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REPORTABLE Z.L.R. (40)

Judgment No S.C. 44\2002

Civil Appeal No 387\2000

NORMAN GWAZE v NATIONAL RAILWAYS OF ZIMBABWE

SUPREME COURT OF ZIMBABWE

SANDURA JA, ZIYAMBI JA & GWAUNZA AJA

HARARE MAY 14 & JUNE 24, 2002

The appellant in person

D. Mehta, for the respondent

GWAUNZA AJA: This is an appeal against the judgment of the High Court, Harare, in which the appellant’s claim against the respondent for, inter alia, damages for wrongful dismissal, was dismissed. The trial court based its decision on two exceptions raised on behalf of the respondent, and thus did not hear argument in respect of, nor substantively consider the merits of, the dispute between the parties.

The two exceptions raised on behalf of the respondent were, firstly that the matter was res judicata and, secondly, that the appellant’s claim was prescribed. The learned trial judge, after finding in favour of the respondent in relation to the plea of res judicata, then dismissed the appellant’s claim, with no order of costs against him. He found it unnecessary, in view of his determination, to consider the exception relating to prescription.

Despite the lengthy and somewhat rambling fashion in which the appellant’s papers (obviously prepared by himself) were presented, the appellant is in reality submitting that the learned trial judge erred in finding that the matter was res judicata.

The facts of the matter are concisely set out in the judgment of the court a quo and are, briefly, as follows:

The appellant was employed by the respondent from 1978 to 1992. Between the 14^th and the 17^th of January 1992, some 4 000 workers of the respondent went on strike action. Following negotiations between the workers and the respondent, the latter sought to reinstate the workers who had gone on strike on condition that they signed re-engagement forms. The appellant, who was included among those workers considered to have gone on strike, refused to sign the forms with the result that the respondent sought to dismiss him. The appellant took the matter of what he considered to have been an unlawful dismissal, to the Labour Tribunal. He was seeking reinstatement. However, while the process of determining the matter was still underway the appellant tendered his resignation and demanded his terminal benefits. The respondent, which had initially not accepted the appellant’s resignation, eventually paid him all his terminal benefits on 13 April 1992. The Labour Relations Tribunal proceeded to hear the matter and handed down its determination on 15 June 1995.

On the 3^rd of July 1996 the appellant issued summons against the respondent claiming, “in terms of s 13(6) of the Labour Relations Act No 16/85”:

1. “gross back pay” of $112 000

2. damages for pain and suffering ($50 000)

3. a voluntary early retirement package which he asserted he would have been entitled to had he not been wrongfully dismissed ($88 000)

4. damages of $42 000 representing the value of lapsed insurance policies

5. damages for the loss of a house that he alleged he was forced of sell due to his inability to keep up with the payment of rentals and related charges ($75 000)

6. damages for emotional distress and contumelia that he asserted he suffered after his wife left him due to the destitution occasioned by the unlawful dismissal

7. damages for the loss of a Social Dimensions Fund Loan that he asserts he would have acquired had he offered himself for voluntary early retirement ($80 000)

8. damages for the loss of a second wife whom he asserts left him ($45 000), and

9. interest on all amounts claimed at the prescribed rate and costs of suit.

The parts of the Labour Tribunal’s determination of the appellant’s case, that are relevant to the matter before this Court read as follows¹:-

“… appellant cannot be said to have been involved in the unlawful collective job action. There is no proof to show that he was a striking employee. With that conclusion, appellant cannot be held to have terminated his contract of employment by not signing the re-engagement form …… His dismissal, therefore, was unlawful as on a balance of probabilities appellant did not go on strike.

Appellant should, therefore, be paid his full salary from January 1992 to the day he got his terminal benefits when he is deemed to have resigned. This is up to the 13^th of April, 1992.”

The Tribunal then gave its order in these words:-

“The order of the Tribunal is that;

1. the appeal succeeds

2. the respondent is ordered to pay the appellant his full salary from January of 1992 up to the 13^th of April 1992 when appellant is deemed to have terminated his contract of employment.”

In interpreting this order, the learned trial judge noted, correctly in my view, as follows:-

“It would appear to this court the Tribunal was saying, in effect, that:

1. the plaintiff’s dismissal from employment was unlawful, and

2. the plaintiff is deemed to have resigned from employment on the 13^th of April when he was paid his terminal benefits.”

