University of Zimbabwe v Vengai Mugabe & Another

### Preamble
Judgment No. CCZ 17/25
Constitutional Application No. CCZ 9/25
1
REPORTABLE (11)
UNIVERSITY OF ZIMBABWE
v
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UNIVERSITY OF ZIMBABWE

(1) VENGAI MUGABE

(2) JEALOUS ZHAKATA N.O.

CONSTITUTIONAL COURT OF ZIMBABWE
MAKARAU JCC, GOWORA JCC AND PATEL JCC
HARARE: 19 MAY, & 9 OCTOBER 2025

T. Zhuwarara, for the applicant
G. Madzoka, for the 1st respondent
No appearance for the 2nd respondent

GOWORA JCC:

[1] The applicant has filed this court application wherein he seeks from the Court leave for direct access to the Court in terms of s 167 (5) (a) of the Constitution of Zimbabwe, 2013 (the Constitution) as read with r 21 of the Constitutional Court Rules, 2016. If granted the leave it seeks herein, it is the intention of the applicant to institute a substantive application in terms of s 85 of the Constitution on the premise that the decision of the Supreme Court in case number SC 671/23 violated its right to equal protection of the law in terms of s 56 of the Constitution and, in the alternative, and the right to private property in terms of s 71 of the Constitution.


[2] The application is opposed by the first respondent. The second respondent has not filed any documents. Effectively, therefore, there is only one respondent.

**Factual Background**

[3] The respondent was employed by the applicant in terms of a fixed-term contract as a Bursar commencing on 1 July 2017. The contract was to endure for a fixed term of four years. Amongst other conditions, the contract provided for a monthly salary of USD $3,126 and a university house or, alternatively, a monthly housing allowance payable at a rate advised by the government, which at that time was USD $1,148.2. Clause 8 of the contract of employment, which is the basis upon which the applicant premises its claim of the violation of its rights in terms of s 71 of the Constitution was an issue of contention between the parties, specifically provided as follows:

“The employer shall provide a motor vehicle (model to be determined by the Government) funds permitting for both business and private use. At the end of the employee’s contract, the vehicle may be sold to the employee if it has clocked a minimum of 60 000 kilometers.”

[4] In July 2018, professional differences emerged between the respondent and the applicant's Vice-Chancellor. The disagreement between the two parties emanated from their respective understanding of the role of the respondent as the Bursar in the procurement and disposal of the applicant’s assets. The two were unable to reconcile their positions, culminating in a letter from the respondent to the Vice-Chancellor. The letter specifically read:

“It is apparent that our positions will not be reconciled and as such in order for me not to be a stumbling block to the progress of the University, I am requesting that we come to the table to discuss my immediate exit from this esteemed organization and to agree a mutually determined termination of my contract.”

[5] Following receipt of the above, the Vice-Chancellor indicated that the respondent had effectively resigned his position through that letter and prohibited him from coming to the University to work. The respondent protested the ban from attending at his place of employment based on the suggestion that he had resigned. It was to no avail. He was aggrieved by this conduct and, as a result, filed a complaint with the Ministry of Labour and Social Services alleging unfair dismissal.

[6] The matter found its way to a labour officer who attempted conciliation. When that failed, a hearing ensued before the labour officer, where the issue for determination was whether the letter from the respondent could properly construed in fact and in law to be a resignation.

[7] The labour officer found that the first respondent had been unfairly dismissed. He, therefore, issued a draft ruling in terms of which he awarded the respondent damages in lieu of reinstatement in the sum of USD $323,036. 69. The amount to be paid by the applicant, comprising salaries and other ancillary benefits, was based on the sum said to be due to the respondent for the unexpired period of the contract. Further to this, the labour officer ordered that the applicant deliver to the respondent the motor vehicle allocated to him in terms of the contract of employment, two laptops, as well as a desktop. In addition, the applicant was ordered to deliver 11 520 litres of fuel to the respondent.


[8] The draft ruling was, by operation of law, filed with the Labour Court for confirmation. The Labour Court duly confirmed the ruling as issued by the labour officer. I will address the efficacy of the draft ruling confirmed by the Labour Court later in the judgment.

Proceedings before the Supreme Court

[9] Aggrieved with this outcome, the applicant noted an appeal before the Supreme Court, (“the court a quo”). Before the court a quo, two issues fell for determination. The first, was whether the respondent, by his conduct, had given notice in terms of the contract of employment to resign. The second issue was whether the respondent, if unlawfully dismissed, was entitled to the quantum of damages awarded, both in terms of the law and the currency awarded by the labour officer.

