This is an appeal against the whole judgment of the Labour Court of Zimbabwe (the court a quo) sitting at Harare, dated 27 July 2022. After hearing submissions from the appellant and counsel for the respondent, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.
These are the reasons.
FACTS
The appellant was employed by the respondent as a Management Accountant. In 2001, his employment was terminated after a restructuring exercise. The appellant challenged the termination. The challenge resulted in a judgment handed down by MAKAMURE J on 13 April 2004, under LC/H/35/2004, who ruled, that, the appellant had been wrongfully dismissed from employment and ordered that he be paid damages as compensation for the wrongful dismissal.
In 2009, the appellant filed an application for quantification of damages in the Labour Court. In a judgment handed down on 27 May 2009, MHURI J quantified the damages payable in the total amount of Zimbabwean dollars $26,076,252.
In 2020, the appellant approached the High Court seeking registration of the judgment by MHURI J. DUBE J…, struck the matter off the roll. She found that the matter was improperly before the court as the award was denominated in Zimbabwean dollars which was no longer a usable currency during the period in question.
Following the striking off of the matter from the roll by the High Court, the appellant approached the Labour Court, again, under case number LC/H/APP/43/20 seeking an order for the evaluation of his salaries and benefits owed to him by the respondent. In that application, the appellant sought a variation of his damages which had been quantified in 2009 in Zimbabwean dollars to be varied to reflect a quantum of 'Zimbabwean dollars as they are currently valued'.
MANYANGADZE J, in dealing with the application, struck the matter off the roll on 3 July 2020, for the reason, that, it was improperly before the court as the appellant sought relief which had already been rendered by the court.
In September 2021, the appellant sought to contest the judgment by MANYANGADZE J, by way of appeal. He sought condonation for late filing of an application for leave to appeal as he was out of time. The application was made under case number LC/H/462/21. The application was struck off the roll by CHIVIZHE J for failure to meet the requirements of an application for condonation.
PROCEEDINGS IN THE COURT A QUO
The appellant then proceeded to make an application, in terms of paragraph 5 of Practice Direction 3 of 2013 (Practice Direction), under case number LC/H/206/22, for reinstatement of LC/H/APP/43/20 which had been struck off the roll by MANYANGADZE J on 3 July 2023.
The application for reinstatement was opposed by the respondent who averred, that, in terms of Rule 36 of the Labour Court Rules, the appellant had thirty days within which to apply for the reinstatement of LC/H/APP/43/20. In this regard, the respondent argued, that, the appellant was out of time to seek the reinstatement he sought.
The respondent also opposed the application on the basis, that, the application before MANYANGADZE J had been struck off the roll because it had been made on the basis of a subject matter which had already been disposed of by the same court. The respondent thus argued, that, reinstating the application would not result in any tangible result.
On 27 July 2022, CHIVIZHE J dealt with the application for reinstatement and found, that, the Practice Direction was introduced with a view to ensuring the uniform use of legal terms and the application of those terms in the Superior Courts.
The court noted, that, the Practice Direction was not created to replace court rules, and, as such paragraph 5 of the Practice Direction had to be read together with Rule 36 of the Labour Court Rules, 2017.
In this regard, the court found, that, as the appellant's matter had been struck off the roll because of a jurisdictional basis, and not on the basis of failure to comply with rules, the court was functus officio. The matter could not therefore be reinstated in terms of paragraph 5 of the Practice Direction.
The court further found, that, the appellant's recourse was in Rule 36 of the Labour Court Rules. The court, however, noted, that, the appellant could only resort to that Rule within 30 days of becoming aware of the abandonment of his matter, and that, in the circumstances of the case, the appellant had brought his matter two years after the last order was issued.
The application was thus struck off the roll.
THE APPEAL
Dissatisfied by the decision of the court a quo, the appellant noted the present appeal on the following grounds of appeal:
GROUNDS OF APPEAL
“(i) The learned judge erred at law in deciding the matter on the basis of procedural technicalities when the parties had revealed to the court a consensual position for resolution of matters on the basis of merits.
(ii) Applying the requirements of Rule 36 of the Labour Court Rules 2017 in a matter that is under the regulation of, and was brought to court in terms of paragraph 5 of the Superior Courts Practice Direction 3 of 2013.”
The appellant sought the following relief, that;
“1. The appeal be allowed with costs.
2. The Labour Court order LC/ORD/499/2022 be set aside and substituted with the following:
(i) The application in case number LC/H/APP/43/20, for valuation, on the basis of the prevailing currency, of salaries, benefits and severance pay owed to Applicant by Respondent, be and is hereby, reinstated to the roll.
