matter.”
Even if the applicant might have been aware, the above law did not place an obligation on him, as indicated in the relevant section, because this action was not brought in terms of the Labour Act.
In the main, however, what comes out clearly is that there was no pending action/application in the Labour Court relating to the same matter at the time this application was filed on 8 October 2009.
The alleged pending matter was only filed on 9 October 2009, presumably as a reaction to this application.
I fully agree with the applicant, that, for the special plea to succeed the respondent must prove the following:
“4.1. That the action is already pending between the parties;
4.2 That the plaintiff has brought another action against the same defendant.
4.3 The action is based on the same cause of action and in respect of the same subject matter.”
The subject matter in the subsequent action/application in the Labour Court is unfair dismissal or labour practice whereas in casu the application is for vindication.
There was therefore no pending matter as submitted and therefore the special plea cannot stand.
