Charity Mandizha v Chief Executive Officer Zimbabwe National Roads Administration

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.
LC/H/12/2021
HARARE, 23 NOVEMBER 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/12/2021

HARARE, 23 NOVEMBER 2020			CASE NO. LC/H/APP/136/20

LC/H/APP/135/20

LC/H/APP/137/20

AND   12 MARCH 2021					       LC/H/APP/139/20

In the matter between:

1) CHARITY MANDIZHA 						APPLICANT

Versus

CHIEF EXECUTIVE OFFICER ZIMBABWE			1st  RESPONDENT

NATIONAL ROADS ADMINISTRATION

And

ZIMBABWE NATIONAL ROADS ADMINISTRATION 	2ND RESPONDENT

2) MARSHAL 	JIMA 							APPLICANT

Versus

CHIEF EXECUTIVE OFFICER ZIMBABWE			1st  RESPONDENT

NATIONAL ROADS ADMINISTRATION

And

ZIMBABWE NATIONAL ROADS ADMINISTRATION 	2ND RESPONDENT

3) PAULINE SITHOLE						APPLICANT

Versus

CHIEF EXECUTIVE OFFICER ZIMBABWE			1st  RESPONDENT

NATIONAL ROADS ADMINISTRATION

And

ZIMBABWE NATIONAL ROADS ADMINISTRATION 	2ND RESPONDENT

4) TALENT MANYENGAVANA 					APPLICANT

Versus

CHIEF EXECUTIVE OFFICER ZIMBABWE			1st RESPONDENT

NATIONAL ROADS ADMINISTRATION

And

ZIMBABWE NATIONAL ROADS ADMINISTRATION 	2ND RESPONDENT

Before The Honourable Kudya J

For Applicant 		Mashizha (Legal Practitioner)

For Respondent		 Makumbe (Legal Practitioner)

KUDYA J:

This judgement relates to and addresses issues in the following cases Charity Mandizha vs C.E.O ZINARA LC/H/APP/136/20 Marshal Jima vs CEO ZINARA LC/H/APP/139/20 Pauline Sithole vs CEO ZINARA LC/H/APP/135/20 and Talent Manyengavana vs CEO ZINARA LC/H/APP/137/20.

All the applicants in the above cited cases seek to have the applications which they have filed against ZINARA as quoted above to be withdrawn.  They tender costs on the ordinary scale ZINARA has no problems with the cases being withdrawn but contends that punitive costs orders be made to accompany the withdrawal orders.  It is only the issue of costs which is addressed by this judgement.

It is ZINARA’s argument that it was put out of pocket by having to defend matters where it was clear that such matters could not be dealt with by the Labour court. Its argument is that it brought such a fact to the attention of the applicants but these persisted all the way to set down thus putting it out of pocket.

In its view the pursuance of the matters in the wrong fora was tantamount to vexatious and reckless conduct frowned upon by the case of Mahembe vs Matambo     HC-B-322-02 calling for the punitive costs scale.  In its view it is just and proper that the punitive scale be used on the withdrawal of these matters.

On the hand applicants persist that their tender of costs on the ordinary scale is in order since it is not like ZINARA is without blemish.  They state for the record that it was the cumulative effect of the fits and starts manner in which ZINARA conducted its affairs when it dealt with the labour disputes giving rise to the cases raised before the court.  They reason therefore that they should not be penalised for issues which ZINARA did not take issue with at the outset but which only became apparent when the court raised the question whether the matters were properly before it.

It is settled that punitive costs scale need only be resorted in grave matters.  In the matter at hand there is nothing to suggest that choice of wrong fora to prosecute one’s claim can be adjudged vexatious and reckless.  The court is therefore satisfied that no good case for a punitive costs order has been made.  The application therefore fails

It is ordered that

The following matters be and are hereby withdrawn with costs on the ordinary scale,

Charity Mandizha vs CEO ZINARA LC/H/APP/136/20

Pauline Sithole vs CEO ZINARA LC/H/APP/135/20

Marshal Jima vs CEO ZINARA LC/H/APP/135/20

Talent Manyengavana vs CEO ZINARA LC/H/APP/137/20

Mashizha and Associates -   		 Applicant’s Legal Practitioners

Kadzere, Hungwe and Mandevere- 	 Respondent’s Legal Practitioners