PG INDUSTRIES ZIMBABWE (PVT) LTD v BVEKERWA & ORS

SUPREME COURT, HARARE

[Labour Appeal SC 53-16]

October 17, 2014 and November 17, 2016

GWAUNZA, GOWORA AND PATEL JJA

Practice and procedure – Court – Labour Court – Court issuing an order without reasons – Validity of appeal in the absence of reasons – How such an appeal is dealt with.

The Labour Court granted a chamber application in favour of the respondents for the amendment of their notice of appeal. The application had been opposed. The court did not give reasons for its order. Subsequently, it granted leave to appeal to the Supreme Court.

Held, setting aside the judgment and remitting the matter to the court a quo, that a court is obliged to give reasons for its judgment to inform the parties of its reasons for the decision. A failure to give reasons is an irregularity which has the effect of vitiating the proceedings.

Held, further, that an appeal is not invalid merely on account of there being no reasons for the judgment or order appealed against.

Cases cited:

Botes and Another v Nedbank Ltd 1983 (3) SA 27 (A), followed

Chairman, Zimbabwe Electoral Commission & Anor v Bennett & Anor 2005 (2) ZLR 296 (S), followed

Muchapondwa v Madake & Ors 2006 (1) ZLR 196 (H), followed

S v Makawa & Anor 1991 (1) ZLR 142 (S), referred to

Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S), followed

Legislation considered:

Labour Act [Chapter 28:01]

Supreme Court Act [Chapter 7:13], s 25, 25 (2)

Book cited:

Cilliers AC, Loots C and Nel HC Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (4th edn, Juta & Co Ltd, Cape Town, 1997)

T Mpofu, for the appellant

T Katsuro, for the respondents

GOWORA JA:

On 1 November 2013, the Labour Court granted a chamber application in favour of the respondents for the amendment of their notice of appeal. This is an appeal against the order granting the application.

The facts

The appellant is a company duly registered in terms of the laws of Zimbabwe. The respondents were formerly employed by an entity known as PG Merchandising Limited trading as PG Timbers (hereinafter referred to as PG Timbers). It is not in dispute that the appellant was the holding company for a number of entities of which PG Timbers was one. PG Timbers has ceased to exist. The exact circumstances thereof are not before the court.

The respondents lost their employment with PG Timbers some time before its demise. It was alleged against the respondents that they had taken part in an illegal collective job action on 30 November 2011. The action was aimed at coercing their erstwhile employer into increasing their wages in line with the recommendations of the National Employment Council. The respondents alleged that after the collective job action they were denied entry into the premises. They applied for a show cause order under the Labour Act [Chapter 28:01] (“the Act”), which was dismissed by the relevant Minister.

In the meantime, the employer charged the respondents with contravening s 7.1.4 (viii) of the PG Industries (Zimbabwe) Code of Conduct (“the Code”), “for participating in an unconstitutional industrial action”. They were served with notices to attend disciplinary hearings before the disciplinary committee. The respondents deliberately boycotted the process. They were convicted in absentia. They were all dismissed from employment upon conviction.

Section 10.1 of the Code requires that an aggrieved employee seek leave to appeal internally within six working days of the date of the decision sought to be appealed against. The respondents only sought leave after a period of three months. Subsequent to the noting of the application for leave, they made an application for condonation for the late noting of the application for such leave. The appeals committee before whom the condonation was sought was chaired by Caroline Mapupu, the appellant’s Group Human Resources Executive.
On 22 May 2012, the committee handed down its decision dismissing the application for condonation.

The respondents were aggrieved by the dismissal of the application and noted an appeal with the Labour Court on 17 June 2012. The form LC 3 which constituted the notice of appeal cited the appellant as the respondent. Attached to the form LC 3 were grounds of appeal wherein the respondent was cited as PG Timbers.

The appellant raised a preliminary point in its notice of response. It pointed to the citation of two different respondents on the form LC 3 and the grounds of appeal. The manner of citation created confusion as to which respondent was being brought to the Labour Court on appeal. Consequently, the identity of the respondent as employer was critical in the determination of the appeal. The respondents were put on notice to properly identify the correct respondent to the appeal.

No action was taken by the respondents and on the date of hearing the appellant raised the preliminary point with the court. The respondents argued that the citation of different parties on the documents was a mere technicality which could not stop the court from delving into the merits of the dispute. On 2 August 2013 the court a quo handed down its judgment. It held that the respondents had made an error in citing the two entities in the manner they did. The court held that the error could be corrected and ordered the respondents to make an appropriate application for amendment of the notice of appeal and grounds thereof.

On 13 September 2013, the respondents filed a chamber application for amendment of the notice and grounds of appeal. In both documents the appellant was cited as the respondent. The record indicates that the application was served on the appellant’s legal practitioners. The application was opposed by the appellant. On 11 November 2013, the application was granted in chambers. There is no indication that the parties appeared before the learned judge before the order was granted. No reasons for the order were made available to the parties.

The appeal

The appellant was aggrieved and, with the leave of the court a quo, it has noted an appeal against the order of 11 November 2013. The ground upon which the appeal is premised is captured as follows:

“The court a quo erred by granting the amendment by the respondents, which amendment has the effect of making the appellant a party to the employment dispute in question yet the appellant has never at all material times been the respondents’ employer. Accordingly, the appellant has been wrongly cited as a party to the dispute.”

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