James Maluso v Delta Beverages (Pvt) Ltd

### Preamble
1
HB 189/19
HC 2877/18
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JAMES MALUSO

Versus

DELTA BEVERAGES (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 20 NOVEMBER & 5 DECEMBER 2019

Opposed Application

A.  Sibanda for the application

Mrs J. Chigova for the respondent

MAKONESE J:	This is an application for registration of an order of the Labour Court in terms of section 92B (3) of the Labour Court Act (Chapter 28:01).  Applicant contends that, the registration of an order obtained in the Labour Court dated 20th October 2017, per KUDYA J is necessary in order to give effect to the order for the purposes of enforcement.  The application is opposed.

The order sought in the draft order is in the following terms:

“1.	The court order issued by the Labour Court of Zimbabwe sitting at Harare on the 20th day of October 2017 under case number LC/H/658/17 setting aside the dismissal of the applicant and remitting the matter to the respondent to deal with the matter afresh within three months of the Labour Court be and is hereby registered as an order of this Honourable court.

2.	The respondent be and is hereby ordered to pay the costs of this application on an attorney and client scale only if it opposed the application.”

In its opposition, the applicant contends that the Labour Court judgment did not impose an obligation on the respondent to reinstate the applicant or pay him a monetary sum.  What the Labour Court did was to set aside the guilty verdict and dismissal imposed by the employer and ordered the matter to be remitted to the respondent.  The respondent was ordered to deal with the matter afresh in a procedurally correct manner.  In any event, the respondent argued, the applicant has since then submitted himself to a disciplinary hearing, rendering the application for the registration of the order unnecessary as the matter has been overtaken by events.  Respondent avers that there is no basis upon which the application for registration can be granted as it is not in the nature of a judgment capable of enforcement in terms of the Labour Act.

Before dealing with the merits of the application for the registration of the Labour Court order it is necessary to observe that by order dated 14th October 2019 I ordered a consolidation of the matters under case numbers HC 2877/18, HC 412/19 ad HC 953/19.  I directed that these matters be heard at the same time.  When the parties appeared to argue the matter on the 26th November 2019, case number HC 953/19 was withdrawn with no order as to costs.  It was  further ordered by consent that under case number HC 412/19, the application for condonation for the late filing of a notice of opposition in the main matter (HC 2877/19), which is the subject of this judgment, be granted by consent.  The parties agreed that in order to curtail the proceedings, it was proper to deal with the application for registration of the Labour Court judgment.  In that way there would be finality to this litigation.

Point in limine

The respondent argued that the applicant failed to comply with the peremptory requirements of the form in an application of this nature.  On that basis alone, the respondent contended, the application should be dismissed with costs.  Applicant failed to utilize the correct form stipulated by Rule 241(2) of the High Court Rules, 1971, and failed to give the respondent, ten (10) days’ notice to oppose the application.  Respondent relied on the case of Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co Zimbabwe (Pvt) Ltd & Anor HH-667-15. The courts have repeatedly warned that legal practitioners must follow the rules of this court.  In this regard, failure to follow the rules of the court usually renders an application fatally defective.  Litigants who do not comply with the rules and choose to design their own forms alien to the rules of this court only have themselves to blame should preliminary objections be taken against the use of wrong forms.  In his regard, I refer to the following cases that have reiterated that legal practitioners must be familiar with the rules and use the correct forms.

See ; Jensen v Acavalo 1993(1) ZLR 216(S); Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H) and Minister of Higher & Tertiary Education v BMA Fastners (Pvt) Ltd & Ors HB-44-14

The applicant’s response to the point in limine is that by opposing the application for the registration of the Labour Court order, the application falls under the ambit of opposed applications and the rules pertaining to such applications should apply.  The notice of opposition was hopelessly out of time.  The respondent was served with the application in terms of Order 32 Rule 33(3) of the High Court Rules.  As indicated earlier, the parties conceded that the application for condonation for the late filing of the notice of opposition should be granted by consent.  It is on this basis, that it becomes superfluous to deal extensively with the point in limine.

