REPORTABLE
Z.L.R. (40)
Judgment
No S.C. 44\2002
Civil
Appeal No 387\2000
NORMAN
GWAZE v NATIONAL RAILWAYS OF ZIMBABWE
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, ZIYAMBI JA & GWAUNZA AJA
HARARE
MAY 14 & JUNE 24, 2002
The
appellant in person
D.
Mehta,
for the respondent
GWAUNZA
AJA: This is an appeal against the judgment of the High Court,
Harare, in which the appellants claim against the
respondent for,
inter
alia,
damages for wrongful dismissal, was dismissed. The trial court
based its decision on two exceptions raised on behalf of the
respondent,
and thus did not hear argument in respect of, nor
substantively consider the merits of, the dispute between the
parties.
The two
exceptions raised on behalf of the respondent were, firstly that the
matter was res
judicata
and, secondly, that the appellants claim was prescribed. The
learned trial judge, after finding in favour of the respondent
in
relation to the plea of res
judicata,
then dismissed the appellants claim, with no order of costs
against him. He found it unnecessary, in view of his determination,
to consider the exception relating to prescription.
Despite the
lengthy and somewhat rambling fashion in which the appellants
papers (obviously prepared by himself) were presented,
the appellant
is in reality submitting that the learned trial judge erred in
finding that the matter was res
judicata.
The facts of
the matter are concisely set out in the judgment of the court a
quo
and are, briefly, as follows:
The
appellant was employed by the respondent from 1978 to 1992. Between
the 14th
and the 17th
of January 1992, some 4 000 workers of the respondent went on strike
action. Following negotiations between the workers and the
respondent, the latter sought to reinstate the workers who had gone
on strike on condition that they signed re-engagement forms.
The
appellant, who was included among those workers considered to have
gone on strike, refused to sign the forms with the result
that the
respondent sought to dismiss him. The appellant took the matter of
what he considered to have been an unlawful dismissal,
to the Labour
Tribunal. He was seeking reinstatement. However, while the
process of determining the matter was still underway
the appellant
tendered his resignation and demanded his terminal benefits. The
respondent, which had initially not accepted the
appellants
resignation, eventually paid him all his terminal benefits on 13
April 1992. The Labour Relations Tribunal proceeded
to hear the
matter and handed down its determination on 15 June 1995.
On
the 3rd
of July 1996 the appellant issued summons against the respondent
claiming, in terms of s 13(6) of the Labour Relations Act No
16/85:
gross
back pay of $112 000
damages
for pain and suffering ($50 000)
a
voluntary early retirement package which he asserted he would have
been entitled to had he not been wrongfully dismissed ($88
000)
damages
of $42 000 representing the value of lapsed insurance policies
damages
for the loss of a house that he alleged he was forced of sell due to
his inability to keep up with the payment of rentals
and related
charges ($75 000)
damages
for emotional distress and contumelia that he asserted he suffered
after his wife left him due to the destitution occasioned
by the
unlawful dismissal
damages
for the loss of a Social Dimensions Fund Loan that he asserts he
would have acquired had he offered himself for voluntary
early
retirement ($80 000)
damages
for the loss of a second wife whom he asserts left him ($45 000),
and
interest
on all amounts claimed at the prescribed rate and costs of suit.
The parts of
the Labour Tribunals determination of the appellants case,
that are relevant to the matter before this Court
read as follows:-
appellant
cannot be said to have been involved in the unlawful collective job
action. There is no proof to show that he was a striking
employee.
With that conclusion, appellant cannot be held to have terminated
his contract of employment by not signing the re-engagement
form
His dismissal, therefore, was unlawful as on a balance of
probabilities appellant did not go on strike.
Appellant
should, therefore, be paid his full salary from January 1992 to the
day he got his terminal benefits when he is deemed to
have resigned.
This is up to the 13th
of April, 1992.
The
Tribunal then gave its order in these words:-
The
order of the Tribunal is that;
the
appeal succeeds
the
respondent is ordered to pay the appellant his full salary from
January of 1992 up to the 13th
of April 1992 when appellant is deemed to have terminated his
contract of employment.
In
interpreting this order, the learned trial judge noted, correctly in
my view, as follows:-
It
would appear to this court the Tribunal was saying, in effect, that:
the
plaintiffs dismissal from employment was unlawful, and
the
plaintiff is deemed to have resigned from employment on the 13th
of April when he was paid his terminal benefits.