[10] The applicant contended that the employment contract was terminated prior to the introduction of S.I. 33/2019, which provided that all liabilities, other than foreign liabilities owed by any person, had become liabilities in Zimbabwe Dollars after the effective date. It argued further that the hearing on the quantification of damages was heard before the effective date of S.I. 33/2019, whilst the judgment was made available after the effective date. To that end, the applicant contended that the order by the Labour Court was in contravention of the statutory instrument and stood to be set aside as being contrary to law.
 [11] The Supreme Court was not convinced that the interpretation by the applicant accorded with the law and the authorities on the issue. It, therefore, dismissed the appeal in its entirety and, consequent thereto, upheld the findings of the Labour Court. In the result, the applicant has approached this Court seeking direct access for the determination of the enshrined rights that it contends were violated by the court a quo following the dismissal of its appeal.

**The Application before the Court**

[12] The applicant avers that it approaches the Court in terms of s 167 (5) of the Constitution as read with r 21 of the rules of the Court. It avers that its cause of action arises from a judgment of the Supreme Court that dismissed an appeal by the applicant against a judgment of the Labour Court. It contends further that the order by the court a quo infringes two of its enshrined rights; namely the right to equal protection and benefit of the law and the right to property. It suggests that there are no disputes of fact and that this application raises questions of law only.

[13] The applicant seeks, in the substantive application, the following relief; firstly, a declaration that the applicant’s fundamental rights as set out above were infringed by the Supreme Court in SC 671/23; secondly, as appropriate relief, an order declaring the aforesaid Supreme Court judgment null and void and, consequent thereto, an order setting it aside; thirdly, as equitable relief under s 175 (6) of the Constitution, the remittal of the matter to the Supreme Court for determination of the alleged outstanding issues. However, the applicant fails to mention what the outstanding issues are.


[14] The applicant has argued that it is in the interests of justice that an order for direct access be granted in that it has prospects of success. The applicant further contends that in the process of dismissing the appeal, the Supreme Court infringed the constitutional rights highlighted above. The applicant avers that it has a right to the equal protection of the law and protection from compulsory acquisition of property.

[15] It argues that the net result of the court a quo’s decision is that it has been discriminated against. It argues that the law has been applied differently to it and this clearly infringes its constitutional right to equal protection under the law. According to it, the court order provided that the applicant should pay the amount awarded in US Dollars against the clear provisions of the said Statutory Instrument and contrary to many High Court and Supreme Court judgments. The applicant has averred that this matter can be resolved without the hearing of oral evidence.

[16] Turning to the issue of the motor vehicle, the applicant alleges that the order giving the applicant’s motor vehicle to the respondent without any payment for value was in clear violation of the contract of employment which stated that the vehicle might be sold to the respondent, which it was not, and that this was a clear act of expropriation of the applicant’s asset without compensation. Inevitably, it was contended, the judgment clearly infringes the applicant’s constitutional rights to own and protect its private property and is a clear infringement of s 71 of the Constitution.


[17] The applicant contends that the application has prospects of success on the merits, which it avers are very solid.

[18] The factual matrix of the dispute is not in contention. The relationship between the parties has terminated. The legal premise upon which it terminated was very much at the core of the proceedings before the labour officer, both at the conciliation stage and at the disputed hearing of the claim for unlawful dismissal and damages. It was also contested before the Labour Court and on appeal in the court a quo.

[19] The respondent denies that he resigned. The respondent avers that the applicant’s counsel had, before the court a quo, conceded that the finding of unlawful dismissal could not be faulted and, therefore, it should not be raised before this Court as a basis for alleging that the decision of the court a quo had violated a fundamental right. In my view, nothing turns on whether or not the labour officer was correct to find that the respondent had been unlawfully dismissed. There are no constitutional issues attaching to that finding.

[20] In this dispute, the issue of the termination of the employment relationship, given the manner in which the applicant has contended that the order of the court a quo was a violation of its entrenched rights as detailed above need not detain the Court. In any event, there are no constitutional issues for determination arising from the termination itself.


[21] The respondent has denied that the court a quo is guilty of the infringements that the applicant suggests it committed. Rather, the respondent contends that the applicant, unhappy with the result on the substance, has launched these proceedings in a futile effort to have the decision a quo set aside. According to the respondent, this application is nothing more than a disguised appeal, which, given its constitutional mandate, this Court is disabled from considering or determining.

[22] Coming to the question of the effect of S.I. 33/19 on the amount or level of damages that the Labour Court awarded him, the respondent again contends that the applicant’s counsel before the court a quo had made certain concessions and that the concessions so made must militate against the applicant raising the issue again before this Court citing alleged violations of a right. To this end, he contends that before the court a quo, counsel for the applicant had conceded that the third ground of appeal relating to the order that payment be made in United States Dollars lacked merit and, therefore, could not be persisted with.

[23] The last issue raised by the respondent pertains to the allegation by the applicant that the court a quo confirmed an award of damages in lieu of reinstatement when no evidence had been adduced in relation to the damages themselves. The respondent contended that the applicant had failed to demonstrate that the quantification was not supported by evidence both in the Labour Court and the court a quo. He contended further that the applicant had not demonstrated in its founding affidavit any irrationality on the part of the
 Supreme Court that could sustain a finding of allegations of violation of fundamental rights.

