Peter Masuka v Crispen Mwete (2) Cold Storage Company Limited

### Preamble
Judgment No. SC 28/25
1
Chamber Application No. SC 50/25
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REPORTABLE   (28)

PETER    MASUKA

v

CRISPEN     MWETE     (2)     COLD     STORAGE     COMPANY     LIMITED

SUPREME COURT OF ZIMBABWE

HARARE: 12 FEBRUARY 2025 & 14 MARCH 2025

The applicant in person

Ms M. Zengeya, for the first and second respondents

IN CHAMBERS

MATHONSI JA:

The applicant, who has been a self-representing litigant since the inception of the labour dispute between the parties eleven years ago, was employed by the second respondent, a company under corporate rescue under the stewardship of the first respondent as its corporate rescue practitioner, as a branch accountant on 1 July 2012.

Since the dispute started about September 2014 when the employer sought to discipline him for a raft of acts of misconduct not long into his employment contract, the applicant has been relentlessly in and out of court.  What has brought him to court this time around is the judgment of the High Court handed down on 29 October 2024, which dismissed his application for contempt of court against the respondents.

Being out of time to note an appeal against that judgment, the applicant  filed the present application for condonation and leave to appeal out of time in terms of r 43 (3) of the Supreme Court Rules, 2018.  The application is opposed by both respondents who crave its dismissal with costs on the adverse scale for lack of merit.

THE FACTS

As already stated, the applicant was engaged by the second respondent as a branch accountant on 1 July 2012.  Not long thereafter, on 18 November 2013, he was suspended from employment to facilitate disciplinary proceedings against him on misconduct charges which proceedings did not yield anything meaningful.  On 5 December 2013 he was placed on forced leave which remained in force until 14 September 2014 when the applicant referred the dispute to a Labour Officer for conciliation.

Conciliation failed resulting in the matter being referred to arbitration in terms of s 93 of the Labour Act [Chapter 28:01] (the Act).

The terms of reference to arbitration, as captured by Arbitrator J. Dube, were;

“To determine:

Whether or not the employer is committing an unfair labour practice by placing the employee on forced leave.

Whether or not the claimant is owed outstanding salaries and if so determine the quantum.

Whether or not the employee is being discriminated against.

Determine the appropriate remedy.”

In the fullness of time, that is on 30 March 2016, the arbitrator rendered an award in favour  of the applicant ordering his reinstatement to his position as accountant for the Harare branch with effect from 4 November 2014 and that he be paid a sum of USD 13 529.00 as outstanding salary.  The award was later registered as an order of the High Court for enforcement purposes.

Meanwhile, by letter dated 5 August 2015, the employer “decided to exercise its rights under common law and provisions of .…. employment contract to terminate .… employment on notice.” Intense  and unending litigation ensued thereafter in both the High Court and the Labour Court as the parties sized each other up on the implications  of both the arbitral award and the termination on notice.

In the course of that litigation the applicant approached the High Court under case number HC 5416/18 seeking that the second respondent be declared in contempt of court for failing to reinstate him.  In Masuka v Cold Storage Company Ltd HH 116/19 Hungwe J, as he then was, found no merit in the application and promptly dismissed it with costs.

Notwithstanding that outcome, the applicant again approached the High Court under case number HCH 2919/24 seeking the relief that “all the respondents be declared to be in contempt of court for their alleged failure to obey two reinstatement and quantification orders.”  The application was unsuccessful as Siziba J, in a judgment delivered on 14 August 2024, declined jurisdiction on the basis that the Labour Court enjoyed exclusive jurisdiction to deal with the dispute.  The matter was struck off the roll with no order as to costs.

The applicant would have none of it.  He still filed another application for contempt of court against the present respondents under case number HCH 3649/24 which was heard this time by Mambara J.  By judgment delivered on 29 October 2024, the High Court dismissed the application with costs and advised the applicant to first pursue the resolution of the outstanding employment and quantification issues through the appropriate channels.

In arriving at that conclusion, the learned judge reasoned at para 5 of the judgment thus:

“The court finds that the application for contempt is premature and unwarranted.  The issues relating to the applicant’s employment status and the quantification of benefits must be resolved first, either through the Labour Court or appropriate forums.  The court cannot compel compliance with orders whose interpretation and applicability remains in dispute.”

