Faith Mupangani N.O. v Meikles Hospitality (Pvt) Ltd & Judith Dambudzo Kuster

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/79/2020
HARARE, 31 OCTOBER 2019
CASE NO. LC/H/LRA/62/19
AND 13 MARCH 2020
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/79/2020

HARARE, 31 OCTOBER 2019				CASE NO. LC/H/LRA/62/19

AND 13 MARCH 2020

In the matter between:

FAITH MUPANGANI N.O.							APPLICANT

versus

MEIKLES HOSPITALITY (PVT) LTD					1ST RESPONDENT

AND

JUDITH DAMBUDZO KUSTER						2ND RESPONDENT

Before The Honourable Makamure J,

Applicant				In person

For the 1st Respondent 		Mr K. Ncube (Legal Practitioner)

For the 2nd Respondent		Mr R. Zimudzi (Legal Practitioner)

MAKAMURE J:

This is an application for confirmation of a draft ruling made by a Labour Officer in terms of section 93 (5a) (a) and (b) of the Labour Act [Chapter 28:01] [The Act]. An order confirming the application was made. Reasons were to follow. These are they.

This is not the first time that parties have appeared before this court. In July 2018 the parties appeared. In judgment LC/H/505/18 my brother dealt with the matter. The matter had been brought before quantification had been done. The matter was therefore prematurely brought before this court. This is what the Honourable Judge said and I quote:

“Applicant in the main ordered reinstatement of the employee by the employer. It is trite that an employer, certainly one in the private sector, cannot be forced to reinstate an employee. So that aspect of the Applicant’s ruling is unenforceable. The alternative provided by the Applicant entailed qualification of damages in lieu of reinstatement. That can be done by agreement between employer and employee. Failing such agreement, Applicant was obliged to quantify the damages. The employer can certainly be forced to pay the quantified sum by writ of an appropriate court. Apparently the parties have not agreed on the quantum of damages. Neither has Applicant quantified the same. I conclude therefore that the application has (been) made prematurely. There is nothing in Applicant’s ruling that is enforceable at this stage.

I will therefore dismiss the application. Applicant’s ruling remains extant. The parties may proceed on the basis of its terms or otherwise as they are best advised.” (My underlining).

In Jacob Bethel Corporation v Emmanuel Chikuya SC 48/19 the Supreme Court held that once a judge of a court or of this court has made a decision, that decision remains extant. In the present case in view judgment LC/H/505/18, the present sitting therefore, the concern is that of quantification. If the draft order as pronounced by this court in the earlier judgment was wrong, it should have been appealed. So the parties through the applicant were simply obliged to quantify the damages as ordered by this court. The court will therefore not concern itself with the appropriateness or otherwise of the applicant’s ruling.

What this means is that the matter for consideration is whether or not during the quantification proceedings, the applicant considered the evidence. In the applicant’s draft ruling the impression is that the material evidence was considered. However, before this court, it was argued on behalf of the first respondent that the 2nd respondent did not give evidence; that it was her legal practitioner who only made submissions on her behalf. As such the submission was that the quantification cannot be confirmed in its present state. The submission was based on the assertion that the 2nd respondent ought to have been subjected to cross examination and that this was not done.

The submission that the 2nd respondent did not give evidence was vehemently denied. Mr Zimudzi who appeared for the 2nd respondent drew the court’s attention to certain aspects of the record which showed that it was in fact the 2nd respondent who gave the relevant information. Further the 2nd respondent was present and could have been cross examined. Such cross examination therefore ought to have been asked for then.

After assessing the submissions by the parties, it is clear that both respondents have always been legally represented. The 2nd respondent was present when parties appeared before the applicant. The first respondent’s legal practitioner ought to have protected their client’s rights then. They did not see the need to do so before the applicant, the issue can therefore not be raised before this court. It is inappropriate to do so.

The 1st respondent’s legal practitioner ought to have cross examined the 2nd respondent before the applicant. Failure to do so cannot be blamed on either the applicant or the 2nd respondent or indeed her legal practitioner. In Smith Chataira v ZESA SC 83/2001 the Supreme Court held that the lack of an opportunity to cross examine a witness does not render a hearing unfair.  It is therefore not always necessary that witnesses be cross examined. What is important is that justice between the parties be done.

I have considered the manner in which the quantification was done.  The relevant evidence was considered. In the case of Nyaguse v Mkwasine Estate (Pvt) Ltd 2 000 (1) ZLR 5715 @ 575 D the Supreme Court stated that:

“If the tribunal is forced to make an estimate, it must use the information to hand, and not simply pluck a figure from nowhere.”

I am satisfied that the applicant did not guess or estimate what was granted to the 2nd Respondent. He used the available information.  Further it is an established principle of our law that a finding on damages being a ruling on facts, is not to be interfered with unless it is unreasonable. (See Leopard Rock Hotel Co. (Pvt) Ltd v van Beek S 6/2000). Equally, appeal courts should be slow to interfere with the discretion of lower courts unless such discretion has been improperly exercised. (See Jayesh Shah v Kingdom Merchant Bank Limited SC 4/2017).

It is in view of the above that the following order was made.

(1).	 The application for confirmation of a draft ruling and order made by Labour Officer Faith Mupangani on 1 July 2019 be and is hereby granted, as amended.

(2).	1st Respondent pays the 2nd Respondent 36 months’ damages in lieu of reinstatement in the sum of US$90 720-00 and US$29 360-00 being the 80% for school fees for the period 2015 – 2018. Total payable by 1st Respondent to 2nd Respondent is US$120 080-00 payable at the interbank rate.

(3).	Payment be made within thirty (30) days of this order.

(4).	1st Respondent pays the costs of suit.

Gill, Godlonton & Gerrans, 1st Respondent’s Legal Practitioners

Zimhudzi & Associates, 2nd Respondent’s Legal Practitioners