[24] As regards the amount awarded as damages, the respondent contends that what the applicant is attacking is the substance of the judgment, and as a result, the Court ought to find that it has filed an application that seeks to appeal the judgment of the Supreme Court. He disputes the contention that no evidence was led on the quantum of damages awarded to him and suggests that the fact that the applicant contests these does not and cannot found a claim for a violation of its constitutional rights as alleged.

[25] The respondent contends that the application is frivolous and vexatious and that the motive behind it is to simply delay the resolution of the dispute. He contends further that the applicant has not demonstrated to any degree that there is a possibility that the Court will interfere with any material portion of the judgment. His expressed view is that the application does not enjoy prospects of success. He, therefore, prays for its dismissal.

**Applicant’s Submissions Before This Court**

[26] Mr Zhuwarara, counsel for the applicant submitted that the result of the judgment of the court a quo is that the applicant is faced with a non-decision. It is contended that the Supreme Court rendered an order in circumstances where there was no indication that it had adjudicated the issues before it. He suggested that this is one of those rare but serious instances justifying that this Court intervene to vindicate the rule of law and the constitutional duty imposed by law on the courts to provide judicial protection. In the circumstances, he argued, leave to approach the Court directly ought to be granted.

[28] In so far as the existence on the papers of a constitutional matter sufficient to trigger the jurisdiction of the Court, he contended that this Court held in *Meda v Sibanda & Ors* 2016 (2) ZLR 232 (CC) at 236B, that the obligation upon a litigant approaching the Court in terms of s 85(1) is not to prove a violation of a right at the outset, but merely to allege it credibly. Once such an allegation is made, the Court is seized with the matter.

[29] Therefore, counsel argued that the Supreme Court’s judgment resulted in the arbitrary deprivation of property contrary to s 71 of the Constitution, as well as unequal treatment in the application of monetary and contractual law contrary to s 56(1).

[30] He contended that the applicant’s employment contract made it clear that the motor vehicle availed to the respondent under the contract of employment could only be sold to the employee upon the fulfillment of certain conditions. Despite these clear, unambiguous terms, the Labour Court awarded the respondent the vehicle gratuitously. The court *a quo* had, despite the clear and unequivocal terms in the said contract, confirmed the award.

[31] Further to the above, contends counsel, the applicant was held liable to pay substantial sums in United States Dollars, despite the settled operation of SI 33/19 and case law confirming the convertibility of pre-2019 obligations to RTGS or the equivalent in local currency.


[32] Thus, counsel argued, the applicant had not only alleged but also substantiated the infringement of constitutional rights. Therefore, the respondent’s attempt to reduce this to a labour dispute ignores the constitutional overlay that permeates every aspect of the judgment below.

**Right to equality and equal protection and benefit of the law**

[33] According to counsel, the applicant took issue with the manner in which the respondent seeks to diminish the applicability of s 56 (1) of the Constitution in asserting that the applicant was simply treated like any other litigant and further to the above, that no discrimination or unequal treatment occurred from the decision of the court a quo. He contended that the test was established by this Court in *Nkomo v Minister of Local Government & Ors* 2016 (1) ZLR 1107 (CC), wherein the Court stated that a violation of s 56 (1) occurs where:

> “… certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same, or similar, position as himself have been treated in a manner different…”

[34] Counsel went on to suggest that similarly situated litigants—including parastatals and public institutions—have had USD liabilities converted to RTGS in light of SI 33/19, as was held in *Manica Zimbabwe Ltd v Windmill (Pvt) Ltd* HH 705/20 & *Zizhou v Taxing Officer SC* 7/20. In *casu*, the applicant, cutting a lonesome figure, is saddled with the full burden of an award denominated in United States Dollars which obligation arose before the effective date. Thus, counsel further argued, the law was applied differently by the Supreme Court, without legal justification, and without reasons.

[35] Counsel contends that this is the very essence of unequal treatment, and, further that the respondent had offered no explanation as to why the applicant’s matter was handled with such deviation from judicial norms. Further to the above, so the argument went, the Supreme Court had clearly eventuated a determination that discriminates against the applicant despite the fact that similarly placed litigants as itself had their obligations converted by operation of law.

Right to property

[36] The applicant contends that the motor vehicle was not a benefit lawfully accruing to the respondent upon termination and that this argument, as contended by the respondent, is both factually and legally unsustainable. He contends that Clause 8 of the contract is unambiguous. The vehicle was to be provided to the respondent if funds permitted, and thereafter, could only be sold to the employee if it had clocked 60,000 km. No evidence was placed before the Labour Court or the Supreme Court that these conditions were met. It was argued that the vehicle was neither sold nor properly valued, but instead, was simply given to the respondent, translating to a transfer of public property without compensation and absent a lawful basis to do so. It was contended that this decision was offensive regard being had to the Constitution and the norms it enshrines when it comes to property.


