Erickson Mvudu v Agricultural and Rural Development Authority (ARDA)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/23/2021
HARARE, 03 NOVEMBER 2020
CASE NO.
JUDGMENT NO. LC/H/APP/112/19
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/23/2021

HARARE, 03 NOVEMBER 2020               	  CASE NO. LC/H/APP/112/19

AND 26 MARCH 2021

In the matter between:-

ERICKSON MVUDUDU						APPLICANT

And

AGRICULTURAL AND RURAL DEVELOPMENT 		RESPONDENT

AUTHORITY (ARDA)

Before Honourable Hove, Judge

For Applicant		In Person

For Respondent		Innocent Chingarande

HOVE, J:

This is an application for referral of constitutional issues to the constitutional court in terms of section 175 (4) of the constitution of Zimbabwe, Amendment (No 20) Act, 2013.

A brief history of this matter will be necessary to appreciate the nature of the matter that is giving rise to this application.

The applicant was employed by the respondent as its Chief executive officer/ General Manager. He was employed with effect from 1 January, 2008 and the respondent notified the applicant that his employment had been terminated on 19 May 2009.  Applicant refered the matter for conciliation when conciliation failed, the matter was referred for arbitration.

The arbitral award was to the effect that the dismissal from employment was unlawful and the termination was set aside. The arbitrator also ordered reinstatement and in the event that reinstatement was no longer tenable, the parties were to negotiate damages in lieu of reinstatement.

The matter was appealed to the Labour Court and the court dealt with both the appeal and a cross appeal and ordered that the appellant be paid backpay and benefits in sum of USD$19 384.04, cash in lieu of leave and 60 months salary as damages for loss of employment.

The matter was appealed to the Supreme Court where the court disposed at the matter in following terms

“in the result, the appeal succeeds to the very limited extend that l have indicated in relation to the monthly salary and contractual benefits that are due to the appellant (now applicant).  Consequently the correct net monthly salary of US$1. 032,54 instead of USD$1 009, 00 and an additional 2% of the basic annual salary for professional and club membership allowance (i.e. 2 % of US$1009.00 X 12 are to be applied in recalculating the amounts payable to the appellant in respect of  backpay and benefits, cash in lieu of leave and damages for loss of employment l should add that the resultant adjustments are considerably smaller than would have been the case had the appellant succeeded in his wholly insupportable claim to pay his salary in the region of US$5 000 per month …

The matter was referred to the arbitrator for the requantification.  It is not clear to me under what circumstances.

The matter was eventually placed before Hon arbitrator Mudiwa who gave an interim arbitral award in July 2017.  This interim award only dealt with preliminary points raised by the applicant in those proceedings.  The points in limine raised were that;

The arbitrator should rule on whether an award by an arbitrator and or a decision of any court, even the or Supreme court can override the stated position in the first schedule (section 20 (1) paragraph 12 of the Agricultural and  Rural Development authority, Act and the Labour Act (Chapter 28:01)

The arbitral tribunal should rule on whether the arbitrator has the power to summon witnesses and call for documentary evidence requested by a party to a dispute of both parties in terms of the Labour Act.

The arbitral tribunal should rule that paragraphs D30, D31, D39, and E10 (b) and C and annexure C1, C2, C3 D1, D2,D3 , D4 of the respondents submissions dated of 9 May 2017 are struck off the record and that they will not be part of the current arbitral record and that they will not be part of the current arbitral requantification  proceedings.  The arbitral tribunal should rule whether the arbitrator has jurisdiction to handle debt collection proceedings and rei vindication proceedings involving debts and vehicle claims that have been prescribed.

The tribunal should rule on whether the respondent fraudulently misrepresented material facts; not only at previous arbitral proceedings but also at these current arbitral re-quantification proceedings, and whether the Labour Court or Supreme court orders obtained through respondents fraudulent mispresentation were still valid.

The arbitrator dismissed all the points in limine and was to proceed to requantify as ordered by the Supreme Court.

The applicant noted an appeal to the Labour Court against the arbitrator’s decision to dismiss the preliminary points.

The matter was heard by two Judges of the Labour Court who held that the appeal was improperly before the court and the matter was struck off the roll.  The applicant filed an application for leave to appeal the Labour Court Judgement.

When the matter was set down for the hearing of the application for leave to appeal, the applicant made an oral application for joinder of this application for leave to appeal and an application for referral to the constitutional court.

The application for joinder was dismissed.

The two matters were to be heard separately.

