Surface Wilmar (Private) Limited v Webster Zongoro and 17 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/143/2021
HARARE, 10 JUNE 2021
CASE NO LC/H/APP/916/16
2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/143/2021

HARARE,  10 JUNE 2021&			  CASE NO LC/H/APP/916/16

2021

In the matter between:-

SURFACE WILMAR (PRIVATE) LIMITED		APPLICANT

And

WEBSTER ZONGORO AND 17 OTHERS		RESPONDENT

Before the Honourable Kudya J

For the Applicant		F. Mahere (Legal Practitioner)

For the Respondent		E.E. Matika (Legal Practitioner)

KUDYA, J:

Applicant employer filed an application with this court which it styles “Application for leave to correct the record by reinstating missing information in Case No LC/H/298A/13”

Respondent employees are opposed to the grant of such application calling it a disguised application for leave to adduce further evidence on appeal.  It is only this application which is addressed by this judgment.

It is the applicant’s contention that when respondents and it appeared before arbitration its then legal practitioners filed submissions to demonstrate that the respondents had no legitimate expectation of being re-engaged by it.  It contends further that when the arbitral record was sent to the labour court such submissions could not be located.  Efforts to have same from their lawyers were in vain since the then lawyers’ proprietor passed on resulting in  closure of shop and shambles of records at the closed law firm.  It is in that light that it seeks to have included in the appeal record payrolls which it says will help demonstrate that no one was employed in the respondents’ stead hence no legitimate expectation arises from the matter.  It contends that in terms of rule  12(2)(b)

Labor Court rules it is within  its rights to seek to have the arbitral record corrected to include such payrolls.  It is the applicant’s fervent views that the absence of such payrolls in the appeals record will make it difficult to adjudicate on the legitimate expectation claim.  It is in that light that the applicant prays that the record be corrected by allowing that the payrolls be included in the place of what it calls the missing submissions on the issue.

In response the respondents argue that the application is misplaced.  In fact they contend that it is clearly a disguised application for leave to adduce further evidence on appeal.  They reason that if such evidence was available it should have been placed before the arbitrator for consideration in the matter.  They thus hasten to mention that it would not be far fetched for one to conclude that the evidence has been manufactured to build applicant’s case as the matter progresses which is not proper and militates against finality to litigation See Maheya v Independent African Church 2007(2) ZLR 319.

The respondents maintain that even if it were granted to be an application to adduce further evidence it would still not pass the test set   See S v Chimbari SC-59-06.  In the result the respondents pray that the application be dismissed for impropriety and for lack of merit.  A reading of rule  12 (2) Labour court rules indeed allows for flexibility in handling of labour matters.  It would however be wrong to stretch that rule to  mean that a party can bring any application it so wishes under the name of flexibility.  It is patently clear that there is no provision at law which says submissions and evidence can be interchanged or exchanged as what applicant says it is seeking to do to replace what it calls missing submissions from the record.  The court fails to appreciate how at all the payrolls can translate into the so called missing submissions.  It is clear that if there is anything missing which all parties have failed to explain as to what happened to the information then the fault lies where it fall.

No meaningful purpose would even be achieved by insisting on the arbitrator to explain to the court as to what was before  him or what was not.  This is so for the simple reason that arbitrators by their function deal with more than one case so it would be fool hardy to expect them to know all that happened in each single case.  The least that can be expected of the arbitrator is that he could refresh his memory from the notes or minutes of the proceedings  he would have put down in writing during the proceedings. If that is said to be unavailable or missing there can not be any way to remedy that unless proceedings are possibly dealt with denovo.

In the case at hand it has not been demonstrated why the payrolls were not tendered during arbitration and why they are only being tendered now.  It would thus not be unreasonable for the respondents to suspect that this is evidence  being built up as the case is progressing.

Such evidence therefore does not pass the test set out on (See Chimbari  (supra)  It is clear that the application is seeking to introduce evidence but has not demonstrated why such was not done earlier on. In that light the court is satisfied that  the application made by the applicant is ill founded and unmerited in that respect.  It would be prejudicial for the respondents to be expected to be speaking to a case which keeps changing its colour at every turn. In the ultimate the court is satisfied that no good case for the application to correct the record or for adducing of further evidence has been made out.  The application should accordingly fail.

IT IS ORDERED THAT

Application to correct the record being ill founded and being devoid of merit it be and is hereby dismissed with costs.

Gill Godlonton & Gerrans, Applicant’s Legal Practitioners

Munyaradzi Gwisai & Partners, Respondent’s Legal Practitioners