(ii) The Registrar be and is hereby ordered to set the matter down for hearing at the earliest convenience.
(iii) Respondent to pay cost of suit.”
PROCEEDINGS BEFORE THIS COURT
The appellant argued, that, the court a quo erred in refusing to grant the application for reinstatement of case LC/H/APP/43/20 which was his only remedy in view of the fact that it was struck off the roll. He further argued, that, the court erred as his remedies for reinstatement were provided for in the proviso to paragraph 5 of the Practice Direction.
The Court explained to the appellant, that, the application which he sought to reinstate had been struck off the roll because the court did not have jurisdiction to deal with the matter on the basis that it was functus officio. The issue had already been dealt with by MHURI J.
The court also directed the appellant's attention to the fact, that, paragraph 5 of the Practice Direction could not apply to the matter in casu. It could only be resorted to in instances where a matter is struck off the roll for infractions of the Rules.
The appellant maintained, that, the court a quo erred in striking his matter from the roll and that he had a remedy to reinstate his matter under the proviso to paragraph 5 of the Practice Direction.
Per contra, counsel for the respondent argued, that, the reinstatement which was sought by the appellant could not be attained as he could not reinstate a matter where the Labour Court had already pronounced itself on the issue at hand.
Counsel for the respondent further argued, that, the court a quo did not err in finding that the Practice Direction could not be used to reinstate the matter.
With that, counsel prayed that the appeal be dismissed with costs.
ISSUE FOR DETERMINATION
Whether or not the court a quo erred in striking off the roll the appellant's application.
APPLICATION OF THE LAW TO THE FACTS
Whether or not the court a quo erred in striking off the appellant's application
The court a quo struck off the appellant's application for reinstatement on the basis, that, the applicant wrongly applied the Practice Direction in making the application.
The court a quo opined, that, the appellant's matter, having been struck off the roll in 2020, had been deemed abandoned and the appellant could only, therefore, in the circumstances, have recourse to Rule 36 of the Labour Court Rules 2017.
It was also the court a quo's position, that, Rule 36 required the application to have been made within 30 days of the party becoming aware of the abandonment. The application was brought two (2) years after the last order, and it was, on that basis, that, the court struck the application off the roll.
The appellant's position is simply, that, because MANYANGADZE J, for whatever reason, ultimately struck his matter off the roll, his remedies lie in the Practice Direction.
In his application before the court a quo, and his initial submissions, he relied on the entire paragraph 5 of the Practice Direction. After the intervention of the court, regarding the applicability of that paragraph, he then sought to rely, only, on the proviso to paragraph 5.
The Practice Direction 3 of 2013, which provides for the meaning of the phrase 'struck off the roll' provides as follows, in the relevant parts:
“3. The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.
4. In accordance with the decision in Matanhire vs BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and S vs Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court.
5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.
Provided that a Judge may, on application, and for good cause shown, reinstate the matter on such terms as he deems fit.”…,.
It was the appellant's argument, that, the proviso allows a party to seek reinstatement, and that, a Judge can grant the application on 'good cause shown'. He contended, that, the general provision, that is paragraph 5, which makes reference to failure to abide by the rules, and Rule 36 of the Labour Court Rules 2017, relied on by the court a quo, did not apply.
In the case R v Dibdin 1910 Probate…, LORD FLETCHER MOULTON…, in the Court of Appeal, said:
“The fallacy of the proposed method of interpretation (i.e. to treat a proviso as an independent enacting clause) is not far to seek. It sins against the fundamental rule of construction, that, a proviso must be considered in relation to the principal matter to which it stands as a proviso.
It treats it as if it were an independent enacting clause instead of being dependent on the main enactment.
The Courts, as for instance in such cases as Ex parte Partington 6 Q.B. 649; In re Brockelbank 23 Q.B. 461; and Hill v East and West India Dock Co. 9 App. Cas. 448, have frequently pointed out this fallacy, and have refused to be led astray by arguments such as those which have been addressed to us, which depend solely on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they appear in a proviso.”
A proviso cannot be treated as an independent clause but has to be considered in relation to the principal matter to which it stands as a proviso.
The argument by the appellant, that, he was only relying on the proviso to paragraph 5 'sins against the fundamental rule of construction, that, a proviso must be considered in relation to the principal matter to which it stands as a proviso.'
Reliance by the appellant on the proviso was totally misplaced.