It
is evident that had the appellant not tendered his resignation,
demanded and was paid, his terminal benefits, he would have been
entitled to reinstatement and payment of any arrear salaries and
benefits. Should such re-instatement not have been possible, the
appellant would have been entitled to damages as an alternative
thereto, in terms of Sec 96(1)(c) of the Act which provides as
follows:-
Without
derogation from the generality of sections ninety three and ninety
five, a determination made in terms of those sections may
provide for
-
reinstatement
or employment in a job
Provided
that any such determination shall specify an amount of damages to be
awarded to the employee concerned as an alternative
to his
reinstatement or employment.
In
Gauntlet Security
Services (Pvt) Ltd v Rodgers Leonard
GUBBAY CJ explained the effect of this section as follows:-
By
its very wording, as well as read in the context of the section as a
whole, it is implicit that the alternative award of damages
relates
solely to the unlawful termination of the contract of employment.
The damages so specified must arise ex
contractu.
By
the same token, had the appellant not tendered his resignation, his
claim for damages over and above the wages and benefits he
received,
would have been properly premised on Sec 13(6) of the Act. That is,
provided such damages and on the authority of Gauntlet
Security Services
case supra,
had arisen ex
contractu. There is,
in my view, and given the purpose of the Labour Relations Act as a
whole, which is generally, to regulate the conditions
of employment
and related matters, no reason to suppose that other types of damages
are envisaged under this section.
Section
13(6) of the Labour Relations Act [Chapter 28:01] reads as follows:-
(6) Nothing
contained in this section shall be construed as precluding a person
referred to in subsection (1) or his representative
or the executor
of his estate, as the case may be, from claiming over and above any
wages or benefits to which he or his estate is
entitled in terms of
subsection (1), damages for any prejudice or loss suffered in
connection with such dismissal, termination, resignation
incapacitation or death, as the case may be.
Section
13 deals with the payment of wages and benefits upon the termination
of an employees employment.
The
Labour Tribunal ordered that the appellant be paid his full salary
from the time he was unlawfully dismissed to the time that
he was
deemed to have resigned. Re-instatement or damages in lieu thereof
were no longer an option for the appellant. Even had
damages in
lieu of re-instatement been payable, they would have been limited to
compensation for the loss of any benefit to which
he was
contractually entitled and of which he was deprived in consequence of
the breach.
Accordingly any claim by the appellant for damages ex
contractu arising out
of his unlawful dismissal was properly found by the court a
quo to be res
judicata.
The
learned trial judge correctly outlined the requisites of a plea of
res judicata
as follows:-
The
requisites of a plea of lis
pendens are the same
with regard to the person, cause of action and subject matter as
those of a plea of res
judicata which in turn
are that the two actions must have been between the parties or their
successors in title, concerning the same subject
matter and founded
on the same cause of complaint.
The
learned judge found that the issue of the plaintiffs unlawful
dismissal was canvassed and determined by the Labour Tribunal,
which
had issued a final and definitive judgment regarding the issue
raised.
My
view is that this finding is correct and sound, but only in so far as
the part of the appellants claim that related to damages
arising
ex contractu
is concerned. The correctness of this finding is reinforced
in the following words, cited with approval by SANDURA JA in
Banda
and Others v Zisco
(1999 (1) ZLR 340 at 342):-
The
previous judgment is only res
judicata as regards
matters between the parties which the judgment actually affects and
when the plea is raised, it therefore becomes essential
to determine
whether the present claim is actually affected by the previous
judgment.
Applying
this principle to the appellants claims, it is evident that the
judgment of the Labour Tribunal affected the parts of
the appellants
claim relating to:
gross
back pay of $112 000
voluntary
early retirement package of $88 000, and
Social
Dimension Fund loans that the appellant said he would have acquired
had he offered himself for voluntary early retirement.
The
issue of back pay was adequately dealt with by the Labour Tribunal
when it ordered that the appellant be paid his arrear salaries
for
the duration of his unlawful dismissal. It cannot be resuscitated.
By his action in voluntarily resigning from his job, the
appellant
forfeited any right he may have had to a voluntary early retirement.
The same applies to the Social Dimension Fund loan
which the
appellant, correctly or not, claims was linked to voluntary early
retirement.
However,
a closer look at the breakdown of the appellants claims in his
declaration shows that in addition to these claims the
appellant was
claiming other damages, not on the basis of his contract of
employment but on the basis of the law of delict. He
was, for
instance, claiming damages for pain and suffering, the value of
lapsed insurance policies, forced sale of his house because
he could
not keep up with certain payments like rent and rates and damages for
emotional distress and contumelia.
It
is an accepted principle of the law that the existence of a
concurrent contractual liability is no bar to an action in delict,
provided that the requirements of delictual liability are also
satisfied.
