Queen Elizabeth School Development Association v Kephas Chamboko and 22 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/633/2013
HARARE, 23 OCTOBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	               JUDGMENT NO. LC/H/633/2013

HARARE, 23 OCTOBER 2013	    		   	        CASE NO. LC/H/498/13

AND 22 NOVEMBER 2013

In the matter between

QUEEN ELIZABETH SCHOOL DEVELOPMENT		Appellant

ASSOCIATION

And

KEPHIAS CHAMBOKO AND 22 OTHERS			Respondents

AND CULTURE

Before The Honourable P. Muzofa, Judge

For Appellant 	-	Mr Zhangazha (Legal Practitioner)

Respondent	s	-	Mr E.R. Samukange (Legal Practitioner)

MUZOFA J.;

The twenty three Respondents were employed by the Appellant in different capacities.  In 2002 the respondents were dismissed from employment by the Appellant.  There are no documents filed of record showing what the charges were but they were subsequently relieved of their duties.  Respondents immediately filed a complaint against Queen Elizabeth School for an unfair labour practice with a labour officer.  The matter was subsequently referred for arbitration. As indicated the record of the Arbitration process was not filed of record.  The Arbitrator noted that Queen Elizabeth School had raised a defence that it was not the Respondent’s employer but the proper employer was the School Development Association.  The Honourable Arbitrator then made the following finding “Respondent cannot avoid liability and is hereby found to be in breach of S.I. 371/85”.

An order was made that Queen Elizabeth School reinstate all the Respondents and damages awarded in the alternative.  That was in February 2003.  On September 5 2003 an order was certified by this Court against Queen Elizabeth School.  On the 7th of November 2003 an order issued by this Court was registered with the High Court against Queen Elizabeth School Development Association.  Thereafter it seems the Respondents attempted to enforce the High Court Order against the Appellants and failed.  In 2010 the Appellants applied for a review of the arbitral award before this Court.  This Court made a finding that the Respondents cannot execute a judgment against the Appellants and made the following order.

“Accordingly

The decision of the Arbitrator be and is hereby set aside.  Respondents should sue Applicants for wrongful dismissal first.

That there be no order as to costs.”

The Respondents noted an appeal against the said judgment to the Supreme Court.  The appeal was later withdrawn, which means the decision of this Court remained unchallenged.

In 2012 the Respondents approached a Labour Officer this time filing a claim against the Appellant.  The matter was subsequently referred for arbitration.  The award was issued on the 30th of May 2013, in the following terms: -

“1) The matter is not prescribed.

2)  K. Chamboko is not representing others.

3)  Claimants were unfairly dismissed.

4)  It is ordered that each of the Claimants be paid 18 months wages as damages in

lieu of reinstatement.  Such payment should be made within 30 days of receipt

of this award.

5)  Each party shall meet its costs”.

Aggrieved by the award by the Arbitrator the Appellant approached this Court on appeal.  After a careful reading of the grounds of appeal they can be summarised as raising the following issues:-

That the matter had  prescribed

Awarding damages to parties that were not before the Arbitrator.

That the Respondents were unlawfully dismissed.

Awarding damages of 18 months instead of six months.

Awarding damages at current rate of wages.

When the parties appeared before the Court a point in limine was raised by  counsel for the Respondent, that the grounds of appeal two to five donot raise points of law.  The law is very clear what a point of law is and this issue was extensively discussed in the case of Mbisva v Rainbow Tourism Group Ltd 2009 (2) ZLR (S).  A question of law is one that calls the Court to State what the law is, or a “question which the law itself has authoritatively answered to the exclusion of the right of the Court to answer the question as it thinks fit in accordance with what it considered to be the truth and justice of the matter”.

I propose to make a short analysis of the grounds of appeal.  I believe it is common cause that ground of appeal one is a question of law.  Ground of appeal two challenges the Arbitrator’s decision to award damages to parties that were not before him.  Put differently this is a question of representation since it was alleged some claimants were deceased.  I believe this is a question of law since the Court will have to decide what the law says where such circumstances arise

Ground of appeal three, whether the Respondents were unlawfully dismissed.  The real issue is whether the Appellant followed the precepts of the law when it dismissed the Respondents.  Clearly this is a question of law.