[37] Thus, it is argued, the order of the Supreme Court constitutes a deprivation of property under s 71. The Court was referred to *Greatermans Stores (Pvt) Ltd v Minister of Labour & Anor* 2018 (1) ZLR 335 at 360, where this Court drew a clear line between deprivation and expropriation in the following terms:

> "Where the compulsory deprivation involves the acquisition or taking away or dispossession of private property, there is expropriation... Expropriation requires the payment of a fair and adequate compensation."

[38] Therefore, it was contended, the deprivation of the applicant’s vehicle effected without compensation, without contractual entitlement, and in the absence of any lawful authority was not a speculative allegation but an incontrovertible fact. It was argued that the contract expressly required conditions to be met before a vehicle could be transferred, including the accrual of minimum mileage and the availability of funds. None of these conditions were satisfied to justify the order issued by the Supreme Court, yet the vehicle was awarded outright. This was not a benefit conferred by law or agreement; it was a unilateral deprivation of property. The deprivation was neither sanctioned by a law of general application nor accompanied by any compensation, as required by s 71 (3) of the Constitution. It is contended that the Supreme Court ought not to have lawfully overlooked this violation as it strikes at the heart of the rule of law, the sanctity of contract, and the fundamental obligation of Courts to safeguard constitutionally protected rights.

**Prospects of Success and Interests of Justice**


[39] Counsel contended that the assertion by the respondent that the application does not enjoy prospects of success is without merit. He suggested that the law requires an applicant to set out on why it was in the interests of justice to allow direct access. According to counsel the position is settled on what an applicant must allege in the affidavit and in this respect he made reference to *Liberal Democrats v President & Ors CC-7-18*. In *casu*, counsel contended, the applicant has set out sufficient facts in the affidavit why it was in the interests of justice that leave for direct access be granted. In this regard, it was argued, he has been able to show that the substantive application has prospects of success.

[40] It was the submission from counsel that the Supreme Court order is final and unappealable, and that to this end, the applicant had laid out detailed legal submissions supported by authority. It was contended further that the constitutional issues are ripe for determination.

**Respondent’s Submissions Before This Court**

[41] Mr *Madzoka*, counsel for the respondent, while conceding that the applicant has met the test in *Meda supra*, in that it has pleaded a sufficient cause of action to trigger the jurisdiction of the Court, has contended that what is before the Court is a disguised appeal.

[42] It is contended on behalf of the respondent that the suggestion that the Supreme Court abdicated its judicial mandate in dismissing the appeal has not been established by the applicant. The respondent vehemently contests the averment by the applicant that the court a quo “declined to engage with the merits and nuances of the disputation inter partes”. Counsel argues that the application is frivolous and vexatious and must fail.

[43] Counsel argued that before the court a quo, two very fundamental concessions were made by the applicant’s counsel. The first was to the effect that the respondent had been unlawfully dismissed. The second, relating to the third ground of appeal, was a response by the applicant’s counsel to a suggestion from the court a quo that the third ground lacked merit, and he allegedly retorted that it could not be pursued.

[44] Counsel further argued that once the concession was made on the lack of merit of the third ground of appeal before the Supreme Court, the applicant cannot now allege that its rights were violated by the decision of the Supreme Court in dismissing the appeal before it.

Issues for Determination

[45] The concession from the respondent to the effect that there are sufficient allegations on the papers as to the existence of a constitutional matter for the determination of the Court makes the task before me considerably easier. All that has to be determined therefore is whether it is in the interests of justice that leave for direct access be allowed in casu.

The Law


[46] In dealing with an application for direct access, the Court is guided by the provisions r 21 (3) of the Constitutional Court Rules. The rules require that an applicant establish the following:

(a) the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) the nature of the relief sought and the grounds upon which such relief is based; and

(c) whether the matter can be dealt with by the Court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.

[47] Over and above this, as provided in r 21 (8), the Court, in considering the application and in particular whether or not it is in the interests of justice that direct access to the Court be availed, may take the following factors into account:

(a) the prospects of success if direct access is granted;

(b) whether the applicant has any other remedy available to him or her;

(c) whether there are disputes of fact in the matter.

[48] It is now settled that the pivotal factor that an applicant must establish is that it is in the interests of justice that direct access be granted. This requirement was enunciated by the Court in Denhere v Denhere CCZ 9/19 at p 13, where the Court stated:

“The underlying requirement is that the application ought to clearly illustrate that it is in the interests of justice that an order for direct access be granted. As was noted by the Court in the Lytton Investments (Private) Limited case supra, the filtering mechanism for leave for direct access effectively prevents abuse of the remedy.”


[49] Further, this Court’s jurisdiction has to be established first before the Court can entertain an application for direct access. In the case of *Chiangwa v Apostolic Faith Mission in Zimbabwe* CCZ 6/23 p. 10 at para 30, it was held that:

“The Constitution limits the Court’s jurisdiction and under s 167 (2) (b), it is only empowered to preside over and determine constitutional matters and issues connected with decisions on constitutional matters. Thus, the exercise of its jurisdiction over other matters that do not have the flavour of ‘a constitutional matter’ would be an illegality under the law. The court, therefore, must ensure that only those matters that can pass muster as a constitutional matter are placed before it. This has been referred to as a sifting mechanism to protect the court from unwarranted matters finding their way to the court’s corridors. The special jurisdiction of the court has been reaffirmed by a plethora of authorities.”

