Baison Maza and 14 Others v Dandy Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/ 121/2021
HARARE, 1 JUNE 2021
CASE NO. LC/H/REV/35/19
AND 27 AUGUST 2021
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/ 121/2021

HARARE, 1 JUNE 2021 					 CASE NO. LC/H/REV/35/19

AND 27 AUGUST  2021

In the matter between:

BAISON MAZA AND 14 OTHERS					APPLICANTS

versus

DANDY ZIMBABWE (PVT) LTD						RESPONDENT

Before The Honourable Makamure J

For the Applicants			: 	Mr A. Windimani (Trade Unionist)

For the Respondent			: 	Mr I. Chagonda (Legal Practitioner)

MAKAMURE J:

This is an application for leave to appeal a judgment of this court to the Supreme Court.

Appeals from this court to the Supreme Court are provided for in section 92 F (1) of the Labour Act [Chapter 28:01] (The Act) which reads:

“(1)	An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.”

It is therefore trite that only questions or a question of law should be raised as grounds of appeal.

Further the applicant must show that there are prospects of success on appeal. In Hurungwe Rural District Councsel v (1) Joram Misheck Moyo (2) Karol Mutenga (3) Jackson Mashinge SC 37/21 the Supreme Court referred to the case of Ngazimbi v Murowa Diamonds (Pvt) Ltd 2013 (1) ZLR 569 (S) where the following remarks were made:

“It is important to relate the requirement for an application for leave to appeal to the purposes thereof. These are for the decision to be made on the questions whether the grounds of appeal relate to questions of law and the existence of prospects of success on appeal.”

In terms of the Rule 14 (1) of the Rules of this court Statutory Instrument 150/2017:

“A court application shall be in Form LC1 and shall be supported by one or more affidavits setting out the facts upon which the applicant relies together with the draft order.”

In the present matter the applicants lodged a, review, application with this court. The review application failed dismally hence the intended appeal.

I now explain why I say the application failed dismally.

In order for a review application to succeed, the applicant must satisfy the provisions of section 92 EE of The Act. During the course of the hearing for the application, the applicant conceded upon being asked by the court that none of the requirements of set out in section 92 EE were met. The application for review therefore was an unmitigated failure. It amounted to a judgment by consent.

The Constitution of Zimbabwe endowed its citizens with the right to justice. After the dismissal of their application for review, applicants exercised their right by approaching this court once again this time seeking leave to appeal to the Supreme Court.

I mentioned earlier that the rules require that an affidavit accompanies the application. On record is a document referred to as an affidavit by Baison Maza. It is signed on behalf of “Baison Maza and 14 Others”. Mr Chagonda who appeared on behalf of the respondent argued that, that document cannot be called an affidavit. Mr Chagonda argued that it is not known whether the deponent is Baison Maza or any one of the “fourteen others”. Further Mr Chagonda argued that there are no other affidavits deposed to by the fourteen others. Mr Chagonda submitted that the said document is therefore not an affidavit. I agree. One person cannot depose to an affidavit and purport to do it on behalf of others. A person can only depose to what they know. If others agree with this person, in this case Baison Maza, they are each obliged to swear to an affidavit confirming that position. Such confirmation is lacking. It is trite that an application falls or stands on its affidavit.

In Cossam Chiangwa & Seven Others v Apostolic Faith Mission in Zimbabwe & Seven Others SC 67/21 the Supreme Court stated that it is a well-established principle of our law that a case stands or falls on its founding affidavit.

Thus on the basis of there being no founding or accompanying affidavit alone, the application for leave to appeal cannot succeed.

