Fatima Tahwa v Innscor Franchising

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/264/2014
HARARE, 31 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/264/2014

HARARE, 31 MARCH 2014 &			          CASE NO LC/H/207/2013

9 MAY 2014

In the matter between:

FATIMA TAHWA						APPLICANT

Versus

INNSCOR FRANCHISING				RESPONDENT

Before The Honourable L Kudya	:	Judge

For the Applicant		Miss L Shambamuto (Legal Practitioner)

For the Respondent	A Mugandiwa (Legal Practitioner)

KUDYA J:

The matter was set down as an application for quantification of damages. On the set down date both parties appeared. The respondent’s counsel submitted that the respondent was not opposed to the granting of the quantification as prayed for by the applicant. Consequently the court made an order by consent on the quantification matter.

When the parties were stood down the applicant indicated that she had forgotten to request the court to order that the respondent pay for the motor vehicle licence and insurance for the motor vehicle which she was using as part of her benefits more so now that the respondent had not opposed the grant of the quantification claim. In the applicant’s opinion therefore she was entitled to enjoy the benefits which she used to enjoy pending the conclusion of the main appeal in her matter.

The respondent in turn objected and challenged the relief sought by the applicant. It is only that aspect which is the subject of this ruling.

The respondent’s argument was twofold. Firstly it argued that it was in possession of a labour court order granted on 23 August 2013 which authorised it to repossess the motor vehicle in question pending conclusion of the appeal. To that extent it was the respondent’s argument that there was no basis at law to order the respondent to pay for the licence and motor vehicle insurance for a car which the court had ordered it to repossess pending conclusion of the main appeal.

Secondly the respondent argued that the application for the licence and insurance was improperly before the court as it did not meet all the requirements of the rules pertaining to how an application shall be made to court.

The respondent also observed that the order which was the subject of the quantification referred to monetary benefits and if it intended to refer specifically to the motor vehicle it would have said so clearly. It was thus the respondent’s considered view that if the interim award had to be ranked at the same level with the order of 23 August 2013 as they emanated from judges at the same level hence one order could not reign superior over the other. It submitted that a construction of the orders to mean that the interim order was meant primarily to address the monetary benefits to the exclusion of the motor vehicle is what accords with the dictates of justice in this matter.

In response to the respondent’s submission the appellant maintained that its application was well placed aside the fact that it was not made following strictly the formalities of applications as provided by the Labour Court Rules. She stated that she was prompted to make such an application following the consent by the respondent to have the quantification award granted by consent. In her view since the award made reference to “All” her benefits it was her considered view that such an award also encompassed the motor vehicle hence her request.

She argued further that following up on the respondent’s submission that both orders ranked equal, it was her view that the award making reference to “All” benefits must have been made in the full knowledge of the 23 August 2013 award and a construction holding that the award included the motor vehicle is what accords with justice in this matter. She argued further that the interim award effectively suspended the arbitral award thus retaining the status quo where the motor vehicle would be legally in her hands pending appeal. She noted also that since the respondent did not contest the quantification it followed that she had to get all her benefits pending appeal in sync with the interim award.

An assessment of submissions by both parties led the court to conclude regrettably that the scenario painted by these facts was caused unfortunately by a situation where two different courts got seized with issues on same matter and ended up giving orders which are potentially conflicting.

It was clear that either party had good and laudable arguments to move the court as it did. Faced with this quirk mire the court concluded that the only way out of it was for it to examine the motor vehicle policy so that such could guide it as to the extent of either party’s rights vis the motor vehicle. The advantage of that in the court’s view was that if the applicant’s rights were minimal then the court would lean in favour of denying her the relief she sought. If great, the opposite would take effect. A reading of the company vehicle policy which was tendered and is filed of record shows clearly that the motor vehicle was more of a tool of trade only and not necessarily a personal issue which could eventually devolve to the user. In that respect the court noted that there was therefore no just basis for ordering the respondent to fuel and licence the motor vehicle when it was not doing anything for the company taking into account that its insurance was primarily for the carrying out of its tasks. In instant case where the appeal has not been concluded it would be irregular for the court to order as requested by the applicant for reasons stated above. In the result the application fails.

IT IS ORDERED THAT:

Application for motor vehicle licence and insurance from the respondent being without merit it be and is hereby dismissed.

Each party to bear own costs.

Matsikidze & Mucheche, applicant’s legal practitioners

Wintertons, respondent’s legal practitioners