[50] The jurisdiction of this Court is strictly limited to constitutional issues involving the interpretation, protection or enforcement of the Constitution, as mandated by s 167 (1) (b) of the Constitution. The respondent, whilst conceding that the matter is properly before the Court, has argued that the application is nothing more than a disguised appeal. This cannot be a stand-alone issue for determination. It has to be decided within the context of the broader issue as to whether or not the applicant has established that it is in the interests of justice for leave for direct access to be granted.

**Whether it is in the interests of justice for direct access to be granted.**

[51] The applicant took the matter to the Supreme Court on four grounds of appeal. They were couched as follows:

**“GROUNDS OF APPEAL**

1. The court *a quo* erred on a point of law by making a finding that the Appellant unlawfully terminated the 2nd Respondent in circumstances were the 2nd Respondent had in fact terminated the fixed term contract between the parties.


2. A *fortiori*, the court *a quo* erred in failing to find that the *ex turpi causa* principle applied to the 2nd Respondent thus he was bound by his decision to end the employment relationship between the parties and could not be granted damages for unlawful termination of employment.

3. The court *a quo* erred at law in failing to hold that by operation of law, as from the effective date, that is, 22 February 2019, the USD values expressed in the employment contract between the parties became values expressed in RTGS at a rate of one is to one. Accordingly, the 2nd Respondent could not be awarded damages expressed in foreign currency.

4. The court *a quo* erred at law in ignoring the proper principles applicable to quantification of damages; and in particular erred at law in awarding damages without hearing evidence such that the decision arrived at was grossly irrational such that no sensible judicial officer properly exercising his mind would have arrived at such a decision.”

[52] The applicant is said to have made concessions in respect of the first three grounds. Indeed, before us, the ground that engaged the parties related to the last ground of appeal, particularly the issue of the award of the motor vehicle as part of the damages that the respondent was awarded by the labour officer in the draft ruling presented to the Labour Court for confirmation. It is at the juncture of those proceedings that this enquiry must start, as it is the allegation by the applicant that the courts, both the Labour Court and the Supreme Court, acted on no evidence to award the respondent damages.

**Proceedings before the Labour Court**

[53] A labour officer seized with the inquiry into allegations of unlawful dismissal does so under the provisions of s 93 of the Act. *In casu*, the labour officer assigned to conduct the inquiry was Jealous Zhakata. After conducting the inquiry, Zhakata concluded that the respondent was unlawfully dismissed. As a consequence, he prepared a draft ruling to which he attached copies of documents submitted to him by the parties for the inquiry. It was necessary that the draft ruling be confirmed by the Labour Court.

[54] An application for the confirmation of a draft ruling consequent to a labour officer finding that there has been an unfair labour practice or unlawful dismissal is made to the Labour Court under the Act. The application for the confirmation of the draft ruling was filed by Zhakata, as the labour officer seized with both the process to conciliate and to determine the complaint of unlawful dismissal. However, despite the clear indication of the labour officer as the applicant, the founding affidavit to the confirmation proceedings was deposed to by one Tracey Manzini, who states that she is a legal officer in the Ministry of Public Service, Legal and Social Welfare. She states that she had been seconded by the Civil Division in the Attorney-General’s Office to “prosecute the case.” Having said that, she refers to Zhakata as the applicant. She, however, proceeds to state that the facts that she has deposed to are within her personal knowledge. Clearly, that is not correct. She did not preside over the process, she did not prepare the draft ruling and she could not move for the confirmation of the draft ruling before the Labour Court.

[55] In Isoquant Investments t/a Zimoco v Memory Darikwa CCZ 68/17, the Court painstakingly went through the necessary steps for the confirmation process as required by s 93. The Court said:

“The procedure provided for in s 93 (5a) of the Act is based on the making of a “draft ruling” by the labour officer. The “draft ruling” is not capable of enforcement until it has been confirmed by the Labour Court. A “draft ruling” is not a determination, as it is not preceded by a hearing. The purpose of making an application supported by an affidavit is to place the matter in dispute and the evidence before the Labour Court for hearing and determination.
 The labour officer would not have ascertained the facts which could be ascertained only by resorting to judicial process. Only by being first ascertained through legal procedure are facts brought into the sphere of law. The Labour Court, as the competent organ under the statutory scheme for the resolution of the type of disputes prescribed under s 93 (3) of the Act, is the organ to legally create the adjudicative facts.”

