Joshua Marecha v Tredcor Zimbabwe (Private) Limited

### Preamble
THE LABOUR COURT OF ZIMBABWE GWERU, 05 MARCH 2024
JUDGMENT NO LC/H/112/24
CASE NO LC/H/912/23
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� THE LABOUR COURT OF ZIMBABWE GWERU, 05 MARCH 2024

AND 7 MARCH 2024

In the matter between:- JOSHUA MARECHA

Versus

TREDCOR ZIMBABWE (PRIVATE) LIMITED

Before the Honourable B. S. Chidziva, Judge

JUDGMENT NO LC/H/112/24

CASE NO LC/H/912/23

APPLICANT

RESPONDENT

Mr K Masarire	For Applicant (Legal Practitioner)

Mr B Mahuni	For	espondent (Legal Practitioner)

CHIDZIVAJ

This is an application for condonation for late :filing of an application for leave to appeal to Supreme Court against the decision of this court that was handed down on 21 September 2018.

BRIEF FACTS

The applicant was employed as a Finance Manager and Director for 18 years. He was charged with Misconduct and was dismissed from employment in February 2013. He appealed against the dismissal and Honourable arbitrator W T Pasipanodya ruled in his favour. The applicant then  appeared before Honourable TC Sengwe  for quantification of damages. The

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applicant was dissatisfied by the decision and he appealed to this court. This court then ordered as follows;

"(]) Grounds of appeal I, 2, 3 and 5 are allowed.

Ground of appeal 4 be and is hereby dismissed.

The Respondent to be awarded back pay for a period of I5 months calculated using basic salary of US$2 806, 19. The benefits to be claimed are car benefit, housing allowance, medical andfimeral policy and club subscriptions.

TheRespondent to be awarded back pay for a period of I5 months calculated using the basic salary ofRJ 5 000, 00.

SUBMISSIONS BY APPLICANT

The applicant submitted that he failed to register the judgment at the High Court because the damages were not quantified. The applicant submitted that the delay was inordinate and that he had prospects of success on appeal since the judgment was not sounding in money.

RESPONDENT'S ARGUMENTS

In response the Respondent raised a point in limine to the effect that there is an identical application already pending and therefore the present application is incompetent and ought to be stayed pending the disposal of the application in LC/H/599/23. The Respondent argued that alternatively the present application violates Section 124 of the Labour Act (Chapter 28:01) which provides for protection against multiplicity of proceedings.

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Mr Mahuni indicated that the Respondent was abandoning the other point in limine in which he had submitted that the applicant's lawyer had not formally assumed agency as provided for by law.

ISSUES FOR DETERMINATION

The issues for determination are;

Whether or not there is an identical application pending before the court.

Alternatively - whether there are multiple proceedings in this matter.

Whether or not there is an identical application pending before the court

It is common cause that applicant had filed case number LC/H/599/23 but it had been deemed abandoned by the Registrar Mr Masasire submitted that the matter had been abandoned and it was no longer before the court. It was further argued that case number LC/H/599/23 deals with unfair dismissal and the current case is dealing with quantification ofdamages, therefore these are two (2) different cases and one cannot withdraw an abandoned matter and cannot withdraw a matter which is not on the roll of the court.   The applicant therefore prayed for the dismissal of this point in limine.

In the case of Mhungu vs Mtindi 1986 (2) ZLR 171 Mc Nally JA had this to say

"The  defence  raised  by  this  allegation  is  the  defence  of  !is pendens,  sometimes known as lis alibi pendens Herb.stein and Van Win.sen in the Civil Practice of Superior Courts in South Africa Third ad at page 269 at seq say at page 269-270.

ff an action ;s already pending between parties and the plaintiff there brings another action against the same defendant on the same defendant on the same cause

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of action and in respect of the same subject matter, whether in the same or a different court; it is open to such defendant to take the objection of !is pendens that is, another action respecting the identical subject matter has already been instituted whereupon the court, in its discretion, may stay the second action pending the decision in thefirst action. "

The two actions were between the same parties although one case dealt with unfair dismissal and the other one dealt with quantification of damages arising from the unfair dismissal.

Paragraph 5 of Practice Direction 3/2013 states as follows;

"Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a judge may on application and for good cause shown reinstate the matter, on such terms as he deemsfit. "

In this case the applicant had filed an appeal with this court and it was dismissed on the basis that the matter was res judicata. The applicant then filed an application for condonation for late filing ofan application for leave to appeal to the Supreme Comi. The application was deemed abandoned for failure to file heads of arguments. The applicant has not resuscitated the abandoned matter and has also indicated that he is no longer interested in the matter. In the circumstances therefore case number LC/H/599/23 is no longer before this comi Applicant therefore does not have a pending matter before this court. In view of this this point in limine lacks merit.

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WHETHER THERE ARE MULTIPLE PROCEEDINGS IN THIS MATTER

The Respondent also submitted that the applicant had brought multiple proceedings m Contravention of Section 124 of the Labour Act (Chapter 28:01).

Section 124 of the Labour Act states as follows;

" Protection against multiple proceedings

Where any proceedings in respect of any matter have been instituted, completed or determined in terms of this Act; no person who is aware thereof shall institute or cause to be instituted or shall continue any other proceedings in respect of the same or any related matter,  without first advising the authority,  court or tribunal which is responsible for or concerned with the second-mentioned proceedings of fact of the earlier proceedings."

The applicant did not inform this court about the earlier proceedings. However the earlier proceedings were abandoned and they are no longer before this court.

In the circumstances I am of the view that the point in limine that was raised lacks merit and accordingly it is ordered that;

The points in Iimine be and are hereby dismissed.

The Registrar is directed to set down the main matter for hearing.

Respondent shall bear costs.

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Scanlen and Holderness Applicant's Legal Practitioners

. Masasire Law Chambers Respondent's Legal Practitioners

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