GOWORA JA: On 1 November 2013, the Labour Court
granted a chamber application in favour of the respondents for the amendment of
their notice of appeal. This is an appeal against the order granting the
application.
THE FACTS
The
appellant is a company duly registered in terms of the laws of Zimbabwe. The respondents were formerly employed by an
entity known as PG Merchandising Limited trading as PG Timbers (hereinafter
referred to as PG Timbers). It is not in dispute that the appellant was the
holding company for a number of entities of which PG Timbers was one. PG
Timbers has ceased to exist. The exact
circumstances thereof are not before the court.
The
respondents lost their employment with PG Timbers some time before its demise. It was alleged against the respondents that
they had taken part in an illegal collective job action on 30 November 2011. The action was aimed at coercing their
erstwhile employer into increasing their wages in line with the recommendations
of the National Employment Council. The
respondents alleged that after the collective job action they were denied entry
into the premises. They applied for a
show cause order under the Labour Act [Chapter
28:01], the Act, which was dismissed by the relevant Minister.
In
the meantime, the employer charged the respondents with contravening s 7.1.4(viii)
of the PG Industries (Zimbabwe) Code of Conduct, (“the Code”) “for participating
in an unconstitutional industrial action”. They were served with notices to attend disciplinary
hearings before the disciplinary committee. The respondents deliberately boycotted the
process. They were convicted in absentia. They were all dismissed from employment upon
conviction.
Section
10.1 of the Code requires that an aggrieved employee seek leave to appeal
internally within six working days of the date of the decision sought to be
appealed against. The respondents only
sought leave after a period of three months. Subsequent to the noting of the application
for leave, they made an application for condonation for the late noting of the
application for such leave. The appeals committee
before whom the condonation was sought was chaired by Caroline Mapupu, the
appellant's Group Human Resources Executive. On 22 May 2012, the committee handed down its
decision dismissing the application for condonation.
The
respondents were aggrieved by the dismissal of the application and noted an
appeal with the Labour Court on 17 June 2012. The form LC 3 which constituted the notice of
appeal cited the appellant as the respondent. Attached to the form LC 3 were grounds of
appeal wherein the respondent was cited as PG Timbers.
The
appellant raised a preliminary point in its notice of response. It pointed to the citation of two different
respondents on the form LC 3 and the grounds of appeal. The manner of citation
created confusion as to which respondent was being brought to the Labour Court
on appeal. Consequently the identity of the respondent as employer was critical
in the determination of the appeal. The
respondents were put on notice to properly identify the correct respondent to
the appeal.
No
action was taken by the respondents and on the date of hearing the appellant
raised the preliminary point with the court. The respondents argued that the citation of
different parties on the documents was a mere technicality which could not stop
the court from delving into the merits of the dispute. On 2 August 2013 the court a quo handed down its judgment. It held that the respondents had made an
error in citing the two entities in the manner they did. The court held that the error could be
corrected and ordered the respondents to make an appropriate application for
amendment of the notice of appeal and grounds thereof.
On
13 September 2013, the respondents filed a chamber application for amendment of
the notice and grounds of appeal. In
both documents the appellant was cited as the respondent. The record indicates that the application was
served on the appellant's legal practitioners. The application was opposed by the appellant. On 11 November 2013 the application was
granted in chambers. There is no indication that the parties appeared before
the learned judge before the order was granted. No reasons for the order were made available
to the parties.
THE APPEAL
The appellant was aggrieved and, with the
leave of the court a quo, it has noted
an appeal against the order of 11 November 2013. The ground upon which the appeal is premised
is captured as follows:
“The court a quo erred by granting the amendment by
the respondents, which amendment has the effect of making the appellant a party
to the employment dispute in question yet the appellant has never at all
material times been the respondents' employer. Accordingly, the appellant has
been wrongly cited as a party to the dispute.”
