Tirabi Mhaka & 25 Others v Thomas Meikles Stores (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/458/2016
HARARE, 02 JUNE 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/458/2016

HARARE, 02 JUNE 2016				       	       CASE NO. LC/H/96/16

AND, 22 JULY 2016

In the matter between:-

TIRABI MHAKA & 25 OTHERS						Appellants

And

THOMAS MEIKLES STORES (PVT) LTD				Respondent

Before Honourable Murasi, J

For Appellants: Mr S Banda (Legal Practitioner)

For Respondent: Advocate T. Mpofu with Mr K. Ncube (Legal Practitioners)

MURASI J:

At the conclusion of the oral submissions the Court dismissed the appeal stating that the reasons would fallow.  The following are reasons.

Appellants were employed by the respondent.  Respondent informed the appellants that it intended to embark on a retrenchment exercise.  Discussions were held between appellants and the respondent culminating in the matter being referred to the Ministry of Labour for the retrenchment “package” to be approved.  Respondent received the deliberations of the Retrenchment Board but did not implement it.  The respondent proceeded to terminate the appellants’ contracts of employment in terms of section 12 (4) of the Labour Act. Appellants were irked by this turn of events and the matter ended up in arbitration.  The arbitrator found in favour of the respondent.  Appellants have appealed to this Court.

Appellants’ grounds of appeal are as follows:

The learned arbitrator erred and misdirected herself in not finding that the termination of appellants’ contracts of employment was a de facto retrenchment exercise disguised as termination on notice;

The learned arbitrator erred and misdirected herself in not finding that the termination on notice was in violation of the then section 12C as read with section 2 of the Labour Act [Chapter 28:01] and therefore consequently unlawful.

The learned arbitrator erred and misdirected herself in not consequently finding that the termination of the appellants’ contracts was unlawful.

Mr Banda for the appellants stated that it was apparent that the termination on notice was a veiled retrenchment exercise.  It was argued that it was not in dispute that respondent had initially attempted to retrench the appellants and that when respondent was seized with the determination of the Retrenchment Board, it opted to retain the appellants instead of paying the package. Mr Banda further submitted that respondent thereafter purported to act in terms of section 12 (4) of the Act.  It was stated that the arbitrator had therefore fallen into error in not finding this to be a de facto retrenchment. Mr Banda referred to the Chirasasa, PG Industries cases to bolster his argument.  He also conceded that an employer has the right either to retain an employee has the right either to retain an employee or pay the retrenchment package after the approval of the package by the Retrenchment Board.

Advocate Mpofu stated that the appeal was not properly before the Court because the respondent was not cited by the appellants.  He stated that the letters communicated to appellants by the respondent clearly showed that “Thomas Meikles Stores” was the trade name as the letter-head showed that the legal persona was Greatermans Stores (1979) Private Limited.  It was thus stated that the appeal therefore was invalid.  On the merits, Advocate Mpofu stated that the appellants did not seem to respect the judgments of the Court as the issues raised by appellants had already been decided upon by the Superior Courts.  These decisions of the superior courts were thus binding on the Court.  It was submitted that an employer had the right to terminate an employee’s contract in a no-fault situation and that this did not amount to a retrenchment exercise.  It was argued that retrenchment only occurs at the end of certain stage and was different from a termination under section 12 (4) of the Act.  It was added that the ZUVA case aptly dealt with the issues being raised by the appellants.  Advocate Mpofu further submitted, that P G Industries case was clearly distinguishable as a reason was given in that case for the termination of the employment contracts.

I will first deal with issue of the citation of the respondent.  Advocate Mpofu argued that appellants brought proceedings against a non-existent entity and therefore must fail.  In this respect he cited the JDM AGRO CONSUTS case.  In that case it was held that AS there were no persons answering to the names in the summons no amendments could be made and the citation was therefore a nullity.  Unfortunately, the appellants do not address this issue in the heads of argument filed by appellants’ Counsel.