Ground of appeal four relates to the assessment of damages.  Where there is an unreasonable assessment of damages it amounts to a question of law see V.I.P. Sports Bar v Kanyoro SC 69/06.  This is also a ground that raises a point of law.

Ground of appeal five relates to the rates applicable in  the assessment of damages.  This is closely linked to ground of appeal four.  In my opinion this Court has to exercise its mind as to what the law says in respect of the applicable rate payable to the Respondents.  No factual issues will assist the Court except to apply the law to the established facts.  In my mind this ground of appeal also raises a question of law.

On that basis then the point in limine is dismissed.

Now I will turn to address the grounds of appeal in seriam.

Prescription

On behalf of the Appellant it was submitted that the matter had prescribed.  The Respondents became aware of a purported unfair labour practice in 2002 but instituted a claim in 2011.  This was a good nine years later.  It was also submitted that the Respondents pursued a wrong ‘employer’ and that did not interrupt prescription.  For the Respondent it was argued that the matter had not prescribed since it was on going before the Courts.  The second basis of argument was that the unfair labour practice was continuing.

Both counsel did not refer the Court to any cases to support their argument. I believe legal practitioners as officers of the Court are enjoined not to just make bare arguments but to support their arguments grounded on some legal basis.  This will assist the Court in ventilating the issues.

To my mind the issues before the Court are;

The effect of suing the wrong Respondent on prescription.

Whether dismissal either lawful or unlawful is a continuous unfair labour practice in terms of Section 94 (2) of the Labour Court Act [Chapter 28:01].

It is common cause that the Respondents were dismissed in 2002.  It is also common cause that the Respondents then instituted a claim against Queen Elizabeth School.  It is also common cause that the Respondents were employed by the Queen Elizabeth School Development Association.  The Respondents erroneously brought an action against a purportedly wrong employer.  They can only have themselves to blame for the wrong election see Van der Merwe v Protea Insurance Co Ltd 1982 (1) SA 770.  The established principle of law is that the Court cannot entertain a matter brought in excess of the prescriptive period, Watyoka v Zupco (Northern Division) 2006 (2) ZLR and City of Gweru v Munyari SC 15/05.

Can it be said the action against the Queen Elizabeth School was a valid action to interrupt the running of prescription?  Prescription continued to run from 2002 according to Section 94 (i) of the Labour Act. Section 7(3) of the prescription Act [Chapter 8:11] provides

“Any interruption in terms of subsection (2) shall lapse and the running of prescription shall not be deemed to have been interrupted if the person claiming ownership in the thing in question.

does not successfully prosecute his claim under the process in question to final judgment or

successfully prosecutes his claim under the process in question to final judgment, but abandons the judgment or the judgment is set aside”.

In casu the Respondents prosecuted their case until final judgment but they abandoned the judgment.  This is evident by their failure to enforce the High Court order.  In any event the arbitrator’s award was later brought before this Court and it was set aside.  The wording of Section 7 (3) of the Prescription Act is that such a process does not interrupt prescription.  The Respondents’ initial action was therefore a nullity, it means it never happened.  As stated in Magwebi v Seedco Ltd and Another 2000 (1) ZLR 93 citing MacFoy v United Africa Co Ltd [1961] 3 AII ER 1169 (PC) at 1172 I.

“if an act is void then it is in law a nullity.  It is not only bad, but incurably bad …  You cannot put something on nothing and expect it to stay there it will collapse”.

In this case the initial action by Respondents  if it is considered a nullity at law it means there was nothing.  The Respondents cannot ably rely on the nullity that it interrupted prescription.  There was nothing to interrupt prescription.

In the case of Van der Merwe (supra) the Court noted at page 773, of which I believe applies in this case.

