Dhokotera v ZIMRA (301 of 2021) [2021] ZWHHC 301 (23 June 2021)

1 HH 301-21 HC 3056/20 JOHN DHOKOTERA versus ZIMBABWE REVENUE AUTHORITY HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 13 May 2021 & 23 June 2021 Application for an Interdict N Mashizha, for the applicant L Chipateni, for the respondent CHITAPI J: The applicant is employed by the respondent as a revenue officer. The dispute between the parties relates to the alleged non-payment of the applicant’s salary by the respondent. The basic facts of the dispute are common cause. The respondent as part of its staff development has a policy wherein employees are permitted to improve themselves academically or otherwise. To that end they may take study leave on conditions which are laid out in a document called “ZMIRA Staff Training and Development Policy”. The policy document provides for study leave of a maximum thirteen days in a calendar year. This type of leave caters mostly for employees who may require to sit for examinations. There is also what is coined study leave (scholarship). This type of leave is the one which grounded this application. It is provided for in s 21 of the policy document as follows– “21. Personal Study (a) ZIMRA employees are encouraged to develop themselves by engaging into personal study programmes of their choice which are relevant to their work. (b) Study leave may be granted to those who intend to undertake a study programme on condition that they are bonded as detailed below. Period of Absence Up to one year Up to two years Period of bonding for programme Funded by ZIMRA Self-funded One year 6 months Two years Twelve months Up to three years Three years Eighteen months HH 301-21 HC 3056/20 (c) Funding through a development partner (with ZIMRA) shall be deemed to be funding by ZIMRA (d) ZIMRA may reimburse its employees tuition fees on successful completion of a relevant course after which the study programme shall be deemed to have been funded by ZIMRA (e) ZIMRA employees on study leave will be entitled to: Full salary Half salary Nil salary First 12 months of absence Second 12 months of absence From the third 12 months of absence” The applicant applied for and was accepted to study for a PHD in Finance at the University of Johannesburg for a two-year duration commencing January 2020 to December 2021. Going by the study policy as enunciated hereinabove, the applicant would have been entitled to full salary in the first year of study and half salary in the second year of study. The applicant was granted permission by the respondent to undertake the PHD programme in accordance with clause 21 of the study policy. Approval having been granted, the effective study leave period was to commence on 1 January 2020. The applicant was therefore in terms of the study policy entitled to full salary from January 2020 to 31 December 2020 and thereafter to half salary from 1 January 2021 to 31 December 2021. The applicant was paid his salary until May 2020. He therefore instituted this application for an order suffering the respondent to act in accordance with clause 21€ of the study policy document and pay him in accordance thereof. The applicant also prayed for costs on the attorney and client scale. The respondent in its opposing affidavit and in so far as the affidavit is relevant to the determination I will make submitted that the applicant was not on scholarship which would justify his claim but on the occasional thirteen-day leave entitlement study leave. The respondent submitted that the applicant had not signed a bonding agreement which was a requirement to be fulfilled in terms of the study policy document. Indeed, clause 21(b) provides that study leave is granted on condition that an employee who intends to be granted such leave is bonded to the respondent so that the respondent as employer is assured of a return on its investment. The value return on investments is achieved by allowing the employee to take such leave but return to offer improved service to the employer after completing studies. The respondent submitted that the applicant had not followed the procedures for the grant of scholarship leave. The filed documents on the paper trial submitted by the applicant clearly show that the respondent was aware of the nature of the leave which the applicant had applied HH 301-21 HC 3056/20 for. The application letter by the applicant was clear on the nature of the leave sought and approvals granted were based on the applicants stated nature of study he was to engage in and its duration. At the hearing of the application, counsel for the respondent submitted that the respondent was willing to have the application disposed of by consent provided that the applicant signed a bonding agreement which he had not done. I gave parties time to discuss a mutual resolution of the dispute. By letter dated 17 May 2021 the applicant’s legal practitioner advised that the parties had resolved the issue of the completion and signing of the bonding agreement. The applicant’s counsel further submitted that the parties were not agreed on costs and that I should determine the issue of costs. Parties had argued the merits of the application including award of costs before I arrested judgment upon agreement of the parties that the matter could be resolved by agreement. The proper way then to dispose of the matter and as agreed to by the respondent’s counsel was to order the reinstatement of the applicant’s salary against the applicant signing the bonding agreement. The issue of costs remained outstanding and has necessitated this judgment. Mr Mashizha in support of applicants’ claim for attorney and client costs submitted that the costs were justified because the applicant, a public juristic persona unilaterally stopped the applicant’s salary without engaging him yet the applicant was still in the respondent’s employment. Counsel further submitted that the respondent did not respond to e-mails sent to it by the applicant and only paid outstanding salary accrued since June 2020, in April 2021. The respondents counsel submitted that each party should bear its own costs. Counsel submitted that as far as the punitive costs order sought by the applicant was concerned, there was no justification for such award of costs. Counsel submitted that the respondent did not act dishonestly nor with malice nor was the opposition filed a vexatious one. The respondent’s counsel submitted that the e-mails which were allegedly not responded to by the respondent were addressed to lower level employees who did not bring them to the attention of higher authority with decision making powers. Counsel submitted that if a costs order were to be made, it should be made against the applicant. The courts’ approach to determining the issue of costs is guided by the trite principle that the award of costs is in the discretion of the court. In this regard, note should be taken of s 69 (3) of the Constitution. The provisions of that section provides- “69 (3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.” HH 301-21 HC 3056/20 Costs awards should therefore be made in the context of promoting and fulfilling the right of access to court and other institutions established by law which perform the role of dispute resolution. A costs order is punitive in nature notwithstanding the scale or level of a costs award. The order is punitive because costs are invariably awarded against