Obviously unimpressed and digging in the applicant intends to take that decision on appeal before the Supreme Court.  He has listed four inelegantly drafted grounds of appeal, artillery fire he intends to unleash against the judgment a quo.  In order not to dilute that fire power, let me reproduce the intended grounds of appeal hereunder:

“1. The court a quo and the Honourable Judge of the court a quo grossly erred on the facts, rules, the law and the Constitution:-

by using an anonymous ‘discretion’ to override and abrogate respondent’s automatic barring in terms of rr 44 (1) (a) and 59 (9) of the High Court Rules, 2021, (“the Rules”) with the result that the respondents were improperly before the court a quo since their fatal defects were never cured in the absence of any condonation application.

by inventing a non-existent ‘employment dispute’ from the appellant’s thirteen (13) extant judgments and orders that self-evidenced both the full and final determinations of both labour disputes in the appellant’s favour such that the second respondent had irretrievably lost and abandoned both its arbitral/termination review and appeal rights giving rise to further partial enforcements at and by the same court a quo.

by dissenting, shirking and abdicating its statutory and constitutional arbitral jurisdictions reposed to it by the Labour Act [Chapter 28:01] (“the Labour Act”) and the Constitution of Zimbabwe (“the Constitution”) without any just cause whatsoever given both the express concessions made in the judgment a quo and the fact of previous partial enforcements of the appellant’s orders at and by the same court a quo.

by granting unspecified costs of suit to the respondents despite both the aforesaid statutory and constitutional arbitral jurisdictions and the express concessions respectively made under paras 2.1 to 2.3; 4.1 and 5 of the judgment a quo.”

As I pass, I mention that the proposed grounds of appeal are a strain to both the sight and the mind.  They certainly do not meet the threshold of r 44 (1) of this Court’s Rules.

THE APPLICATION

The law requires that the applicant should have filed his notice of appeal within fifteen days from the date the judgment was handed down.  Having missed the bus, the applicant has been forced to make this application for condonation and extension of time within which to appeal, never mind what he calls the application.

The explanation he has rendered for non-compliance with the rules is that he first erroneously made an application for leave to appeal in the High Court.  It took some time for him to realise that he was barking up the wrong tree.  When he did, he withdrew the ill-fated application on 26 November 2024.

The applicant stated that he then filed a similar application before this Court but at the hearing set for 28 January 2025, the application was struck off the roll for the reason that it was fatally defective.  Only then did he file the present application on 30 January 2025.  The applicant’s explanation for the delay is not contested by the respondents who only oppose the application on the basis that the intended appeal has no prospects of success.  Nothing more needs to be said about it for that reason.

On the prospects of success of the appeal he intends to lodge the applicant’s case is convoluted.  He has listed a lot of extraneous issues quite divorced from what he went to the High Court for, which is that the respondents should be held in contempt of court for their refusal or failure to comply with court orders.  What can be gleaned from his founding affidavit on the issue of contempt of court is that, according to him, he has about eleven court orders given in his favour for which he has derived no benefit.

Considering that he went to court for specific relief, I desired to know from the applicant at the hearing of the application, specifically which of the eleven court orders he alluded to should the respondents be held in contempt of.  The applicant identified two, namely the arbitral award directing that he be reinstated to his position with effect from 4 November 2014, which was registered as an order of the High Court in 2016.  The second order the applicant referred to was the quantification of his arrear salaries.

The applicant did not specify which court order this is especially given that there is a judgment of the Labour Court handed down on 17 October 2024 in respect of an application the applicant made in that court for quantification of damages.  Murasi J threw out the application for quantification.  In arriving at that outcome, the court remarked:

“The court, however requested the applicant to show the order which entitled him to make an application for quantification.  It was pointed out (to) him that there should be an order from a court of competent jurisdiction to show that the termination of his employment was unlawful and he was entitled to reinstatement or damages in lieu of such reinstatement.

The applicant took sometime referring to certain documents filed of record.  The documents that were shown to the Court were not evidence that there existed such an order.  This means that the applicant has been unable to justify his application for quantification.

The application is therefore improperly before the court.”

