Judgment No. SC 24/03

Civil Appeal No. 34/03

MARK TAWONEZVI v GEDDES LIMITED

SUPREME COURT OF ZIMBABWE

SANDURA  JA, ZIYAMBI JA & MALABA JA

HARARE, JUNE 9 & OCTOBER 2, 2003

The appellant in person

T Hussein, for the respondent

ZIYAMBI JA: The appellant was employed by the respondent as its chief executive. On 10 August 1998 the respondent, purporting to act in terms of its Code of Conduct (“the Code”), dismissed the appellant from its employ. The appellant lodged an appeal with the then Labour Relations Tribunal (now the Labour Court), to which I shall hereinafter refer as “the Tribunal”.

Some thirty-three months later, the appellant applied to the High Court for a declaratory order declaring his dismissal null and void on the grounds of non-compliance with the Code, the allegation being that the official who conducted the disciplinary hearing resulting in his dismissal was not authorised in terms of the Code to do so. The High Court found in favour of the appellant and issued a declaratory order as follows:

“1. THAT misconduct proceedings instituted against the applicant, together with his suspension, preferment of misconduct charges, determination of these charges and meting (out) of penalty be set aside as null and void.

2. THAT the respondent pay to the applicant the salary and other benefits due to him from the date of his suspension, being 10 August 1998, minus whatever sum he is proved to owe the respondent and any deductions required by law.

3. THAT the respondent shall pay the costs of this application.”

The respondent, aggrieved by this decision, appealed to the Supreme Court. In the judgment of the Court, delivered by MALABA JA on 27 May 2002, (See Geddes Limited v Mark Tawonezvi SC 34/02), the appeal was dismissed.

Meanwhile, the appellant, on 14 February 2002, and before the judgment of this Court was handed down, pursued his appeal before the Tribunal and obtained judgment in default of appearance by the respondent. The Tribunal ordered the respondent to reinstate the appellant or pay damages to be agreed between the parties, failing which the parties were to return to the Tribunal for the quantification of the damages due to the appellant. Pursuant to the issue of that order, the appellant wrote to the respondent on 28 February 2002 setting out the terms of the order and advising the respondent, “if you find reinstatement inappropriate you can arrange a meeting to discuss the quantum of damages giving prior notice of your offer”.

When no response was received from the respondent, the appellant set the matter down for damages to be assessed by the Tribunal. A copy of the order of the Tribunal is not attached to the record, but it is common cause that an assessment of damages was made.

Apparently dissatisfied with the assessment made by the Tribunal, the appellant then filed an application in the High Court seeking an order nullifying the order of the Tribunal. It was alleged, in support of the application, that the proceedings before the Tribunal were founded on invalid proceedings and were, therefore, null and void. The High Court dismissed the application on the grounds that the appellant, having sought and obtained from the Tribunal an assessment of damages in lieu of reinstatement, the application was frivolous and vexatious. It is against this order that the appellant now appeals.

The main ground of appeal advanced by the appellant in his heads of argument was a repetition of that advanced before the High Court. It is that the court a quo erred in failing to conclude that the proceedings before the Tribunal were invalid because they were founded on invalid proceedings.

Section 101 of the Labour Relations Act [Chapter 28:01], which was the governing legislation at the time and which I shall refer to as “the Act”, provides in subss (7) and (8) as follows:

“101 (7) Any person aggrieved by –

(a) a determination made in his case under a code; or

(b) the conduct of any proceedings in terms of a code;

may, within such time and in such manner as may be prescribed, appeal against such determination or conduct to the Tribunal.

(8) On an appeal in terms of subsection (7) the Tribunal may –

(a) confirm the determination or proceedings appealed against; or

(b) remit the matter for determination by the person, committee or authority referred to in paragraph (d) of subsection (3); or

(c) substitute its own determination for that appealed against.”

It will be readily apparent that the submission by the appellant that the proceedings before the Tribunal were unlawful is without foundation. It is the appellant who resorted to the Tribunal for a remedy on appeal - an option to which he was entitled to avail himself in terms of s 101(7) of the Act. It may be that he is not satisfied with the result - and if he is not, he has the right of appeal to this Court on a point of law - but there can be no question of the proceedings being a nullity.

In any event there is merit in Mr Hussein’s submission that the appellant has compromised his judgment by seeking an assessment of the damages. See Glenwood Timbers (Pvt) Ltd v Zimbabwe Development Bank & Anor HH 4/2001.

Accordingly the appeal is dismissed. Costs would normally follow the event, but Mr Hussein has indicated to the Court that in view of the fact that the appellant is not legally represented he does not press for an order of costs against him. There will therefore be no order as to costs.

SANDURA  JA: I agree.

MALABA JA: I agree.

Hussein Ranchod & Company, respondent’s legal practitioners