The difference between these two actions is succinctly stated as
follows by VAN DEN HEEVER JA in Trotman
and Anor v Edwick:-
a
litigant who sues on contract sues to have his bargain or its
equivalent in money or in money and kind. The litigant who sues
on
delict sues to recover the loss which he had sustained because of the
wrongful conduct of another, in other words, that amount
by which his
patrimony has been diminished by such conduct should be restored to
him.
Whatever
the merits or demerits of his claims and regardless of whether or not
the appellant would be able to link these damages
to his unlawful
dismissal, the point remains that the appellant did not bring those
delictual claims before the Labour Tribunal for
determination, even
had such Tribunal had the jurisdiction to deal with such matters (see
above).
The
question that then arises is, if in its determination of the
appellants appeal against wrongful dismissal the Labour Tribunal
did not address its mind to these delictual damages, can it now be
said that the matter is res
judicata?
For
a plea of res judicata
to succeed all the three requisites outlined above should be
satisfied. This point was stressed by MULLER J in African
Wanderers FC v Wanderers FC
while restating the requisites of a plea of res
judicata as follows:-
There
is nevertheless no room for this exception unless a suit which had
been brought to an end is set in motion afresh between the
same
persons about the same matter and on the same cause for claiming, so
that the exception falls away if one of these three things is
lacking. (my
emphasis)
There
is no doubt that the two actions were between the same parties, and
that they were founded on the same cause of complaint,
i.e. the
wrongful dismissal of the appellant.
The
other requisite, that the two actions concerned the same subject
matter has not, in my view, been satisfied. The question
that
arises is, of course, what is meant by subject matter. The
definition was given in Horowitz
v Brock and Others
as follows:-
The
requisites of a valid defence of res
judicata in Roman
Dutch law are that the matter adjudicated upon, on which the defence
relies, must have been for the same cause, between
the same parties
and the same thing must
have been demanded.
(my emphasis)
To
illustrate what was meant by the same thing having been demanded, the
learned judge went on to quote the following passage from
African
Farms and Townships Ltd v Cape Town Municipality:-
that
where a court has come to a decision on the merits of a question in
issue, that question, at any rate as a causa
petendi
of the same thing between the same parties, cannot be resuscitated in
subsequent proceedings.
In
casu, the appellant
neither did, nor could he have (given s 96(1)(c) of the Labour
Relations Act), made, the issue of the delictual damages
in question,
a question in issue at the Labour Relations Tribunal. That
being the case, it cannot be said that in his claim
in the court a
quo, that he was
attempting to resuscitate the same issue in subsequent
proceedings. Nor can it be said that the Tribunal came
to a
decision on the merits of the same issue. The subject matter of the
two actions was not the same.
I
find accordingly that the issue of the delictual damages was not
dealt with by the Labour Tribunal and was therefore being brought
to
court, ie the High Court, for the first time. In that respect that
issue was not res
judicata. The
appellant was entitled, barring any other impediment like
prescription, and whatever his prospects of success may have been,
to
a trial and a determination, on the merits, of his claim.
On
the evidence before the court however, this determination in favour
of the appellant becomes academic when consideration is given
to the
exception relating to prescription. Although the learned trial
judge did not make a determination on this exception, I find
it
appropriate, in order to bring finality to this matter and not give
the appellant the false hope that he may succeed on his claim,
to
consider and make a determination on the issue, on the strength of
the evidence that is before the court.
It
is not in dispute that the cause of action, that is the appellants
unlawful dismissal, arose on the 22nd
of January, 1992. The appellant took the matter to the Ministry of
Labour and eventually to the Labour Relations Tribunal. The
Tribunals determination on the matter was handed down on the 25th
of March, 1995. The appellant issued summons in the present matter
on the 3rd
of July, 1996. In view of this courts finding on the plea of res
judicata, the dispute
concerning whether or not prescription was interrupted, whatever its
merits, could only have applied to the parts of
the appellants
claim that are premised on his contract of employment. The parts of
his claim that are based on delict, having
been brought to court for
the first time in the court a
quo, were clearly
instituted outside of the prescriptive period of three years. The
plea of prescription in that respect therefore
succeeds.
All
in all the appeal must, therefore, fail. The respondent, which
ordinarily would have been entitled to costs, has chosen to forego
them. Therefore no order of costs shall be made against the
appellant.
The
appeal is accordingly dismissed.
SANDURA
JA: I agree
ZIYAMBI
JA: I agree
Webb
Low & Barry,
respondent's legal practitioners
