Maxwell Sabilika v ZPC Kariba Football Club & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/430/2016
HARARE, 3 JUNE 2016
CASE NO LC/H/LRA/21/2016
22 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/430/2016

HARARE, 3 JUNE 2016 &					  CASE NO LC/H/LRA/21/2016

22 JULY 2016

In the matter between

MAXWELL SABILIKA (LABOUR OFFICER)			APPLICANT

Versus

ZPC KARIBA FOOTBALL CLUB				1ST RESPONDENT

And

DAVID PEDIYONI							2ND RESPONDENT

And

PATRICK DUBBS NHAMO					3RD RESPONDENT

Before the Honourable R F Manyangadze & L M Murasi JJ

The Applicant in Person

For the 1st Respondent	   Mr M Mandevere (Legal Practitioner)

For the 2nd & 3rd Respondents    Mr P Gomo (Legal Practitioner)

MURASI J:

These are proceedings held in terms of section 93 (5a) (b) of the Labour Act [Chapter 28:01].  In other words this is the “Return day” as prescribed in the Act.

The applicant has applied for confirmation of the proceedings held between ZPC Kariba Football Club (1st respondent) and the footballers (2nd and 3rd respondents). The applicant has also applied for costs of the application to be granted by the court. The applicant filed his affidavit and stated that he adhered to the submissions contained therein and had nothing more to add.

Mr Mandevere appeared on behalf of the employer. He submitted that he was raising two preliminary points for determination by the court. The first was that the entity cited in the application and in the hearing is not a legal persona. The second issue was that the order granted by the applicant was not registrable as required in terms of the Act, as amended.

I will deal with the first issue. Mr Mandewere argued that the correct employer was the Zimbabwe Power Company which owns ZPC Kariba Football Club. He stated that ZPC Kariba FC did not exist. A reading of the record shows that this was the first time that this issue was being raised. It was not raised before the applicant. It is correct that a point of law can be raised at any time. However, it is also correct and trite law that there are exceptions to this especially where there is prejudice to the other party. Mr Mandewere did not address this point as to whether prejudice would be occasioned to the other party where the point of law was raised at this belated stage. It is my view that prejudice will certainly be occasioned to the other parties to the proceedings as the various submissions and defences would have to be re-visited in order to address the issue. Was the employer incorrectly cited? The record shows that the contract of employment was between “ZPC Kariba Football Club” and the employees. The contract of employment does not in any way refer to the Zimbabwe Power Company as the employer. It does not state that ZPC Kariba FC was acting on behalf of Zimbabwe Power Company. The employees cited the employer’s name as reflected in the contract of employment. Were it that the citation was flowed, did it go to the extent that it became a legal nullity and thus void ab initio? WESSELS J had this to say in Van Vuuren v Braun & Summers 1910 TPD 950 at page 955:

“Now in order to bring a defendant legally into court a summons is required. In order that summons may be valid it must comply with the requirements of r 6. It must purport to be a summons, a mere request or letter to the effect that the defendant to kindly requesting to appear in court on a certain day is an invalid citation. Next the summons must specify the defendant. It is true that it will not be a flaw in the summons if the defendant is not described as accurately as he should be. If a man is baptised “George Smith” it is no defect to call him “John Smith” because the individual is pointed out with sufficient accuracy. But if there were no mention of the defendant at all the summons would be a wholly worthless document and could not be amended by inserting the defendant’s name in court.”

The argument by Mr Mandewere is grounded on the fact that the citation is not that of the employer. The citation as already stated is “ZPC Kariba FC”. Does the omission to cite Zimbabwe Power Company affect the identification of the employer? Is the 1st respondent not estopped from raising this issue after having signed a contract of employment with the employees which clearly showed that the employer was styled ZPC Kariba FC? It is my view that a litigant who does an act by which he/she indicates that there is an agreement between him/her and the other on the terms and conditions contained in the document, cannot afterwards turn back and take the other route, barring proof that such agreement was not entered freely and voluntarily or was subject to fraud on the part of the other litigant. There is no patent mistake in the citation of the employer and its identity. I am further fortified in making the above observations in that the court, in deciding labour matters, must dispense this with simple, cheap and industrial justice unhampered by legal jargon and technicalities.

The second issue that was raised by Mr Mandewere concerns the construction of the statute in question. Section 93 (5) (c) gives the Labour Officer the jurisdiction to preside over a dispute of right and may make an order:

“A. directing the employer or other party concerned to cease or rectify the infringement or threatened infringement as the case maybe, including the payment of moneys where appropriate.”

Mr Mandewere argued that the applicant’s order did not sound in money and therefore was not capable of registration. He clearly missed the point. The provisions of the section are unambiguous. The applicant made an order for reinstatement or in the alternative the payment of damages in lieu of such reinstatement. It is a truism that an award takes effect upon its grant. Its execution has no effect on whether it is binding or not. A party can choose to obey an award such that there would not be need for the award to be registered. Registration allows for execution. If the parties agree to reinstatement, then that is the end of the matter. If there is no agreement on reinstatement, then either party can approach the +applicant for quantification. The quantification proceedings become separate proceedings which would need to be subjected to the process of confirmation in terms of the Act.

Mr Mandewere’s preliminary points are therefore dismissed for the aforestated reasons.

Mr Gomo, who appeared for the employees supported the decision of the applicant and urged the court to dismiss the preliminary points raised by Mr Mandewere.

It should be noted that Mr Mandewere did not attack the findings of the applicant on the merits in any meaningful way. The court is of the view that the findings of the applicant cannot be faulted in the circumstances.

Before concluding, the court makes the observation that the applicant gave a period of fifteen days from the “Return day” as the period in which compliance should be made. The law clearly stipulates that it should be thirty days. I hope other Labour Officers familiarise themselves with that provision.

The court therefore makes the following order:

The ruling by Labour Officer, Maxwell Sabilika, in the matter of David Rediyoni and Patrick Dubbs Nhamo versus ZPC Kariba Football Club be and is hereby confirmed as an order of this court.

The 1st respondent be and is hereby directed to comply with the order, with effect from thirty days from the date of this order.

The 1st respondent be and is hereby directed to restitute the sum of five dollars (US$5-00) as costs through the Ministry of Public Service, Labour and Social Welfare with effect from thirty days from the date of this order.

MANYANGADZE J ……………………. I agree.

Mandewere & Partners, 1st respondent’s legal practitioners

Zvinavakobvu Law Chambers, 2nd & 3rd respondents’ legal practitioners