Washington Nyakurwa and 5 Others v NMB Bank Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/207/25
HARARE, 15TH NOVEMVER, 2024
CASE NO. LC/H/996/24
AND 6TH JUNE, 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/207/25 HARARE, 15TH NOVEMVER, 2024		CASE NO. LC/H/996/24 AND 6TH JUNE, 2025

WASHINGTON NYAKURWA	1ST APPLICANT

MARTHA CHAPARADZA	2ND APPLICANT

MICHAEL KOMBONI	3RD APPLICANT

WONDERFUL MASHAVA	4TH APPLICANT

HILARY MUNESU KARONGA	5TH APPLICANT

COLLENCE CHIRUME	6TH APPLICANT

And

NMB BANK LIMITED	RESPONDENT

Before the Honourable Chivizhe J;

For the Applicants	- Ms Z. Majena (Legal Practitioner) For the Respondent	- Mr B. Peneti (Legal Practitioner)

CHIVIZHE J:

The application was placed before me as an application for quantification. The application is ‘purportedly’ made in terms of Section 89(1)a of the Labour Act as read with Rule 14 of the Labour Court Rules, 2017. There is a dispute between the parties as to the accuracy of the provision cited by Applicant. The issue will be determined below. Sufficient to note at this stage that the application is opposed by the Respondent.

1

BACKGROUND FACTS

The factual backgrounds are as follows,

The Applicants are all former managerial employees of the respondent. Their contracts without limit of time were unilaterally terminated by the employer in October 2020. Aggrieved by such conduct, the 1st Applicant along with the 2nd to 6th Applicants, approached a labour officer who dismissed their claim. An appeal was thereafter lodged to this honourable court under case LCH152/24 and on the 14th of May 2024 the court issued an order in their favour. On the 26th of June 2024, the Applicant’s counsel wrote to the respondent’s lawyers seeking their attitude toward the order as they had not challenged same. Despite numerous follow-up tele conversations and email correspondences, there was no response from the respondent. Over three months after obtaining the court order, the Respondent still had not complied by either effecting reinstatement or paying damages in lieu of reinstatement. It is on this basis that an application for quantification of damages was filed on the 19th of August 2024 under LCH875/24. However, upon receiving the Respondent’s Notice of Opposition, the Applicants counsel realised that they had made a patent error in citing the enabling provision for the application. The Applicants had cited s89(1)(d) instead of s89(1)(a) of the Labour Act [Chapter 28:01]. In order to avoid arguing on technicalities, the Applicants counsel withdrew the said application and filed the present application for quantification of damages.

POINTS IN LIMINE

The Respondent has taken two points in limine. The first point in limine is that the application is premised on the wrong provisions, on that basis the application amounts to a nullity, it ought therefore to be struck off with costs. The Respondent contends as the basis for its position that the application is purportedly made in Section 89(1) (a) of the Labour Act [Chapter 28:01] as read with Rule 14 of the Labour Court Rules, 2017. Section 89(1) (a) however deals with the general jurisdiction of the Labour Court. The proviso to Section 89(1) (a) also stipulates that the Labour Court has power to deal with applications made in terms of the Labour Act or any other enactment. Respondent contends that a party making an application before the Labour Court must stipulate, with accuracy, the exact provision empowering them to file that specific application. The provision

must either be in the Labour Act or any other act of Parliament. Respondent has referred to the case of Styllian and others vs Mubita and 25 others SC 7/17 where the Supreme Court stated as follows:

“Whenever the powers of the Labour Court come into question, it must always be borne in mind that it is a creature of statute (Dombodzvuku vs CMED (Pvt) Ltd SC 31/12, Nyahora vs CFI Holdings (Pvt) Ltd SC 81/14) and therefore can only exercise those powers that are given to it by the Labour Act its enabling statute.”

The Respondent has also referred to the case of National Railways of Zimbabwe vs Zimbabwe Railway Artisans Union and others SC 8/05 where it was clarified that;

“… before an application can be entertained by the Labour Court, it must be satisfied that such an application, is an application “in terms of this Act or any other enactment.” This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the Applicant seeks to bring nowhere in the Act is the power granted to the Labour Court to grant an order at the nature sought by the Respondent in the court a quo, nor have I been referred to any enactment authorizing the Labour Court to grant such an order.”

The Respondent on the basis of the authorities contends that the Applicants have improperly cited Section 89(1)a and Rule 14(1) of this court rules. Section 89(1)a as indicated is a general provision which also places a requirement for a specific provision to be cited in respect of a particular application. Rule 14(1) of the Labour Court Rules, 2017 simply deals with requirements in filing any application. It does not, according to Respondent, empower a party to approach this court for purposes of seeking quantification of damages. It is on this basis the Respondent prayer is for the application be struck off the roll with costs as it is clearly premised on the wrong provisions.

The second point in limine taken is that the 3rd Applicant’s Affidavit must be struck off. Respondent contends that it is common cause that a proper affidavit must be sworn to before a Commissioner of Oaths. It is also trite that the Stamp of the said Commissioner of Oaths must identify the Commissioner in such capacity. Respondent contends that in this case, from the Affidavit the deponent stipulates that same was signed in Harare before the said Commissioner of Oaths. The Commissioner of Oaths Stamp however identifies himself as practising in Mutare. On the basis of the papers therefore it is, according to Respondent, apparent that the act of signing by

the deponent and commissioning did not happen contemporaneous as required at law. It suggests the two were not at the same place, let alone the same city. There was thus no proper commissioning as contemplated by law. The Respondent’s prayer is that the 3rd Applicant’s affidavit, being fatally defective, must be struck off the roll.