It is correct that where proceedings are instituted against a non-existent entity, they are deemed to BE void ab initio and resultantly are a nullity.  Appellants cited Meikles Stores as the respondent instead of Greatermans Stores (1979) (Pvt) Limited.  Meikles Stores is the trade name of Greatermans Stores, the legal persona.  The whole essence of the legal persona principle in our law is that a company, once incorporated, becomes a fictitious person.  In casu, appellants used the trade name of the respondent.  Was that sufficient in light of the fact that appellants were informed of the fatality? MTSHIYA J had occasion to deal with a similar matter in Gloar Design Team vs Zinara 2014 (1) ZLR 808 (4).  In that case the plaintiff sought to amend the citation because the plaintiff and the cited company were one and the same.  The Learned Judge resorted to the High Court Rules and stated that it was permissible for the plaintiff to do so.  It is correct that courts, in deciding labour matters, should dispense with simple, cheap and industrial justice unhampered by legal jargon and technicalities.  The Court is of the view that in the absence of an application for an amendment by the appellants, it cannot state that the citation was in order.  Precedent has shown that courts invariably use their discretion to grant amendments to deserving cases, on application by the concerned party.  This is not the position in this instance. The appellants’ attention was drawn to this anomaly at an early stage but did nothing to rectify the issue.  Appellants’ lawyer did not even attempt to make an oral application. The citation was therefore a nullity.

Whilst the wrong citation of the respondent would have effectively dealt with the appeal, I however intend to consider the merits of the appeal.  The facts as outlined at the beginning of this judgment are the same as those in the Zuva case.  The only difference is that in the instant case, the Retrenchment Board had approved the retrenchment package.  Can it be said that the approval of the package enjoined the respondent to go the retrenchment route?  ZIYAMBI JA had occasion to deal with this legal point in Freda Rebecca Gold Mine Holdings Limited vs M. Nhliziyo & 180 Others S 16/13 where she had this to say at page 5 of the cyclostyled judgment.

“The Minister’s directive is not constitutive of the retrenchment nor does it terminate the contracts of employment of the proposed retrenches.  It merely sets the conditions upon which the employer, if still so minded, can proceed to retrench.  The contract is terminated by the employer when it proceeds with the retrenchment.”

The Learned Judge goes on to say at page 6 of the judgment:

“It should be noted that the Act places no obligation on an employer to retrench its employees.  Indeed, the clear intention of Parliament which emerges from sections 12C and 12D of the Act is that every effort should be made to avoid retrenchment whenever possible.”

In my view, the above cited passage succinctly addresses the point raised by Mr Banda that the respondent was enjoined to follow the retrenchment route or that the termination of the contracts were a disguised retrenchment.  Was the arbitrator wrong in making the finding that she did?  I do not think so as precedent clearly shows that the respondent was legally entitled to utilise section 12 (4) of the Act to terminate the appellants’ contracts of employment.

Advocate Mpofu briefly touched on the issue of precedent in that litigants must take cognisance of the existence of decided cases which are binding on courts and tribunals.  The issue of precedent is an important one.  It requires courts to follow the decision of coordinate ad higher courts in the judicial hierarchy.  Precedent ensures that there is certainty, coherence and predictability otherwise without that judgments would become susceptible to fanciful decisions.  It is in this light that the Court makes the observation that in certain cases, appeals are noted where the legal issues raised have already been determined by superior courts.  At times the court is encouraged or urged to arrive at a different conclusion when the facts are the same or nearly the same.  This should be discouraged.

In the result, for the aforestated reasons, the Court is of the view that the appeal is devoid of merit and ought to be dismissed.

The Court makes the following order:

The appeal be and is hereby dismissed.

The arbitral award of Honourable Mlilwana be and is hereby upheld.

Each party to meet its own costs.

J. Mambara & Partners, Appellants’ legal practitioners

Gill, Godlonton & Gerrans, respondent’s legal practitioners