Ahmadiyya Muslim Jamaat Zimbabwe v Ganogada Selliano and Phillip Bvumbe

IN THE LABOUR COURT OF ZIMBABWE              JUDGMENTNO. LC/H/107/2013
HELD AT HARARE ON 19 NOVEMBER, 2012          CASENO.LC/REV/H/41/2012

In the matter between



AHIMADIYYA MUSLIM                            -     APPLICANT

JAMAAT ZIMBABWE

And

GANOGADA SELLIANO                            -     1st RESPONDENT

And

PHILLIP BVUMBE                               -     2nd RESPONDENT



Before The Honourable L. Kudya, President

For Applicant        : Mr P.C Paul (Legal Practitioner)

For Respondent       : Mr E. Mudoti (Unionist)


KUDYA, L


      This is an application for review of the decision of the second

Respondent who made an order in favour of the 1 st Respondent in a case of

an alleged unfair labour practice.



      The basic grounds of the review are that the 2 nd Respondent in his

capacity as an arbitrator in a matter between the 1 st Respondent and one

Wassi, erred by exceeding his jurisdiction when he substituted Wassi with

the Applicant as the Respondent in the matter which was before him. He did


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so well knowing that the matter before him had been filed as a matter

between Wassi and the 1st Respondent and not as against the Applicant.



         The brief facts of the case are as follows: 1st Respondent was in

Applicant’s employ since December 2002. In April 2010 he alleged that one

Wassi, Applicant’s Mission representative had unlawfully terminated his

employment .He sought recourse through the legal channel against Wassi

until he found himself before the 2ndRespondent the arbitrator.



      During the arbitration proceedings Wassi objected to being sued by

the 1st Respondent arguing that the 1st Respondent’s employer was the now

Applicant. The fact was conceded to by the 1 st Respondent but he persisted

in his claim against Wassi. He relied on the definition section of the Labour

Act Chapter 28:01 which defines an employer in this manner:


      “employer means any person whatsoever       who employs of provides work for another
      person and remunerates or expressly or tacitly undertakes to remunerate him , and
      includes –
      the manager , agent or representative of such person who is in charge or control of the
      work upon which such other person is employed------------“


      As far as he was concerned Wassi and the now Applicant was one and

the same person since Wassi was acting on behalf of the Applicant.

Evidence was led to show why the 1st Respondent should be said to have

been in the employ of the Applicant as well as to show that indeed the

Applicant owed the 1st Respondent his dues.




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      The arbitrator went on to substitute Wasii with the now Applicant

arguing that since it was clear that the correct Respondent should have

been the now Applicant it was in order for him to make that substitution. He

noted also that on the merits of the case before him, the Applicant knew of

its indebtedness to the 1st Respondent. He then went on to make an order

against the Applicant citing


                                              JUDGMENTNO. LC/H/107/2013



the fact that the ill citation of Wassi in all the earlier pleadings was a

technical error which was no bar for him granting the 1 st Respondent the

relief due to him.

It is this exercise of powers by the arbitrator which is the basis of this

application for review.



    This court’s review powers are set out clearly in the Labour Act and the

High Court Act. Section 89 of the Labour Act provides thus:


      “89(1)
      The Labour court shall exercise the following functions:
      d(1)exercise the same powers of review as would be exercisable by the High Court in
      respect of labour matters;”


      The High Court Act Chapter 7:06 then goes on to set out in section 26

to 28 the nature of the powers and circumstances when these can be

exercised as well as what the court has to do once it finds that the issue

raised is indeed a reviewable issue. The issue of jurisdiction is cited as one


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of the grounds upon which this court can be approached by a party for it to

exercise its review powers .In the light of the facts of the instant case where

the Applicant is alleging that the arbitrator exceeded his powers it is

therefore clear that the Application for review is properly before this court



        The crucial issue to be addressed is whether or not the arbitrator

erred as alleged. It is pertinent to note that the issue of jurisdiction is purely

a question of law. What is a question of law is clearly set out in the cases of

Sable Chemicals Industries Ltd vs David Peter Easterbrook SC 18/10 and

that of Norman Matsuta and Tonderai Katsande vs Cargar Pvt Ltd SC

47/09




                                         JUDGMENTNO. LC/H/107/2013



        The question in the instant case is whether the law allows an

arbitrator or an adjudicator to substitute parties who appear before him

when he has been shown or given evidence pointing out to the correct party

to the proceedings.