Application for referral

In justifying the application for referral of the issues he is seeking to refer to the constitutional court, the applicant told the court that he is approaching the court in terms of section 175 (4) as read with sections 56 (1), 62 (2), 65 (1), 68 (1), 68 (2), 69 (3), 71 (1), 85 (1),  165 (1) of the constitution of Zimbabwe Amendment (No 20) Act, 2013.

The applicant alleged that his fundamental rights had been infringed by the respondent’s management, the non-executive board members, the respondents, the arbitrators and the courts.  In view of the alleged breach, he sought that the dispute be referred to the constitutional court in terms of section 175 (4) of the constitution of Zimbabwe.

Section 175 (4) of the constitution provides that:

“ If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings , must refer  the matter to the constitutional court unless he or she considers the request is merely frivolously or vexatious”

Two requirements arise from the above provision one, the matter should arise in any proceedings before a court, and two, the request must not be frivolous or vexatious.

The request for referral was raised by the applicant after the court had already dealt with the substantive issues at the applicant’s appeal.   The issues were only raised before the court during the hearing of the application for leave to appeal the court’s decision to the Supreme Court.

The constitutional provision relied on by the applicant in bringing this application provides that

“if a constitutional matter arises in any proceedings before a court…….”

It is my considered view that the constitutional issue must be relevant or must relate to the issues before the court.

The issues that the applicant is seeking to raise are not directly relevant, or do not arise from the proceedings before the court.  No constitutional infrigment has been alleged in relation to the proceedings of the application for leave to appeal.  The applicant seeks to impunge all decisions that have been handed down and all awards that have ever been handed down in his case and they are not few considering that his dismissal was in May 2009 and to date the matter is still in the courts.  It has been to the Supreme Court, the then apex court of the land and back.

The challenges that are now being raised as constitutional issues were decided up to the Supreme Court level and cannot now be revisited and if they must, it cannot be this court that can revisit a decision of the Supreme Court.  The Labour Court has no such jurisdiction.

The issues also raised as constitutional issues must also be such that the Labour Court has jurisdiction over them.  The Labour Court has no powers of reviewing process that has been through the courts up to the Supreme Court.  This court can also not even review decisions of other Judges of the Labour Court which were handed down by the other Judges.  The court can not even review actions taken by management at the respondent workplace unless it is referred through the proper channels.

For example, one of the alleged constitutional breach alleged is;

“The most serious infringement of the applicant’s fundamental rights is the fact that the applicant was unlawfully dismissed without any misconduct charges being laid against him, let alone, without following appropriate procedure in termination of the applicant’s contract of employment …”

That this was a breach of the applicant’s contract was settled up to the Supreme Court level and he was awarded damages for the unfair loss of his employment.  We cannot keep on going back to the breaches which have already been settled by the courts.

There must be an end to litigation, once the Supreme Court settled the dispute that is the end of the road save for the quantification issues.

The applicant alleges that all the awards, all the Labour Court Judgements and the Supreme Court judgements were disabled.  If there was anything wrong with the Supreme Court judgement, it can not be brought back to the arbitrators and the Labour Court.  The issues raised, the manner in which they are being raised seem to lend credence, to the fact that the appellant is just being frivolous and vexatious.

In deciding whether the matter being raised is frivolous, the court has been referred to the case of Martin v Attorney – General and 1993 (1) ZLR 153 (S).  In that case, the court stated that,

‘’ In the context of S 24 (2), the work  “frivolous” connotes , in its ordinary and natural meaning the raising of a question marked by lack of seriousness, one inconsistent with logic and good sense, and clearly so  groundless and devoid of merit that a prudent person could not possibly expect to  obtain relief from it.  The word “vexatious” in contradistiction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party, in the full appreciation that it cannot succeed; it is not raised bona – fide, and a referral would be to permit the opponent to be vexed under a form of a legal process that was baseless.”

It is this court’s considered view, that in raising preliminary points which seek to challenge a decision of the Supreme court before the arbitrator and again before the Labour court, and also in seeking to reopen the dispute on the merits of the fairness of the dismissal when the Supreme court has already pronounced itself on that issue, the applicant’s conduct is indeed marked by a lack of seriousness and the conduct is inconsistant with logic and good sense. He surely cannot expect to succeed in getting the arbitrator and this court to review a decision by the Supreme Court.

The applicant cannot seriously expect the arbitrator and the Labour Court to reopen the dispute at this stage.  The applicant must be taken to fully appreciate that he cannot succeed.  He is merely being vexatious.

In the result, the application is held to be frivolous and vexatious and the following order is made

Order

The application is dismissed.

There is no order as to costs.

Titan Law Chambers - Legal Practitioners for Respondent.