Jonathan Chibaya v British American Tobacco Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/347/2016
HARARE, 17 MARCH 2016 &
10 JUNE 2016
CASE NO LC/H/11/2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/347/2016

HARARE, 17 MARCH 2016 &				           CASE NO LC/H/11/2016

10 JUNE 2016

In the matter between

JONATHAN CHIBAYA							APPELLANT

And

BRITISH AMERICAN TOBACCO ZIMBABWE			RESPONDENT

Before the Honourable L M Murasi J

For the Appellant	Mr S Chikamhi (Legal Practitioner)

For the Respondent     Mr Chako Solomon (Legal Practitioner)

MURASI J:

This is an appeal against the quantification proceedings of the NEC Disciplinary Committee.

The brief facts of the matter are as follows:

The parties appeared before an NEC Disciplinary Committee who ruled in favour of the employee. I will use the terms employer and employee so that the roles of the parties are not confused. The employer appealed to the Labour Court and the matter was dealt with by CHIDZIVA J. The Learned Judge dismissed the appeal and upheld the decision of the arbitrator. The employer made an application for leave to appeal to the Supreme Court and this application was dismissed in a judgment dated 12 June 2015. The employer thereafter made an application to the Supreme Court for leave to appeal. The application was filed on 22 June 2015 under Case No SC 359/15. The Supreme Court is still to make a ruling on the application. The employee, armed with the decision of the Labour Court, approached the NEC Disciplinary Committee for quantification which was granted. During the proceedings before the NEC (DC), the employer raised the point in limine that the matter was pending before a court of competent jurisdiction. The NEC DC made an award, which the employee was not satisfied with and has approached this Court for relief.

It is the Court’s view that the crucial issue for determination is not the appeal placed before the Court but whether the NEC DC was entitled to proceed to determine the matter in the first place. The employer raised the issue of res judicata and lis pendens before the NEC DC. The question is how did the NEC DC deal with the issue? The employer made submissions that the whole matter had been placed before the Supreme Court in that the propriety of the decision of the Labour Court was being attacked. The argument was that if the NEC DC proceeded to make a determination and the Supreme Court came to a different conclusion from that of the Labour Court, what would, be the effect on the NEC DC’s decision?

The first determination by the NEC Disciplinary Committee in respect of the submissions made by the employer is dated 13 October 2015. It reads as follows:

“An application for leave to appeal to the Supreme Court does not suspend the decision that was made by the NEC GDC on 7 February 2015.”

What is evident is that no reasons for arriving at this decision are given. The same finding is made in the hearing of 4 December 2015. Again no reasons are given for the decision. In Heywood Investments (Private) Limited t/a GDC Hauliers v Pharaoh Zakeyo     S 32/13, GOWORA JA had this to say:

“It seems to me that the court a quo failed to appreciate the legal issue raised by the point in limine. It is incumbent upon a court before which an application is made to determine it. A court before which an interlocutory application has been made should not proceed to determine a matter on the merits without first determining the interlocutory application.”

It is clear that the NEC DC was not addressing the preliminary point raised by the employer. The employer’s argument was that the decision of the Labour Court was being appealed against. The decision of the Labour Court had upheld the decision of 7 February 2015 referred to by the NEC DC. This meant that the decision of NEC GDC was the same which the employer had placed before the Supreme Court for determination. The NEC DC did not give any reasons apart from stating that an application to the Supreme Court does not suspend the decision of the NEC GDC. It is evident that the body is or was not aware of the principle of stare decisis. I will not delve into the provisions governing this principle save to state that if the NEC DC had considered the preliminary point, it would have arrived at a different conclusion.

What is lis pendens? This plea is raised where there is litigation pending between the parties. In this case where one litigant brings another action against the same defendant on the same facts, the defendant may raise the plea that the matter is already pending before another court of competent jurisdiction. In such a case, the court has a discretion either to grant the plea or order the proceedings to go ahead. In casu, did the NEC DC have a discretion to proceed with the matter, given the facts of the case as outlined earlier in the judgment? The whole decision of the Labour Court and NEC GDC was to be determined by the Supreme Court. The matter is still pending before the Supreme Court. There exists a real possibility that the Supreme Court may arrive at a different decision from that arrived at by both the Labour Court and the NEC GDC. What then happens to the quantification proceedings? This is what the NEC DC was being called upon to make a determination upon when the plea of lis alibi pendens was raised by the employer. The NEC DC did not consider the plea on its merits and clearly erred in this regard. The plea should have been upheld and the NEC DC should have declined to entertain the application for quantification. It is therefore the Court’s view that the appeal which has been placed before this Court is improperly before the Court for the reasons already given.

In the result the Court makes the following order:

The appeal be and is hereby dismissed as it is improperly before the Court.

The quantification award by the NEC DC is hereby set aside and substituted with the following:

“(i)	The plea of lis pendens is hereby upheld.

(ii)	The claim for quantification be and is hereby stayed pending the finalisation of Case No SC 359/15”.

Each party to bear its own costs.

Mvere Chikamhi Marianadzo, appellant’s legal practitioners

Mawire J T & Associates, respondent’s legal practitioners