Mr
Mpofu contended before us that the absence of reasons for the judgment
constitute an irregularity such as to justify interference with the judgment of
the court a quo by this court. I agree. In Muchapondwa
v Madake & Ors 2006(1) ZLR 196(H), KARWI J said:
“The issue to be
decided is whether or not an appeal is invalid if it is noted without the
appellant having requested in writing and being furnished with the reasons for
a judgment or order. I do not agree with the submission by Mr Magwaliba that such an appeal is a nullity. I equally do not
agree with Mr Magwaliba's assertion
that a judicial officer is not under obligation to provide reasons for his
judgment or order. It is settled that:
'When
a matter is opposed and the issues have been
argued it is unacceptable for a court to make an order without giving
any reasons for it, since the litigants are entitled to be informed of the
reasons for the decision.'”
See Herbstein and Van
Winsen Civil Practice of the Supreme Court of South Africa.
The
rationale for the above was set out in Botes
& Another v Nedbank Ltd 1983 (30 SA 27(A) at 27H:
“The
first is that the judge who heard the exception and application to strike out
made orders dismissing the exception and allowing, in part, the motion to strike
out without giving any reasons. In my view, this represents an unacceptable
procedure. In a case such as this, where the matter is opposed and the issues
have been argued, the litigants are entitled to be informed of the reasons for
the judge's decision. Moreover, a reasoned judgment may well discourage an
appeal by the loser. The failure to state reasons may have the opposite effect.
In addition, should the matter be taken on appeal, as has happened in this
case, the court of appeal has a similar interest in knowing why the judge who
heard the matter made the order which he did.”
A court is obliged to give reasons for its
judgment to inform the parties on its reasons for the decision. A failure to give reasons is an irregularity
which has the effect of vitiating the proceedings. The Labour Court considered an application for
leave to appeal against that judgment to this court. Notwithstanding its knowledge of the intent of
the appellant to note the said appeal, the Labour Court has to date not
provided reasons for its order. Mr Mpofu submitted that in light of the
irregularity, this court should exercise its powers of review in terms of s 25
of the Supreme Court Act [Chapter 7:13].
Section 25 reads:
“25 Review powers
(1)
Subject to this section, the Supreme Court
and every judge of the Supreme Court shall have the same power, jurisdiction
and authority as are vested in the High Court and judges of the High Court,
respectively, to review the proceedings and decisions of inferior courts of
justice, tribunals and administrative authorities.
(2) The power, jurisdiction and authority
conferred by subsection (1) may be exercised whenever it comes to the notice of
the Supreme Court or a judge of the Supreme Court that an irregularity has
occurred in any proceedings or in the making of any decision notwithstanding
that such proceedings are, or such decision is, not the subject of an appeal or
application to the Supreme Court.
(3) Nothing in this section shall be construed as
conferring upon any person any right to institute any review in the first
instance before the Supreme Court or a judge of the Supreme Court, and
provision may be made in rules of court, and a judge of the Supreme Court may
give directions, specifying that any class of review or any particular review
shall be instituted before or shall be referred or remitted to the High Court
for determination.
Due
to the irregularity, the appeal cannot be decided on its merits. The absence of reasons makes the task of the
court even more difficult as the reasons for the decision remained locked in
the mind of the judicial officer. See S v
Makawa 1991(1) ZLR 142(S), at 146D-E.
In
the exercise of its review powers this court finds that it is in the interests
of justice that the judgment be set aside.
In terms of s 25(2) this court is imbued
with powers to set aside proceedings that are irregular even if those
proceedings are not the subject of an appeal or application before the court. I am fortified in this view by the remarks of
ZIYAMBI JA in The Chairman Zimbabwe
Electoral Commission & 2 Ors v Roy Bennet & Anor SC 48/05, as
follows:
“Section 25(2)
confers additional jurisdiction which may be exercised when it comes to the
notice of the Supreme Court or a judge of that court that an irregularity has
occurred in proceedings not before it on appeal or application. Thus s 25(2)
deals with irregularities in respect of which no appeal or application is
before the Supreme Court and the review is undertaken at the instance of the
Supreme Court and not of any litigant.”
In Zimasco
v Marikano SC 6/14, GARWE JA made remarks that are apposite and pertinent
to this principle at p 8 of the cyclostyled judgment to the following effect:
“In other words
the Supreme Court has the power of review over matters coming before it for
adjudication by way of appeal or whenever it comes to the notice of the court
that an irregularity has occurred in any proceedings or in the making of a
decision and it is felt that such an irregularity should not be allowed to
stand.”