the losing party. It is often stated that costs follow the result. It is therefore arguable and a moot point which I will not interrogate in detail, whether costs awards do not impact on the individual’s right of access to court in that by invariably awarding cots to the successful party, a court is viewed as an institution which is sympathetic to the winners of a litigation as it punishes the loser. It is therefore proper that the award of costs is left to the court to determine in its discretion taking account of the circumstances of each individual case in which the issue of costs must be determined. The determination of costs should therefore not be based upon the sole consideration that the loser is mulcted with an order of costs. People may be discouraged to approach the court for fear of costs orders being made against them. The role of courts is paramount in promoting human rights and the interests of justice and safeguarding them. Courts must remain open and accessible institutions for every person to seek a determination of his or her rights and for the person sued to feel free to defend a claim made against him or her without fear of ending up insolvent on account of costs of litigation having to be paid by order of the very same courts which hold its doors open to every litigant. The rules of court however provide for what is considered a reasonable tariff of court costs as well as party and party costs. The default position must therefore be to award party and party costs where an award of costs is made. There must therefore be special cause established by a litigant who claims costs at a more punitive level that such level of costs is deserved or justified. In the case of Ferreira v Levin N. O and Others 1996 (2) SA 984 (CC) it is stated at p 1012 as follows- “The Supreme Court has over the years developed a flexible approach to costs which proceeds from two basic principles, the first being that the award of costs, unless expressly otherwise enacted is in the discretion of the court and the second that a successful party should, as a general rule, have his or her costs. Even the second principle is subject to a large number of exceptions where the successful part is deprived of his or her costs. Without attempting either comprehensiveness or complete analytical accuracy depriving successful parties of their costs can depend on circumstances such as for example; the conduct of the parties, the conduct of their legal representatives, whether a party achieves technical success only, the nature of the litigants and the nature of the proceedings.” HH 301-21 HC 3056/20 In the case of Mutunhu v Crest Poultry Group (Pvt) Ltd HH 399/17 MUSHORE J in making an order for costs on the legal practitioner scale as claimed by the applicant herein stated at p 22 of the cyclostyled judgment: “The defendant has sought an award of damages (sic) on a higher scale. It is settled law that the award costs on an attorney/client scale is likely to be granted if the conduct of the litigant from which such an award is sought amount to an abuse of the court process and that his actions thereby brought additional and unwarranted expenses to the other party. The leading case on the issue is Nel v Waterbuung Landbouwers Ko-operative Vereenining 1946 AD 54 where the court found that the party ought not to be put out of pocket for unnecessary proceedings. Also see Muduma v Municipality of Chinhoyi and Samuriwo 1986(1) ZLR 12 (HC) where REYNOLDS J found that one party was put through considerable inconvenience by virtue of the respondent’s unreasonable objections and behaviour.” The two authorities emphasize respectively that the award of costs is in the discretion of the court. Like every exercise of discretion, it must be judiciously exercised taking into account all relevant facts and always guided by the general principle that costs ordinarily follow the event unless circumstances of the case justify a deprivation of costs or award of punitive costs. Where costs are awarded they are generally awarded on the party and party scale. Secondly, an award of costs on the scale of attorney and client as sought by the applicant amounts to a special award which is punitive and as such special circumstances must be established by the party claiming costs on that scale to justify the award. In casu, Mr Mashizha justified the applicant’s prayer for the award of punitive costs on the fact that the respondent mistreated the applicant, its employee by holding on to payment of salary and also failed to respond to correspondence. Ms Chipetani for the respondent submitted that the communications were addressed to lower level employees instead of to the Head of the respondent. Ordinarily communications addressed to and for the attention of a juristic person are addressed to the person at the top of the organization, in this case, the Commissioner General, though it can be referenced for the attention of a named person. This was not the case in this case because the correspondence by the applicant was directed to persons whose designation was not mentioned but appear to have had some connection with salary payments. Under the circumstances, I cannot hold that the respondent be penalized for a failure to respond to correspondence and e-mails where it was notshown that the correspondence was directed to the head of the respondent. It also occurred to me that the facts of this matter clearly revealed a labour dispute regarding stoppage of salary payments. The matter in casu could have been resolved internally by the applicant escalating the dispute within labour dispute resolution mechanisms starting at the workplace. The applicant was not without recourse. On the other hand, I did not appreciate the fact that the respondent also adopted an aggressive attitude to HH 301-21 HC 3056/20 strenuously defend the claim without making a tender of payment of withheld salary on condition that the applicants completed all leave documents required of him. Had such tender made, the litigation may have been resolved earlier or partly so. In considering a costs award I also take account of the behaviour of the parties. They settled the dispute amicably save for costs. They therefore buried the hatchet in a continuing relationship of employer and employee. However, the applicant has succeeded in his claim because the payment of salary was withheld without his consent. The respondent did not make demand that the applicant should properly complete leave documentation. It took the position that the applicant had not taken proper leave or followed procedures. It ought to have simply properly directed the applicant to do the correct thing or taken steps to discipline him if he had committed a labour misconduct. Ordinarily labour disputes are not visited with an order of costs. I therefore take the view that both parties sized each other up and prepared to fight in court when they could easily have resolved the dispute herein internally. I have resolved to make an order which recognizes that there has been no winner or loser in this litigation but a mutual settlement of a clear labour dispute. DISPOSITION The main claim for payment of arrear withheld salary having been mutually resolved and the parties having requested for a determination on the issue of costs: It is determined that each party pays its own costs. Mashizha and Associates, applicant’s legal practitioners