[56] In casu, as the record will show, the applicant, the labour officer, was not in attendance at the hearing before the Labour Court. The parties and the court agreed to proceed with the hearing in his absence. The question is whether, in the absence of an affidavit from Zhakata and his failure to appear at the hearing for the confirmation before the Labour Court, there was an application for confirmation of the draft ruling and, more importantly, a hearing within the contemplation of the Act. Section 93(5) provides as follows:

“(5) After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him or her and to whom he or she is responsible in the area in which he or she attempted to settle the dispute or unfair labour practice—

(a) shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service, and the provisions of section 98 shall apply to such reference to compulsory arbitration; or

(b) …………… (n/a)

(c) may if the dispute or unfair labour practice is a dispute of right; make a ruling that, upon a finding on a balance of probabilities that—

(i) the employer or other person is guilty of an unfair labour practice; or

(ii) the dispute of right or unfair labour practice must be resolved against any employer or other person in a specific manner by an order—

A. directing the employer or other party concerned to cease or rectify the infringement or threatened infringement, as the case may be, including the payment of moneys, where appropriate;

B. for damages for any loss or prospective loss caused either directly or indirectly, as a result of the infringement or threatened infringement, as the case may be; whereupon the provisions of subsections (5a) and (5b) shall apply.

(5a) A labour officer who makes a ruling and order in terms of subsection (5) (c) shall as soon as practicable—

(a) make an affidavit to that effect incorporating, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down to for hearing (the “return day” of the application) to do or pay what the labour officer ordered under subsection (5) (c) (ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”(my emphasis)

[57] As more fully appears from a scrutiny of s 93 (5a), the labour officer who makes a ruling in accordance with the provisions of s 93 (5) (c) is required to make an affidavit to that effect and either refer to or attach to the affidavit any evidence upon which the ruling is based. Consequent to the filing of the application, the applicant, as respondent, would have been put on terms to pay such amount as the labour officer found to be due to the affected employee. At the scheduled hearing before the Labour Court, the labour officer, as applicant for the confirmation, was required by law to indicate to the judge whether or not the respondent before it had complied with the direction in the draft ruling. In this matter the labour officer did not provide an affidavit as required. The affidavit was compiled and deposed to by a person other than the labour officer within the contemplation of the Act. He also did not appear before the Labour Court to move for the confirmation of the draft ruling. There was no submission to the Labour Court for the confirmation of the draft by the court.

[58] In *Mazambara & Ors v Kadoma Textiles (Pvt) Ltd* HH 143-24, the court, while referring to s 93 (5b) of the Labour Act, touched on the powers of labour officers and designated agents in enforcing their draft rulings, at p 5 as follows:

“On the other hand, s 93 (5b) provides for the power of the designated agent to submit the order to the appropriate court for registration. Again, it needs to be noted that the starting point is not subsection (5b) of s 93. There are prior processes which precede the submission for registration by the designated in terms thereof. The designated agent is not simply there to submit the order for registration. The designated agent has to perform tasks as follows: Firstly he or she must have held a hearing or enquiry into the dispute, secondly he/she must have made an order, thirdly he or she must seek the confirmation of his or her order by the court and lastly if the order is confirmed by the Labour Court, he or she must see to compliance with the order and upon failure to comply, he or she must submit the order to the appropriate court for registration of his or her confirmed order as an order of the court.

Thus, simply stated, where a dispute of right has been dealt with by a designated agent, the process of enforcement is the province of the designated agent from start to finish.” (emphasis is my own)

[59] By parity of reasoning, it follows that the labour officer who was involved in the conciliation of a labour dispute is the person tasked with the application for the confirmation of the draft ruling. He or she is the person that conducted the arbitration process and it follows therefore that no other person can step into his shoes. The labour officer must present the draft ruling for confirmation in support of the conclusion reached and the amounts that are claimed by the employee or the relief sought by an employer. It
 therefore stands to reason that by operation of law, the application cannot be made by any other person. Thus, as a consequence, any application made outside the provisions of the statutory provisions setting out the processes to be followed and the procedure to be adopted is one that is not provided for by law, and such application cannot stand scrutiny. It is null and void.

[60] In addition, and most pertinent hereto, is the fact that whilst “an application” was filed under the name of the labour officer, on the date scheduled for the hearing of the confirmation process before the Labour Court there was no applicant in attendance. In

Isoquant (supra), the Court stated:

“It is clear from the provisions of s 93 (5a) of the Act that the matters over which the Labour Court would have jurisdiction if they are brought to it in terms of the requirements of the prescribed procedure are products of strict compliance by the labour officer with the procedural and substantive requirements of ss 93 (1), 93(3) and 93 (5) (c) of the Act. The procedure in s 93 (5a) is not to be read independently of the preceding procedures provided for in these subsections. This means that a matter that is not a product of compliance with the procedural and substantive requirements of these provisions would not fall within the class of matters over which the Labour Court would have jurisdiction in terms of s 93 (5a) of the Act. It would not be a matter which would be the subject of the procedure for bringing such matters to the court a quo, as prescribed under s 93(5a) of the Act. Bringing such a matter to the court a quo, under the guise of invoking the procedure prescribed in the subsection, would not validly institute proceedings in that court in terms of s 93(5a) of the Act. The court a quo would not have a valid matter over which to exercise jurisdiction.” (emphasis is my own)

[61] The remarks above apply with equal force in casu. The procedure adopted until the making of the ruling by the labour officer were in compliance with the procedures provided for in the section. Thereafter, in colloquial terms, the matter literally went off the rails. No affidavit was filed by the labour officer. What this means is that there was no affidavit in terms of which an application for confirmation of the draft ruling could be lodged. It, therefore, means that there was no compliance with s 93 (5a) (a) and (b). There was no affidavit and hence, no application legally pending before the Labour Court for confirmation. I therefore find, as I must, that there was no application upon which the Labour Court could exercise jurisdiction under the aegis of the Act in terms of s 89 (1).

