In
addition the respondent asked the applicant to handover the company
vehicle by the 31st
December 2013 which was his last working day. The respondent did not
pay the applicant as promised. The applicant did not handover the
company motor vehicle as directed.
The
applicant issued summons claiming the sum of US$32,542.07 from the
respondent. The respondent entered appearance to defend. The
applicant applied for summary judgment.
The
respondent opposed the applicant's application and counter applied
for an order that the applicant handover the company vehicle an Isuzu
KB Registration number ABD 4174 to the respondent.
At
the hearing of the applicant's application for summary judgment and
the respondent's counter application, the respondent in the
application for summary judgment raised a point in
limine
challenging the jurisdiction of this court on the basis of s89(6) as
read with ss (1) of the Labour Act (Cap
28.01),
which provides as follows;
“(1)
The Labour Court shall exercise the following functions —
(a)
hearing and determining applications and appeals in terms of this Act
or any other enactment; and
(b)
hearing and determining matters referred to it by the Minister in
terms of this Act; and
(c)
referring a dispute to a labour officer, designated agent or a person
appointed by the Labour Court to conciliate the dispute if the Labour
Court considers it expedient to do so;
(d)
appointing an arbitrator from the panel of arbitrators referred to in
subsection (6) of section ninety-eight
to
hear and determine an application;
(d1)
exercise the same powers of review as would be exercisable by the
High Court in respect of labour matters;
(e)
doing such other things as may be assigned to it in terms of this Act
or any other enactment.
(6)
No court, other than the Labour Court, shall have jurisdiction in the
first instance to hear and determine any application, appeal or
matter referred to in subsection (1).”
The
applicant submitted that this court has jurisdiction because there is
no dispute the Labour Court can hear and determine as the respondent
admits and acknowledged its indebtedness to the applicant.
Commending
on respondent's counter application Mr Mandevere
for the applicant said the applicant is holding the respondent's
motor vehicle as a lien for the acknowledged debt.
He
is agreeable to this court ordering the respondent to pay the sum
owed and his client being ordered to handover the motor vehicle to
the respondent. It is therefore clear that both parties have no
defence to the other party's claim against them.
There
is therefore no dispute to be determined by the Labour Court.
The
Labour Court's exclusive jurisdiction does not apply where a party
has admitted its indebtedness arising from a labour relationship
which amicably ended with the rights of both parties clearly spelt
out and admitted by the other.
Section
89(6) of the Labour Act applies where the Labour Court has “to hear
and determine any application, appeal or matter referred to in
subsection 1”.
In
this case both parties admit their liability to the other leaving no
dispute to be determined by the Labour Court.
Where
a party acknowledges his indebtedness to the other this court has
jurisdiction to determine whether or not to grant summary judgment.
In
the case of Madinda
Ndhlovu v Highlanders Football Club
HB95/11 CHEDA J dealing with a similar situation said;
“It
is my respectful view that while it was the intention of the
legislature to oust the jurisdiction of the courts from adjudicating
on matters involving labour disputes, an acknowledgment of debt even
if it arises from a contract of labour is not what the legislature
intended to mean. An acknowledgment of debt is nothing but a liquid
document which is covered by the rules of this court, for which an
application, for summary judgment can be applied for”.
The
respondent's point in
limine
is
therefore be dismissed.
The
applicant's application for summary judgment should be granted as
the amount claimed is acknowledged in the letter in which the
respondent accepted the applicant's resignation. The debt is
further admitted in the opposing affidavit of Nozipho Guzha on p14 of
the record, where in paragraphs 12, 13, and 14 she clearly admits
that the respondent owes the applicant the sum of US$32,542.07, but
has delayed the promised payments due to financial problems the
respondent is facing.
The
counter application should also be granted because the applicant
admits that the motor vehicle belongs to the respondent, but was
holding it as a lien.
On
the granting of the court order the need for a lien falls away as the
applicant can execute the court order to be granted.
Mr
Mandevere
for the applicant submitted that his client is not opposed to the
order sought in the respondent's counter claim being granted.
In
the result the applicant's application for summary judgment and the
respondent's counter application for the handing over of its motor
vehicle, are granted in terms of their respective draft orders as
amended.
Kadzere,
Hungwe & Mandevere,
applicant's legal practitioners
Tamuka
Moyo Attorneys,
respondent's legal practitioners