Whether the Labour Court judgment is registrable with this court

The main issue for determination is whether the judgment of the Labour Court in case number LC/14/658/2017 (LC 4878/15) is registrable in this court in terms of the Labour Act.  Section 92B (3) provides that any party to whom a decision, order or determination relates may submit for registration the copy of it furnished to him in terms of subsection (2), to the court of any magistrate which would have had justification to make the order had the matter been determined by it, or if the decision, order of determination exceeds the jurisdiction of any Magistrates’ Court, the High Court.  In section 92B (4) it is provided that, where a decision, order, or determination has been registered in terms of subsection (3) it shall have the effect for purposes of enforcement of a civil judgment of the appropriate court. (underlining for  emphasis)

It seems to me quite evident, that the language used in the Act clearly intends that the registration of an order issued by the Labour Court as an order of this court, has as its ultimate purpose, enforcement and execution.  The order of the Labour Court in this instance,  was so the effect that the dismissal of the applicant by the respondent was set aside .The court ordered that the matter be remitted to the employer for a fresh hearing. The court gave a specific period of 3 months within which such hearing was to be conducted. That hearing was not held within the stipulated time frame, but was eventually conducted. The outcome  was not in applicant”s favour. Applicant was aggrieved by the decision which he has taken on review.  It is clear, in my view, that the order sought to be registered cannot be registered in this court. Firstly, the order of the Labour Court has specific terms whose compliance does not require registration with this court. Secondly, the purpose of the registration of an order of the Labour Court is for the purpose of enforcement.  The Labour Court was well placed to enforce its own order.  Thirdly, the purpose of registration is primarily to ensure that the order of the Labour Court is given the effect of a civil judgment. The order sought to be registered does not sound in money. The question that then arises in this particular instance is what the registration of the order would achieve.  Was the order in fact registrable in terms of s92B (3)?  Applicant avers in his founding affidavit that this court”s statutory mandate is to register the order of the Labour Court in terms of section 92B (3) of the Act and not to determine the validity or otherwise of such order.  This court, however, has not sought to determine the validity of the order of the Labour Court.  Applicant goes further to state that if the respondent had any qualms with the order, an appeal should have been noted against the order.  Applicant alleges that his wages and allowances are clearly assured by virtue of the order that set aside the dismissal.  The applicant’s extension of the argument to imply that the order sought to be registered made any determination regarding wages and allowances is simply fallacious.  The Labour Court simply set aside the dismissal and ordered a hearing of the matter afresh.  The applicant then submitted himself to a fresh hearing in terms of that order and a determination has been made.  The applicant has sought a review of the proceedings and the matter is pending.  It is clear that the insistence on the registration of the order of the Labour Court is ill -conceived and has no legal basis.  Assuming the order is to be granted in its present form, it would simply be a brutum fulmen.  This is so because the terms of the order have been complied with.  Even before the order had been complied with, the order itself was capable of enforcement by the Labour Court. There was no need to register the order.

The respondent cited the case of Tembo v P C J Motorways HH-224-17.  In that case DUBE J, dealing with an application for attachment of moveable properly to found jurisdiction held that there was no wisdom in granting an order that was not be capable of enforcement.  She went further to state that this court has an inherent discretion to decline the request by the applicant.  Although the circumstances of that case are not similar to the present case, the principle set out therein applies with equal force.  This court has considered that no useful purpose would be served by registering the order of the Labour Court. The order is not capable of enforcement. In any event, the order has been complied with.

Orders of the court are generally speaking, divided into two categories; orders to pay a sum of money, namely orders ad pecuniam solvendam, and orders to do or to abstain from doing a particular act, or to deliver a thing, namely, orders ad factum praestandum.  See Evans & Friendship v Surtee & Others SC-4-201. The order of the Labour Court falls into the second category.

Applicant seems to be labouring under the mistaken view that the order of the Labour Court ordering a hearing of the matter afresh may be converted into an order for the payment of any outstanding allowances or wages.  There is no basis for such an assumption. I do not find it factually and legally competent to register an order that is not capable of enforcement. For these reasons, and in the exercise of my discretion, I decline to register the order of the Labour Court .

I accordingly, make the following order:

The application be and is hereby dismissed.

The applicant is ordered to pay the cost of suit.

Mhaka Attorneys, applicant’s legal practitioners

Calderwood, Bryce Hendrie & Partners, respondent’s legal practitioners