Gilbert Manda v Damic Security (Pvt) Ltd

### Preamble
1
HB 146/19
HC 3361/18
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GILBERT MANDA

VERSUS

DAMIC SECURITY (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 8 JULY & 3 OCTOBER 2019

Opposed application

Applicant in person

Mrs C. Bhebhe for the respondent

MOYO J:	This is an application wherein the applicant seeks an order for reinstatement by his employer.  The application is somewhat confusing in that on one hand it is presented as an application where the relief of mandamus is being sought and yet on the other hand it presents itself as an application for the registration of an arbitral award.

The matter has a very long history dating back to 2011.  The brief facts are that applicant was employed by the respondent.  He was later dismissed after having been convicted of misconduct.  An arbitrator who entertained the matter reinstated him to his position.  The Labour Court confirmed the arbitration award.  The employer did not reinstate the applicant causing him to quantify damages in lieu of reinstatement.

Applicant did not accept the quantified amount by the arbitrator and so he approached the Labour Court on appeal.  His appeal was dismissed in default.  Applicant filed an application for rescission of the judgment dismissing his appeal.  It too was dismissed at the instance of the respondent.  Applicant then filed another application which he termed application for late filing of heads of argument.   This application was irregular and incompetent and amounted to no application.  It was consequently struck off the roll by the Labour Court.

Applicant then filed another application at the Labour Court, one that he termed application for condonation and rescission.  Applicant later withdrew his application upon advice that it was not properly before court.  With his persistent and unrelenting conduct, applicant filed yet another application for condonation of the late noting of an application for rescission of judgment.  This application was dismissed.  Applicant then approached this court for the 9th occasion to make an application for a mandamus/ registration of an arbitral award.  The applicant cannot approach this court seeking mandamus on a labour matter that has long been finalised by the Labour Court.  Parties can only approach this court with labour matters on the appropriate forum.  That is, in terms of our statutory provisions and rules of procedure.  There is no procedure in our law and in our statutes that provides for taking a finalised labour matter to the High Court save for in terms of the provisions of section 98 of the Labour Act.  Again, applicant submitted that he does not believe that the quantified sums are adequate and that he wants the amount quantified by the arbitrator revisited as it is a paltry sum.  The order sought by applicant is in itself incompetent in that the relief he seeks is as follows:

“Then (sic) it is accordingly ordered that the respondent might reinstate applicant in his position without loss of pay and benefits, costs (sic), damages and prejudice to be borne by the respondent at an attorney and client scale.”

This relief is inappropriate in that damages in lieu of reinstatement were quantified and duly paid by the respondent as evidenced by the notice of opposition and attached annexures.  Even applicant in his oral submissions in court stated that he did not want to be paid that sum as it was too little.  He even tried to challenge it at the Labour Court but failed.  That is why in his draft order he wants this court to register an award for reinstatement and yet there is no such award.  There is an award for $209 which respondent allegedly paid but applicant does not want that, he wants reinstatement which is impossible.  This court does not re-try labour matters and give different verdicts.  This court only registers an award as it is, the award in monetary terms was complied with and the one that applicant wants does not exist and therefore this court cannot register a non-existent award.  Neither can this court make its own award to substitute the original one.  Such power does not exist anywhere in our statutes.

The Labour Court dealt with applicant’s effort to challenge the qualification and dismissed it.  This court has no powers to resuscitate matters that have been finalised by the Labour Court.  This application is unprecedented, baseless and is an abuse of court process.  Applicant does not want to abide by the decision of the Labour Court which dismissed his appeal and the award.  Even before this court, applicant made a lame submission that he did not want to be paid damages in lieu of reinstatement but he wanted to be reinstated.  Our labour laws allow an employer to opt out of reinstating an employee and to instead pay the employee damages in lieu of reinstatement.  No one can re-invent the labour laws.  Applicant must just abide by the laws as he cannot make the law, or have the law bend towards what he wants.  The law is the law.  It does not change its colours or basic tenets to suit the intentions of an individual.  Applicant is simply abusing court process and for this he must be penalized in costs.  The application is ill conceived, devoid of merit, unprocedural and very bad at law.  It is for these reasons that it will be dismissed with punitive costs against the applicant.

I accordingly make the following order:

The application is dismissed with costs on the legal practitioner and client scale.

Coghlan & Welsh, respondent’s legal practitioners