The respondents’ opposition to the application is straight forward.  It is that the applicant does not have any order of court which has been disobeyed by them for which to ground a claim for contempt of court.  According to the respondents, there is no court order reinstating the applicant to employment.

In the respondent’s view the applicant has persisted with the case completely ignoring that he ceased to be an employee of the second respondent when his contract was terminated on notice by letter of 5 August 2015.  He has never challenged that termination.  The respondents maintained that the applicant’s occupation of the employer’s house has no bearing on the relief of contempt of court which he sought.

THE LAW

The law relating to the grant or refusal of condonation can be regarded as settled in our jurisdiction.  To begin with a judge considering an application for condonation is engaged in the exercise of judicial discretion to be exercised judiciously having regard to the circumstances of the case.  Makarau JA, as she then was, put it succinctly in Bonnyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd & Anor SC 58/18 at p 3 when she remarked:

“Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non-compliance with the Rules.  Good and sufficient cause is established by considering cumulatively, the extent of the delay, the explanation for the delay and the strength of the applicant’s case on appeal, or the prospects of success. This is trite.”

See also United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A).

In light of the fact that these requirements are considered cumulatively, condonation will certainly be refused if, for instance, the intended appeal enjoys no prospects of success even where the other requirements have been satisfied.

Indeed, in whatever way one may formulate the test the same result is achieved, that is, it would be in order to refuse an application for condonation where the appeal has little or no prospects of success or where the appeal is frivolous.  Conversely, where there is substance in the argument, there is reasonable prospect of success.  See generally S v McGown 1995 (2) ZLR 81 (S) at 83 H-84A.

SYNTHESIS

I have said that the respondents have not contested the applicant’s explanation for the delay and the reasons for non-compliance, electing instead to base their contestation of the application on the crisp issue whether there are prospects of success on appeal.  The High Court determined the matter primarily on the basis that the status of the applicant’s employment remained unresolved and that the quantification of benefits was still pending.  It found that the application for contempt was premature and unwarranted in the circumstances.  In its view, those outstanding issues had to be resolved first either through the Labour Court or another appropriate forum.  Those were the factual findings of the court below.

It is settled that an appellate court will not interfere with factual findings made by a lower court unless they were grossly unreasonable in the sense that no reasonable tribunal, applying its mind to the same facts, would have arrived at the same conclusion or that the court had taken leave of its senses.  It is sometimes said that the appellate court will only interfere where the decision is so outrageous in its defiance of logic that no sensible person who has applied his or her mind to the question to be decided could have arrived at such decision or the decision was clearly wrong.  See ZNWA v Mwoyounotsva 2015 (1) ZLR 935 (S) at 940E – F, Metallon Gold Zimbabwe v Golden Million (Pvt) Ltd SC 12/15 at p 7.

According to Wikipedia contempt of court is the crime of being disobedient to or disrespectful towards a court of law and its officers.  The object of contempt proceedings is to punish disobedience so as to enforce an order of court and in particular, an order ad factum praestandum, that is, an order to do or abstain from doing a particular act.  It goes without saying that a court will not punish a person where no court order exists or where the order is contested.

In the present case, there is no court order for quantification of damages or arrear salaries.  Regarding the court order for reinstatement of the applicant to his former position as a branch accountant, it is apparent that while the applicant was pursuing arbitration for what he regarded as unfair labour practices involving his forced leave, the employer moved swiftly to terminate his employment on notice.  The act of termination has not been challenged and remains extant.  The question of its effect on the order of reinstatement is one which the courts still have to pronounce on.

DISPOSITION

Clearly therefore, the High Court cannot be faulted for coming to the conclusion that the application for contempt of court was premature.  The above conundrum needs to be resolved first.  It has not been shown that there is anything warranting interference with the High Court’s decision.  It means that the applicant’s proposed appeal enjoys no prospects of success whatsoever.

The respondents have asked for costs at the adverse scale in consideration of the “unwarranted financial burden” the applicant has thrust on them.  I do not agree that this is a case calling for such sanction.  The applicant is an unrepresented litigant who has brought what he regards as a valid application.  It may be meritless but certainly does not invite punitive costs.  Costs on the ordinary scale will meet the justice of the case.

In the result, it be and is hereby ordered that the application is dismissed with costs.

C. Nhemwa & Associates, 1st & 2nd respondent’s legal practitioners