It is evident that had the appellant not tendered his resignation, demanded and was paid, his terminal benefits, he would have been entitled to reinstatement and payment of any arrear salaries and benefits. Should such re-instatement not have been possible, the appellant would have been entitled to damages as an alternative thereto, in terms of Sec 96(1)(c) of the Act which provides as follows:-

“Without derogation from the generality of sections ninety three and ninety five, a determination made in terms of those sections may provide for -

…

3. reinstatement or employment in a job

Provided that any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment.”

In Gauntlet Security Services (Pvt) Ltd v Rodgers Leonard² GUBBAY CJ explained the effect of this section as follows:-

“By its very wording, as well as read in the context of the section as a whole, it is implicit that the alternative award of damages relates solely to the unlawful termination of the contract of employment. The damages so specified must arise ex contractu”.

By the same token, had the appellant not tendered his resignation, his claim for damages over and above the wages and benefits he received, would have been properly premised on Sec 13(6) of the Act. That is, provided such damages and on the authority of Gauntlet Security Services’ case supra, had arisen ex contractu. There is, in my view, and given the purpose of the Labour Relations Act as a whole, which is generally, to regulate the conditions of employment and related matters, no reason to suppose that other types of damages are envisaged under this section.

Section 13(6) of the Labour Relations Act [Chapter 28:01] reads as follows:-

“(6) Nothing contained in this section shall be construed as precluding a person referred to in subsection (1) or his representative or the executor of his estate, as the case may be, from claiming over and above any wages or benefits to which he or his estate is entitled in terms of subsection (1), damages for any prejudice or loss suffered in connection with such dismissal, termination, resignation incapacitation or death, as the case may be.”

Section 13 deals with the payment of wages and benefits upon the termination of an employee’s employment.

The Labour Tribunal ordered that the appellant be paid his full salary from the time he was unlawfully dismissed to the time that he was deemed to have resigned. Re-instatement or damages in lieu thereof were no longer an option for the appellant. Even had damages in lieu of re-instatement been payable, they would have been limited to compensation for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.³ Accordingly any claim by the appellant for damages ex contractu arising out of his unlawful dismissal was properly found by the court a quo to be res judicata.

The learned trial judge correctly outlined the requisites of a plea of res judicata as follows⁴:-

“The requisites of a plea of lis pendens are the same with regard to the person, cause of action and subject matter as those of a plea of res judicata which in turn are that the two actions must have been between the parties or their successors in title, concerning the same subject matter and founded on the same cause of complaint.”

The learned judge found that the issue of the plaintiff’s unlawful dismissal was canvassed and determined by the Labour Tribunal, which had issued a final and definitive judgment regarding the issue raised.

My view is that this finding is correct and sound, but only in so far as the part of the appellant’s claim that related to damages arising ex contractu is concerned. The correctness of this finding is reinforced in the following words, cited with approval by SANDURA JA in Banda and Others v Zisco (1999 (1) ZLR 340 at 342)⁵:-

“The previous judgment is only res judicata as regards matters between the parties which the judgment actually affects and when the plea is raised, it therefore becomes essential to determine whether the present claim is actually affected by the previous judgment.”

Applying this principle to the appellant’s claims, it is evident that the judgment of the Labour Tribunal affected the parts of the appellant’s claim relating to:

1. “gross” back pay of $112 000

2. voluntary early retirement package of $88 000, and

3. Social Dimension Fund loans that the appellant said he would have acquired had he offered himself for voluntary early retirement.

The issue of back pay was adequately dealt with by the Labour Tribunal when it ordered that the appellant be paid his arrear salaries for the duration of his unlawful dismissal. It cannot be resuscitated. By his action in voluntarily resigning from his job, the appellant forfeited any right he may have had to a voluntary early retirement. The same applies to the Social Dimension Fund loan which the appellant, correctly or not, claims was linked to voluntary early retirement.

However, a closer look at the breakdown of the appellant’s claims in his declaration shows that in addition to these claims the appellant was claiming other damages, not on the basis of his contract of employment but on the basis of the law of delict. He was, for instance, claiming damages for pain and suffering, the value of lapsed insurance policies, forced sale of his house because he could not keep up with certain payments like rent and rates and damages for “emotional distress and contumelia”.