[62] The exercise of jurisdiction by the Labour Court must be in compliance with the provisions of the law. In the absence of jurisdiction, any process emanating from the Labour Court is a nullity. Nothing can stand on a nullity and the processes undertaken in the Labour Court purporting to confirm the draft ruling by Zhakata constitute a gross irregularity.

[63] The result from the irregularities described above is that there was no valid judgment emanating from the Labour Court confirming the draft ruling. Thus, there could not be an appeal before the Supreme Court in view of the problems attendant upon the confirmation process. I venture to conclude that the only legal process that stands unaffected is the draft ruling by Zhakata. I am fortified in this view by the remarks of His Lordship MALABA CJ in *Isoquant, supra*, to the following effect:

“However, s 93 (5) of the Act makes it clear that it is upon the issuing of a certificate of no settlement that a labour officer, acting in terms of s 93 (1) of the Act, may direct that there be payment of money by an employer in order to rectify an unfair labour practice. At that point, the labour officer merely makes a “draft ruling”, which has no legal effect until it is confirmed by the Labour Court. Without the certificate of no settlement, a labour officer cannot purport to act in terms of s 93 (5) (c) of the Act. To that end, the respondent could not have approached the court *a quo* in terms of s 93 (5a) of the Act. The court *a quo* could not have assumed jurisdiction over the matter in terms of s 93 (5b) of the Act.


The respondent’s determination ordered the applicant to pay retrenchment packages to the affected former employees by 31 July 2016. That order was not based on any of the provisions of s 93 of the Act. Section 93 (5a) and s 93 (5b) state that the exercise of such power is the prerogative of the Labour Court upon application for confirmation of a “draft ruling” by the labour officer.” (the emphasis is my own).

[64] In addition to the foregoing, it is important to highlight that although the applicant raised the issue of the irregularity in the confirmation proceedings, specifically concerning the founding affidavit of the confirmation application, as a preliminary point before the court a quo, and the first respondent duly responded to it, the judgment of the court a quo makes no mention of this. It remains unclear whether the court considered the matter at all or merely dismissed it. Even if it was indeed dismissed, no reasons were provided for such a decision.

[65] While it is accepted that a court may disregard certain issues raised by the parties and concentrate only on those that are decisive, this is permissible only where the selected issues are sufficient to resolve the dispute between the parties – see Gwaradzimba N.O v C.J. Petron & Company (Proprietary) Limited SC 12/16. In casu, the issue of the propriety of the confirmation proceedings was central to the resolution of the dispute between the parties; hence, the court a quo was obliged to address the preliminary point before proceeding to the merits of the matter.

[66] The need to address preliminary points raised by parties in a matter was stressed in Hwatirinda v Tavaruva HMA 27-21 at p 6, as follows:


“Regrettably however, the court *a quo* skirted addressing that point *in limine* opting instead to write as follows;

‘I have not bothered to consider the points in limine raised because it was very clear to me that the law on the merits is clearly in favour of the applicant.’

That kind of approach is clearly untenable and cannot escape censure. A court seized with a matter wherein points in *limine* are raised is enjoined to address them and after due consideration, to either uphold or dismiss them. He cannot perfunctorily disregard or ignore those preliminary objections supposedly on the basis that the merits appear to weigh heavily in favour of either party.”

[67] The court *a quo* was, thus, obligated to consider the question of whether the application for confirmation of the draft ruling was properly made before the Labour Court, in order to give a definitive determination for the parties. Its failure to determine the preliminary point was a procedural irregularity at law, which renders the court *a quo’s* decision susceptible to arbitrariness.

[68] There is no doubt that the decision of the court *a quo* ultimately cannot stand as it is based on proceedings that are a nullity. Although it is not strictly necessary for a court to make a formal declaration to that effect, it is customary to do so for the sake of certainty and convenience – see *Macfoy v United Africa Co Ltd* (1961) 3 A11 ER 1169 (PC).

[69] The applicant has not adverted to the lack of legality of the processes subsequent to the making of the draft ruling by the labour officer. Its focus is on the substance of the decision of the court *a quo* which it alleges to have violated its rights. Before this Court, the applicant did not attack the procedural irregularities leading to the Supreme Court judgment.