The Applicants’ contrary position is that the application is properly before the court. The application is correctly premised on Section 89(1) (a) of the Labour Act as read with Rule 14(1) of the Labour Court Rules, 2017. The Applicants further contend that the application is also given credence by virtue of the order issued by this court in case number LC/H/152/24. The Applicants contend that the court order, which is still extant and therefore binding, allows the parties to apply to this court for relief. The Applicants have referred to the case authority of Mauritius and Another vs Verspak Holdings (Pvt) Limited and Another SC 2/2002 where the Supreme Court accepted the same argument in the following words:

“It is trite that once a court has made an order it binds all and sundry concerned. Everyone bound by the court order has a duty to obey the order as it is until it has been lawfully altered or discharged by the court of competent jurisdiction or statute. In ….”

Reference has also been made to Magauzi and Another vs Jekera SC 54/22 where the Supreme Court emphasised that a party or the parties cannot disregard a court order as they are bound by it. On this basis the Applicant submits that the first point in limine as taken lacks merit and ought to be dismissed.

With regards the second point in limine the Applicant submits that the requirements for an affidavit to be deemed properly commissioned is that the document ought to have been made under oath before a Commissioner of Oaths. The Applicants have referred to Prosecutor General vs Edmore Makarichi and The Registrar of Deeds N.O. The Registrar of Motor Vehicles N.O. HH 502:23 where the court stated as follows:

“An affidavit is a statement in documentary form, sworn to or before a Commissioner of Oaths. The deponent must make the oath and swear to the statement as well as sign it, before the commissioner of oaths. The latter must administer the oath and sign the affidavit at the same time and in the presence of the deponent. For a document to qualify as an affidavit the foregoing requirements must be met. Considering the significance of an affidavit and the office of a commissioner of oaths, it is vital that the document be such and the person commissions it be a

commissioner of nature. The person who signs the document must be identified as commissioner of oaths and there must be evidence that he or she is a Commissioner of oaths.”

The Applicants have also referred on the same point to Firstel Cellular (Pvt) Ltd vs NetOne Cellular (Pvt) Ltd 2015(1) ZLR 94(S) and 98C.

The Applicants contend that the most important issue the court has to regard is whether the Commissioner of Oaths who stamped is identified as such. In this case it has not been disputed by the Respondent that Kingstone Pukutayi Munjavi is a designated Commissioner of Oaths. His stamp clearly defined him as such. The Respondent has also not disputed that the 3rd Applicant signed the document before the said Commissioner of oaths. The place of signing as stated in the Affidavit was in Harare. On this basis the Applicants prayer is for the second point in limine to be dismissed as it is said to be meritless.

EVALUATION OF PRELIMINARY POINTS

The Respondent has taken issue with the application on the basis that it is not premised on the correct provisions of the Labour Act and rules. The contention is made that Section 89(1) and rule 14(1) relied upon by Applicants are inappropriate. The Applicant does not agree. It behoves the court to consider the two provisions. Section 89(1) (a) reads as follows;

The Labour Court shall exercise the following functions—(a)hearing and determining applications and appeals in terms of this Act or any other enactment; …

It is clear from a reading of the provision that it is the provision that defines the primary function of the Labour Court to hear and determine applications and appeals related to the Act and other enactments. The provision grants the court jurisdiction over cases arising under the Labour Act or other relevant legal frameworks. It is clear that apart from outlining the jurisdiction of the Labour Court, the provision does not go as far as providing for any specific application.

This requirement was laid down in National Railways of Zimbabwe vs Zimbabwe Railway Artisans Union and others SC 8/05 to which the court was aptly referred to by the Respondent. In that matter the Supreme Court clearly placed an obligation on a litigant approaching the Labour Court with any application to ensure the application is “in terms of this Act or any other enactment.”

Rule 14 also relied upon by the Applicant reads as follows:

14. (1) A court application shall be in Form LCl and shall be supported by one or more affidavits setting out the facts upon which the applicant relies together with the draft order.

The applicant shall deposit with the Sheriff an amount to be determined by the Sheriff as security for costs of the service of the notices of set down

The Registrar, upon receipt of the application and proof of such payment shall allocate a case number to the application and thereafter a date of hearing.

(a) The applicant shall serve copies of the application together with annexures thereof to the respondent within five days of their issuing out and within ten days thereafter, file with the Registrar proof of service in accordance with rule11.

(5) Except as otherwise provided in this rule, no affidavit which has not been served with a court application shall be used in support of the application unless it is otherwise ordered by the Court or a Judge.

The rule clearly provides for the requirement that have to be met by a litigant in filing an application. It certainly does not empower a party to approach the Labour Court for quantification of damages. The present application clearly ought to have been premised on a specific provision of the Labour Act and any other enactment. The argument by the Applicants that the application is also premised upon the order granted by this Court directing quantification of damages as an alternative to reinstatement clearly cannot fly in view of the principle as laid in National Railways of Zimbabwe vs Zimbabwe Railway Artisans Union and others SC 8/05 referred to supra. Whilst it is indeed correct as alluded by Applicants counsel that litigants have a duty to obey orders handed down by the court, in seeking to obey the order through an application for quantification, a party must still comply with the requirements at law to clearly indicate the basis upon which the application is being placed before the court. Needless to point out this requirement is aimed at assisting the Labour court in determining as a first issue whether or not the court has jurisdiction to entertain the application as placed before it.

It is clear that the first point in limine ought therefore to succeed. Having arrived at this conclusion it shall not be necessary to determine the second point in limine as it is hinged upon a properly filed application. The court has found that the present application being premised on

wrong provisions of the law is fatally defective. It ought therefore to be struck off the roll with costs as I hereby do.