It is an accepted principle of the law that the existence of a concurrent contractual liability is no bar to an action in delict, provided that the requirements of delictual liability are also satisfied⁶. The difference between these two actions is succinctly stated as follows by VAN DEN HEEVER JA in Trotman and Anor v Edwick⁷:-

“… a litigant who sues on contract sues to have his bargain or its equivalent in money or in money and kind. The litigant who sues on delict sues to recover the loss which he had sustained because of the wrongful conduct of another, in other words, that amount by which his patrimony has been diminished by such conduct should be restored to him.”

Whatever the merits or demerits of his claims and regardless of whether or not the appellant would be able to link these damages to his unlawful dismissal, the point remains that the appellant did not bring those delictual claims before the Labour Tribunal for determination, even had such Tribunal had the jurisdiction to deal with such matters (see above).

The question that then arises is, if in its determination of the appellant’s appeal against wrongful dismissal the Labour Tribunal did not address its mind to these delictual damages, can it now be said that the matter is res judicata?

For a plea of res judicata to succeed all the three requisites outlined above should be satisfied. This point was stressed by MULLER J in African Wanderers FC v Wanderers FC⁸ while restating the requisites of a plea of res judicata as follows:-

“There is nevertheless no room for this exception unless a suit which had been brought to an end is set in motion afresh between the same persons about the same matter and on the same cause for claiming, so that the exception falls away if one of these three things is lacking.” (my emphasis)

There is no doubt that the two actions were between the same parties, and that they were founded on the same cause of complaint, i.e. the wrongful dismissal of the appellant.

The other requisite, that the two actions concerned the same subject matter has not, in my view, been satisfied. The question that arises is, of course, what is meant by subject matter. The definition was given in Horowitz v Brock and Others⁹ as follows:-

“The requisites of a valid defence of res judicata in Roman Dutch law are that the matter adjudicated upon, on which the defence relies, must have been for the same cause, between the same parties and the same thing must have been demanded”. (my emphasis)

To illustrate what was meant by the same thing having been demanded, the learned judge went on to quote the following passage from African Farms and Townships Ltd v Cape Town Municipality¹⁰:-

“… that where a court has come to a decision on the merits of a question in issue, that question, at any rate as a causa petendi of the same thing between the same parties, cannot be resuscitated in subsequent proceedings.”

In casu, the appellant neither did, nor could he have (given s 96(1)(c) of the Labour Relations Act), made, the issue of the delictual damages in question, “a question in issue” at the Labour Relations Tribunal. That being the case, it cannot be said that in his claim in the court a quo, that he was attempting to “resuscitate” the same issue in subsequent proceedings. Nor can it be said that the Tribunal came to a decision on the merits of the same issue. The subject matter of the two actions was not the same.

I find accordingly that the issue of the delictual damages was not dealt with by the Labour Tribunal and was therefore being brought to court, ie the High Court, for the first time. In that respect that issue was not res judicata. The appellant was entitled, barring any other impediment like prescription, and whatever his prospects of success may have been, to a trial and a determination, on the merits, of his claim.

On the evidence before the court however, this determination in favour of the appellant becomes academic when consideration is given to the exception relating to prescription. Although the learned trial judge did not make a determination on this exception, I find it appropriate, in order to bring finality to this matter and not give the appellant the false hope that he may succeed on his claim, to consider and make a determination on the issue, on the strength of the evidence that is before the court.

It is not in dispute that the cause of action, that is the appellant’s unlawful dismissal, arose on the 22^nd of January, 1992. The appellant took the matter to the Ministry of Labour and eventually to the Labour Relations Tribunal. The Tribunal’s determination on the matter was handed down on the 25^th of March, 1995. The appellant issued summons in the present matter on the 3^rd of July, 1996. In view of this court’s finding on the plea of res judicata, the dispute concerning whether or not prescription was interrupted, whatever its merits, could only have applied to the parts of the appellant’s claim that are premised on his contract of employment. The parts of his claim that are based on delict, having been brought to court for the first time in the court a quo, were clearly instituted outside of the prescriptive period of three years. The plea of prescription in that respect therefore succeeds.

All in all the appeal must, therefore, fail. The respondent, which ordinarily would have been entitled to costs, has chosen to forego them. Therefore no order of costs shall be made against the appellant.

The appeal is accordingly dismissed.

SANDURA JA: I agree

ZIYAMBI JA: I agree

Webb Low & Barry, respondent's legal practitioners

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