Francisca Selina Manyoni v Zimtrade

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/112/21
HELD AT HARARE ON 7TH JUNE, 2021
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/112/21

HELD AT HARARE ON 7TH JUNE, 2021               CASE NO. LC/H/APP/241/20

AND 30TH JULY, 2021				       X REF: LC/H/APP/472/18

In the matter between:-

FRANCISCA SELINA MANYONI				Applicant

And

ZIMTRADE								Respondent

Before the Honourable Mhuri, J.

For Applicant		:	Mr. A. Masango (Legal Practitioner)

For Respondent 	:	Ms. R. Makumbe (Legal Practitioner)

MHURI J.

This is an application in terms of Section 92(F) of the Labour Act [Chapter 28:01] for leave to appeal to the Supreme Court against my judgment LC/H/94/19 in which I dismissed applicant’s application for condonation and extension of time within which to apply for leave to appeal to the Supreme Court against my other judgment LC/H/469/17 in which I struck off applicant’s appeal for being prematurely before the Court.

Applicant’s application for leave is basically on the basis that –

the Court grossly erred in dismissing her application on the basis of the doctrine of peremption when she was never called upon to address it, and respondent had not raised it and further that it was not applicable in her case.

There are two conflicting judgments from this court with regards her matter whose legal position needs to be determined by the Supreme Court.

In view of the above, it was applicant’s submission that she enjoyed good prospects of success on appeal.

In casu, does the applicant have good prospects of success on appeal in order for the Court to grant her the relief she is seeking?  Indeed it is a well-established legal position that a court should not mero motu make a finding on a matter not raised or argued before it,

PROTON BAKERY (PRIVATE) LIMITED

vs

MIKE TAKAENDESA  SC 126/2004

The questions that arise then are, did the Court err in raising the doctrine of peremption and did it make a finding on it without hearing parties.  If the answer to these is in the positive, the applicant has good prospects of success on appeal.

As submitted by respondent which position was not disputed by applicant, where a point is apparent on the papers but the parties proceed on a wrong perception of the law the court is entitled and obliged to raise the point of law mero motu and allow the parties to submit on it.

Reliance was made on the quotation of in the case of

CUSA  vs  TAO YING METAL INDUSTRIES 2009 (2) SA 204

to the effect that:

“……..These principles are, however subject to one qualification.  Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith.  Otherwise, the result would be a decision premised on an incorrect application of the law. ………..”

Reliance was also made on the case of –

MASHANGWA  vs  ASHBY   HH 526/18

in which CHITAPI J. relying on the CUSA vs TAO YING case (supra) stated

“A point of law can be raised by counsel for the parties or mero motu by the court even if it has not been dealt with in the papers.  The court should be able to raise the point of law because it is a court of law and a court of law has a duty to make a decision based on and informed by law…………”

A reading of the judgment LC/H/94/19 which applicant wants impugned, shows the steps applicant took and did in compliance with the court’s judgment LC/H/469/17.  She complied with the judgment though without success in all her endeavours.  Indeed respondent did not raise this in its response and main submissions.  The court however picked it up after observing what the applicant had done and questioned the applicant on it.  The applicant responded to the question posed by the court.  In as much as the doctrine was not specifically mentioned by name “peremption”, the principle was identifiable from the facts and sequence of events.  As respondent put it, just because the applicant did not recognise the doctrine when the question was put across to her, it does not mean the court did not give her the opportunity to address the same.

In view of the fact that the court can raise a point of law mero motu and that the applicant was given an opportunity to address on it through the questions asked, I find that this ground does not enjoy any prospect of success.

I now turn to the other ground that there are 2 conflicting judgments of this court namely, one by Chivizhe J and the other by Mhuri J. both relating to the applicability of section 8 of the Model Code, Statutory Instrument 232/2006, that a clear position should be pronounced by the Supreme Court.

Admittedly the two judgments:

MARANATHA FERROCHROME (PRIVATE) LIMITED

vs

ALLEN NANI & N. CHITAURO LC/H/520/14

by CHIVIZHE J and

FRANCISCA SELINA MANYONI  vs  ZIMTRADE  LC/H/469/17

by MHURI J. do not speak to each other.  They speak to two different interpretation of section 8 of the Model Code.

The Supreme Court however has clarified the position and given a clear interpretation of section 8.

See the case of

WONDER SIMUKA

vs

MONTANA CARSWELL MEATS (PRIVATE) LIMITED SC 44/20

This case establishes that an appeal from the decision of an appeals officer lies with the Labour Court and not the Labour Officer.  A Labour Officer has no jurisdiction to entertain a matter that has been determined already.

Since the Supreme Court has clarified the legal position, applicant’s reliance on the submission that there are 2 conflicting judgments which need to be clarified by the Supreme Court is no longer of any consequence and no longer relevant.  This ground can no longer be taken as a good basis for the appeal having prospects of success.

Despite the Supreme Court cases clarifying the position, I still find that the appellant enjoys no prospects of success because she acquiesced to the judgment LC/H/469/17.  Further, applicant’s reprobating and approbating in this case is not going to see finality to this case.  I am persuaded by respondent‘s submission that it is being put out of pocket by applicant’s conduct.  I agree with respondent’s submission that where a matter is brought back before the courts like what happened in casu, the courts are at liberty to apply the principle of finality to litigation, Applicant, acquiesced to the judgment only to come back after several unsuccessful attempts at the Labour Officer’s and after a long time and only after having unearthed another judgment whose position by then had not yet been confirmed by the Supreme Court.

Overally I find that applicant’s appeal does not enjoy any prospects of success on appeal.  It is therefore ordered that the application for leave to appeal to the Supreme Court against judgment LC/H/94/19 be and is hereby dismissed with costs.

MURONDA MALINGA  LEGAL PRACTICE – Applicant’s legal practitioners

DUBE, MANIKAI & HWACHA – Respondent’s practitioners