I turn now to the
substance of the appeal itself.
THE ISSUES RAISED AND THE
DISPOSITION THEREOF
The sole ground of appeal complains that
the granting of the amendment reflecting the appellant as the respondent to the
dispute had the effect of turning the appellant, instead of PG Timbers, into
the respondent's employer. In view of
the finding of irregularity in the proceedings it is not intended to go into
the merits of that submission. What is
however of import is how the application came about.
In
its judgment of 2 August 2013, the court a
quo ordered that an application be made to rectify what the court termed
was an irregularity in the manner in which the two entities had been
cited. The said irregularity being
referred to by the court arose as a result of a point in limine raised by the appellant on its improper citation on one of
the documents constituting the notice of appeal. The learned judge did not determine the point
in limine, choosing instead to order
the respondents to amend their notice of appeal.
Two
issues arise immediately. The first is
that the court failed to deal with and determine an issue that had been raised
before it. The point in limine was to the effect that due to the
irregularity in the citation of the respondent to the appeal, there was in fact
no respondent before the court. The
preliminary point raised was such that the court could not dispose of any issue
in relation to the matter without making a finding on the point. The court could not simply wish it away as a
non-issue. It had to make a
determination. In my view, the failure
to deal with an issue raised is an irregularity that can serve to vitiate the
proceedings.
The
position is settled that where there is a dispute on a question, be it on a
question of fact or point of law, there must be a judicial decision on the
issue in dispute. The failure to resolve
the dispute vitiates the order given at the end of the proceedings. Although the learned judge may have considered
the question as to whether or not there was an irregularity in the citation of
the employer, there was no determination on that issue. In the circumstances, this amounts to an
omission to consider and give reasons, which is a gross irregularity.
The
second issue is that the court fashioned a remedy on behalf of one of the
parties and ordered that party to take a procedural step which had neither been
sought nor prayed for. Nor had the court been addressed by any of the parties
on the order it ultimately issued.
The
court a quo made a finding that the
appellant had proceeded to address the merits of the appeal before it despite
denying a relationship with the respondents. The court concluded that the citation of the
appellant and PG Timbers in this case was a mere technicality. It opined that it was an error that could be
corrected by an application for amendment of the papers.
Mr Mpofu argued that the corporate veil could
not have been uplifted at this stage of the proceedings. I agree. The effect of the order of 2 August
2013 is to uplift the corporate veil and turn the appellant into the employer
of the respondents. The Labour Court is
a creature of statute and can only do that which it is empowered to do by the
Act. It has no jurisdiction to uplift
the corporate veil. Its order for the amendment of the employer in casu to reflect the appellant was in effect
a decision on an enquiry into which of the two entities was the respondents'
employer. That enquiry is an
irregularity on the grounds of absence of jurisdiction. Consequently the order
cannot stand.
As
already stated above, this court has the power to exercise the same review
powers as the High Court. Consequently, if it comes to the notice of this court
that an irregularity has occurred in any proceedings or in the making of an
order, it is appropriate for this court to review the proceedings or decision
in question.
The
failure to determine the point in limine
and the order granted pursuant to that failure constitute gross irregularities
warranting interference by this court. As
a consequence, the order amending the citation of the parties and substituting
the appellant for PG Timbers cannot stand as it is based on a nullity. It follows therefore that it must be set
aside. The orders dated 2 August 2013
and 11 November 2013 respectively must be set aside.
In the premises, the appeal succeeds and
an order will issue as follows:
IT IS ORDERED THAT:
1.
The
appeal be and is hereby allowed with costs.
2.
The judgment of the court a quo under Case No LC/H/413/12 dated 2
August 2013 be and is hereby set aside.
3.
The matter is remitted to the court a quo for determination.
4.
The judgment of the court a quo under Case No LC/H/413/12 dated 11
November 2013 be and is hereby set aside and substituted with the following:
“The
chamber application for the amendment of the citation of the parties to the
dispute is struck off the roll with no order as to costs.”
GWAUNZA JA: I agree
PATEL JA: I agree
Mawere & Sibanda,
appellant's legal practitioners
Munyaradzi Gwisai & Partners, respondents' legal
practitioners