Then the next hurdle is the draft grounds of appeal. There is no iota of evidence of what the point of law to be raised is. Further when Mr Windimani addressed the court, he did so in such a non-chalant manner that the court had to ask him to be serious since he was before a court of law and representing persons who deserved proper representation. Mr Wandimani never addressed any of the requirements. Instead Mr Windimani chose to make reference to the conciliation proceedings. In a veiled fashion he also appeared to make reference the application for review. These two stages i.e conciliation and review, are already behind us. What is required is to address the purpose of the appeal by focusing on the draft grounds of appeal. It was in fact a task to try and make head or tail of Mr Windimani’s address. However, it is clear that he conceded before the court during the application for review that the application for review was not in compliance with the provisions of section 92 EE of the Act. This led the court to dismissing the application for review. As noted earlier on, the dismissal amounted to a judgment by consent. Such a judgment cannot be either rescinded or appealed except in exceptional circumstances. In his draft notice of appeal to the Supreme Court, the grounds are hopeless in view of the mentioned judgment which is sought to be impugned. In his oral address Mr Windimani completely failed to make any meaningful reference to the draft grounds of appeal.

Mr Chagonda submitted that the application for leave to appeal was an abuse of process. Mr Chagonda, submitted that, in view of the manner that the application was filed and argued, the court should dismiss the application with costs on the punitive scale. Mr Chagonda submitted that it is time that trade unionist who appear in courts be properly informed of the procedures of the court and be articulate in them. This is in view of the fact that, like in the present case, they (trade unionists) represent a constituency (dismissed workers) which is already struggling and hence the need for them to be able to advise and represent their clients appropriately.

This is a court of equity meant to ensure that workplace justice is determined expeditiously in accordance with the dictates of The Act. While it is a court of equity, it is not a forum where litigants appear for the sake of appearing. Neither is it a court where litigants appear simply to assert their constitutional right even where there is no cause of action which the law recognizes. Labour disputes are by their nature bread and butter issues. They are therefore always urgent. These issues must be resolved as soon as practicable given that there are a lot of compliance issues when matters are in the judicial dispute resolution system. This therefore requires diligence on the part of litigants or their representatives to ensure that matters which are bought to court deserve to come to court. Bringing a matter before a court simply to exercise one’s constitutional right or because this particular court is a court of equity or has certain attributes, is a disservice not only to the party bringing the matter, but to the other party and the court. It is an abuse of one’s rights and of the court. This cannot be condoned and is to be condemned in the strongest terms. Courts have a duty to protect themselves from abuse.

It has been submitted on behalf of the respondent that costs be awarded against the applicants on a punitive scale. This, Mr Chagonda submitted should serve as a warning not only to the present representative but to any representative who takes undue advantage of struggling and well-meaning litigants.

The question of costs, is within the discretion of courts to make an appropriate order. Costs on a punitive scale are not easily granted. There has to be an exceptional reason why costs should be on the higher scale.

In 1. Adam and Company (Private) Limited.

2. SG1 Properties (Private) Limited

3. Honourable Retired Justice Smith v

Good Living Real Estate (Private) Limited, SC 50/21, the Supreme Court stated that costs are entirely within the discretion of the court. The Supreme Court at page 11 of its cyclostyled judgment stated as follows:

“In Mahembe v Matambo 2003 (1) ZLR 148 (H) at 150 C – D, the court laid out the circumstances which justify the granting of costs on an attorney and client scale in the following words:

“… the courts only award such costs in situations where it is clear that the losing litigant was not genuine in the pursuance of a stand in the litigation process. Rubin L Law of Costs in South Africa Juta & Co. (1949) 190, classified the grounds upon which would the court be justified in awarding the costs as between attorney and client:

1.	Dishonest conduct in the transaction giving rise to the proceedings or in the proceedings.

2.	Malicious conduct.

3.	Vexations proceedings.

4.	Reckless proceedings.

5.	Frivolous proceedings.   “

Therefore an award of punitive costs is granted in exceptional circumstances against a party whose conduct is not bona fide and warrats censure.”

I am of the view that the present proceedings did not have to happen. The manner in which they were conducted does not appear to be bona fide.

In view of the above the application for leave to appeal the judgment of this court to the Supreme Court cannot succeed.

There is need for the court to show its wrath or displeasure. A case for costs on the higher scale has been made.

In the result the following order is made.

The application for leave to appeal to the Supreme Court be and is hereby dismissed with costs on the attorney and client scale.

Atherstone & Cook, Respondent’s Legal Practitioners.