Judge recuses himself in TM managers’case

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BULAWAYO High Court judge Justice Martin Makonese has recused himself from the case involving three TM Supermarket managers and their employer over a pay dispute.

SILAS NKALA
STAFF REPORTER

Justice Makonese initially ordered that TM Supermarket pays section managers Itayi Nkomo, Thembinkosi Nyathi and Nicholas Khumbula Tshili $2 390 each as back pay after the retail chain underpaid them as a sanction for refusing to work on Unity Day in 2009.

Justice Makonese recused himself last Thursday after retired Labour Court judge president Justice Selo Nare filed an appeal at the High Court challenging a ruling made in favour of the section managers by Bulawayo High Court judge Justice Maphios Cheda.

The judgment barred Justice Nare from adjudicating over the case alleging that he was an interested party as a TM Supermarket vegetable supplier.

Justice Nare had at one time dismissed the managers’ arbitration award by an independent arbitrator on October 23 2012.

TM management appealed against the award at the Labour Court and Justice Nare set aside the award on January 10 2013.

However, Justice Nare’s ruling was set aside by Justice Makonese’s judgment that registered the arbitrator’s award as an order of the High Court five days later.

TM Supermarket again applied to the High Court for a stay of execution on January 23 2013 and the application was granted by Justice Cheda and in the process upholding Justice Nare’s ruling and blocking the order by Justice Makonese that the managers be paid.

The section managers again made an application seeking an order nullifying Justice Cheda’s interim relief to TM as well as the nullification of an order against them granted by Justice Nare.

The managers claimed Justice Nare was an interested party saying they had established that he supplied the supermarket chain with vegetables.

They submitted that Justice Nare was biased against them because of the alleged commercial dealings with their employer and had some pecuniary interest in the outcome of the matter.

Justice Cheda set aside Justice Nare’s ruling with costs indicating that allegations raised by the managers were serious and that they should not be taken lightly.

The section managers produced cash sale vouchers which bore Justice Nare’s name as evidence and Justice Cheda said that was prima facie proof that he was engaged in some commercial activity with the supermarket chain.

Justice Nare then filed an application at the Bulawayo High Court challenging Justice Cheda’s ruling over his adjudication in the case.

The application was heard by Justice Makonese last Thursday.

Justice Nare indicated that Justice Cheda had erred in setting aside his ruling without calling him to respond to the allegations and sought a recession of Justice Cheda’s ruling against him.

In his application, Justice Nare claimed that he was not the one supplying the supermarket chain with vegetables, but his wife and only made deliveries when his wife was away in South Africa.

However, Justice Makonese had no kind words for his fellow judge saying Justice Nare’s application was wrongly directed as he as a High Court judge could not adjudicate over a ruling passed by another judge at the same level as him.

Justice Makonese said he was not even aware that the manager’s case, which he initially registered, was still in the same High Court.

“Why would you apply on behalf of the employer instead of the lawyers doing so?

“As far as I know, this case has since been dealt with here and I thought these people had since been long paid,” he said.

“You came to the wrong court. This case cannot remain revolving in the High Court.

“Judges of the same court are of the same level and I cannot nullify a ruling made by another judge of the same level with me.

“The case was supposed to go to the Supreme Court, not here. I recuse myself in this case.”