“A plaintiff is, however, the dominus litis, and therefore entitled to select the forum in which to sue.  He would normally have ample time before prescription runs in which to investigate and consider the proper forum in which to do so.  If he conducts his case with sufficient diligence he is unlikely to find himself in the dilemma which might arise in choosing the wrong forum.  He would normally only have himself to blame if he makes a wrong election”.

In this case it was submitted that at the onset of the first claim against Queen Elizabeth School the then Respondent raised a defence that it was not the employer.  I must say the Arbitrator also contributed to the confusion for in his finding he noted that Queen Elizabeth School cannot avoid liability thereby encouraging the Respondents.  If Respondents were vigilant this issue would have been addressed before  the matter prescribed.

If the Courts were to find otherwise in relation to prescription there would be no finality to litigation.  This Court can do no better than express this position as clearly as was stated in the case of Chiwawa v Mutzuris & Others 2009 (1) ZLR 72 (H) that

“Any other meaning (i.e. regarding the legal effect of prescription) would lead to an absurd result, for there would be no finality to litigation and the limitation imposed by the statute would be rendered nugatory …”

Counsel for the Respondent argued that Queen Elizabeth School which was initially sued and the Appellant are one and the same.  The Court was urged to pierce the corporate veil and make a finding that they are just but one.  No meaningful submissions were made on this aspect.  The facts of the matter is Queen Elizabeth School has a separate legal persona from the Appellants.  This was not disputed.  In the case of Cape Pacific Ltd v Lubner Controlling Investments and Others 1995 (4) SA 791 (AD) the Court had occasion to define the concept of piercing the corporate veil. It means disregarding the dichotomy between a company and the natural person behind it (or in control of its activities) and attributing liability to that person, where he has misused or abused the principle of corporate personality.  I donot believe in this case there is need to even apply the concept.  Between the two personalities that is Queen Elizabeth School and the Appellant none have misused anything and tried to hide behind corporate personality.  I believe whatever conduct took place in 2002 leading to the dismissal of the Respondents, it is clear even today that it was solely Appellant’s conduct.  It was Respondent’s error to mix up the two personalities.  In any event if indeed the Respondent’s argument is valid, how is it that they failed to enforce judgment in the first action?  To me that sufficiently shows that the Appellant and Queen Elizabeth School are two distinct personalities.

It was also submitted on behalf of the Respondent that if Section 94 (1) of the Labour Act cannot save the Respondents then Section 94 (2) should rescue them.  Section 94 (2) provides

“Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a Labour Officer”.

The Court was not referred to any case authority to support the Respondents’ submission that dismissal is a continuing unfair labour practice.  As submitted on behalf of the Appellant dismissal is final and cannot be said to be continuing.  This is different from an employee on suspension or one who is still employed and the unfair labour practice continues for instance being under paid.

The matter had prescribed, the Respondents cannot benefit from their lack of diligence and there should be finality to ligitation.  The appeal on that basis alone should be allowed.  There is no need to proceed and deal with the merits of the case.

Counsel for the Appellant also made a request for costs to be granted on a Legal Practitioner and Client Scale.  This was made on the basis that the opposition was both frivolous and vexatious.  Costs on a higher scale can be awarded to a party where it is clear that the case is hopeless amounting to an abuse of Court process, or where there is an element of dishonesty,  see Chioza v Sawyer 1997 (2) ZLR (178  and Mudzimu v Chinhoyi Municipality and Another 1986 (1) ZLR 12 (H).  I donot believe Respondents’  conduct amount to any of the listed reasons for costs to be awarded on that scale.  The Respondents’ desire was to have their issue of the purported unlawful dismissal dealt with.  It was just by some stroke of misfortune that they did it wrongly.  It is the Court’s finding that there is no need to award costs as prayed for.

Accordingly the following order is made.

The appeal be and is hereby allowed.

Each party to bear its own costs.

Chinogwenya and Zhangazha – Appellant’s Legal Practitioners

Venturas and Samukange – Respondents’ Legal Practitioners