        The Applicant contends that such an action is irregular and beyond

the powers of an adjudicator in a case. It went on to cite the case of Everjoy

Mutandangayi vs Assistant General Manager Old Mutual LC/H /11/94

In this case faced with a case where the wrong party had been cited,

President Chidziva said the following:


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       “-----it follows that if the Appellant had any grievances regarding her dismissal she
      should sue the company and not another employee of that company-------------In the
      circumstances it is clear that the appeal is improperly before the court .It is accordingly
      ordered as follows the appeal be and is hereby dismissed with costs”



      The facts of the above quoted case were almost on all fours with the

facts in the instant case notwithstanding the fact that in the Mutandangayi

case (supra) the court was exercising its appellate powers as opposed to its

review powers.



      Being that as it was, the principle in that case applies with equal force

to the instant case that where a wrong party was cited on the basis that he

was in charge of the Applicant‘s mission. Strangely though, he was not even

cited in his official capacity but in his personal capacity. On the basis of the

reasoning in the Mutandangayi case (supra) it meant that where the 1 st

Respondent cited the wrong party nothing should flow from those

proceedings.
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      This court is fortified in its reasoning by the case of JDM Agro-

Consult and Marketing Ltd vs The Editor of the Herald Newspaper and

the Herald Newspaper HH 61/07. In this case Gowora J made it clear that

where the wrong party has been cited that is fatal to the proceedings. Even

though this case was in the context of a civil case the court is satisfied that it

has equal application in Labour matters.




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In the caseof Bopphelo Bakery Pty Ltd vs Cargo Carriers Pty Ltd 2002 BLR

235 HC Letsidi (Ag) J noted the following


      “the court may permit a summons to be amended by the addition or substitution of a new
      party where such a course would involve no prejudice to the defendant .”



      It is worth noting that, since this case was dealt with in South Africa,

though not binding on the court it has a persuasive effect on this court .

Similarly it involved a civil case. It is however this court’s considered view

that the case still lays a legal principle which applies with equal force to

labour proceedings given the fact that, labour proceedings by their very

nature are civil proceedings if one looks at the standard of proof required in

such cases.



      If one were to apply the above principle to the facts of the instant

case it is apparent that no application to substitute Wassi was made by 1 st

respondent when he discovered that he had not sued the correct

person .Issues of prejudice which are critical in such cases were not

addressed . What is apparent is the fact that the arbitrator was erroneously

swayed by the fact that since there was ample evidence that the correct

party should have been the applicant he therefore was at liberty to make an

order against the Applicant.


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      That course of action in the court’s view was irregular as it flouted

clearly stated legal principles. The mischief behind the law denying an

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adjudicator the powers to substitute parties as was done by the 2 nd

Respondent is apparent. It should be noted that at the commencement of

the proceedings the party who was responding to all the issues raised by

the 1st respondent was Wassi and all the pleadings were addressed d by

him.



       It would be unfair to bind the Applicant to all the pleadings and

submissions made by Wassi in his personal capacity. It is for that simple

reason that the conduct by the arbitrator demonstrates the fact that he

clearly exceeded his mandate.



       On the other hand, the Respondents argue that it was clear that the

Applicant was the correct Respondent at arbitration because the Applicant

had through its Lawyers Musunga and Associates once made a without

prejudice offer of settlement of the claim. Such an argument does not

advance the case any further because the issue which is there is whether the

law allows the adjudicator to on his own accord substitute the parties.



       The issue is that the arbitrator flouted the law and that cannot be

cured by reference to the fact that the identity of the Applicant was apparent

from the evidence on the record before the arbitrator.

 The Respondents’ argument about the undesirability of resolving labour

issues on the basis of technicalities does not apply in a case where there is

deliberate flouting of the law by an adjudicator.




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                                              JUDGMENTNO. LC/H/107/2013



       As correctly submitted by the Applicant when the 1 st Respondent

noted that he had cited the wrong party it was imperative that he withdrew

his claim against Wassi and institute fresh proceedings against the now

Applicant.

His failure to do so and persistence with the wrong party as well as the

substitution of the parties by the arbitrator was not sanctioned by the law.



      The court is therefore satisfied that the 2 nd Respondent’s substitution

of the parties was a legal flaw which goes to the root of the proceedings

which he conducted. In the result his order cannot be made to stand.



      The order by the 2nd Respondent cannot be made to stand as it was

premised on a legal nullity. It is thus not executable against the Applicant as

the matter was effectively between the 1st Respondent and Wassi.



It is therefore ordered as follows:

1. That the application for review being with merit be and is hereby upheld,

2. The 2nd Respondent’s order is accordingly set aside.




L KUDYA

PRESIDENT LABOUR COURT




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Wintertons - Applicant’s legal Practitioners

Z.F.T.U – Respondent’s Representative




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