[70] This notwithstanding, it stands to reason that the process that took place in the Labour Court cannot be wished away. The whole approach from the labour officer to the court and counsel appearing before it was replete with irregularities. In the substantive application, the applicant prays for relief in the following terms:

“1. That the applicant’s right to property enshrined in section 71 of the Constitution of Zimbabwe was infringed by the Supreme Court of Zimbabwe, in SC 671/23.

2. That the applicant’s right to the protection of the law enshrined in section 56 (1) of the Constitution of Zimbabwe was infringed by the Supreme Court of Zimbabwe, in SC 71/23.

ACCORDINGLY, IT IS ORDERED:

3. That the judgment of the Supreme Court in SC671/23 be and is hereby declared null and void and of no force or effect and is set aside.

4. That, as just and equitable relief under s 175 (6) of the Constitution of Zimbabwe, the matter is remitted to the Supreme Court for determination of the outstanding issues.

5. There shall be no order as to costs.”

[71] The application to directly approach the Court cannot succeed. The judgment of the Labour Court, being based on a process outside the provisions of the law, cannot give rise to a valid appeal before the Supreme Court. In the absence of a proper appeal, the Supreme Court is not empowered to exercise its mandate as an appeal court. Thus, the order as prayed for in the draft order for the remittal of the matter to the court a quo is not capable of being put into effect in the absence of an appeal properly pending before that court. Equally, and most importantly, there can be no outstanding issues for determination by the Supreme Court in the absence of a valid decision from the Labour Court. In view of the above, the court a quo’s decision, which was based on proceedings before the Labour Court which were a nullity, cannot be set aside on the basis of the allegations of the violation of any rights. It is part of a series of processes constituting irregularities and must be dealt with accordingly.

Whether the matter may be disposed of in terms of s 19 of the Constitutional Court Act

[Chapter 7:22].

[72] It is now a settled position in this jurisdiction that where it comes to the attention of the Court or a judge, that gross irregularities have occurred in any matter, the Court or judge, in a constitutional matter may in the exercise of review jurisdiction reposed in the Court under the Act, set aside the impugned proceedings. S 19 provides as follows:

“19 Review Powers

1. Subject to this section, the Court and every Judge shall have, in constitutional matters, the power to review the proceedings and decisions of the Supreme Court, the High Court and all other subordinate courts, tribunals and administrative authorities.

(2) The power, jurisdiction and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Court or a Judge that an irregularity has occurred in any proceedings or in the making of any decision, notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the Court or a Judge, and provision may be made in rules of Court, and a Judge may give directions, specifying that any class of review or any particular review shall be instituted before, or shall be referred or remitted to the Supreme Court, the High Court or the Labour Court, as the case may be, for determination.”

[73] The respondent has conceded that the application before the Court meets the requirements set out in *Meda, supra*. There is a constitutional matter before the Court. That said, the applicant cannot obtain the relief it seeks for a declaration of rights. The Court cannot issue an order for a declaration of the violation of rights that is based on a nullity. All it can do is to set aside the irregular processes.

[74] The exercise of the review powers of the Court in constitutional matters was reaffirmed in Vela v Auditor General & Ors CCZ 10/24 wherein the Court said the following:

“[77] The above provision is clear that review powers are exercisable only in constitutional matters. In the case of *Gonese v Minister of Finance and Economic Development* CCZ–11–23 at p. 29, para. 70, this Court emphasised that such power may be exercised at any time in constitutional matters whenever it comes to the attention of the Court, or a Judge, that an irregularity has occurred in those proceedings or in the making of any decision, notwithstanding that such decision is not the subject of an appeal or application to the Court. At para 71, the Court further expressed the sentiment that:

‘There can be little doubt this is a useful and necessary provision. In the absence of such a power, the Court, or Judges of the Court, would be utterly powerless to act, even where it comes to their attention that there has been an irregularity in the making of a decision on a constitutional matter in a lower court. Such an irregularity would remain unrectified, unless the matter becomes the subject of an appeal or review before a court, which is not always the case.’ ”

[75] In *casu*, the irregularity of the proceedings before the Labour Court permeated the whole dispute. Every aspect thereof is tainted with the illegal process that followed the draft ruling made by the labour officer. Consequent thereto nothing was done according to the provisions of s 93(5). There were therefore no proceedings to appeal against from the Labour Court.

**Disposition**

[76] The application for leave for direct access cannot succeed. There can be no violation of rights alleged against a judgment that is the end result of an irregularity. Both the Labour
 Court and the Supreme Court were caught up in a myriad of processes that purported to be under s 93 (5) of the Labour Act but instead were fraught with irregular processes not within the contemplation of that law. They were a nullity in every sense of the word. The proceedings of the Supreme Court and the Labour Court must therefore be set aside in their entirety.

[77] In the result, I make the following order:

1. The application for leave to directly access the Court is struck off the roll with no order as to costs.

2. In the exercise of this Court’s powers under s 19 of the Constitutional Court Act [Chapter 7:22], the proceedings before the Supreme Court under Case No SC 671/23 together with the judgment from the same being judgment No SC 71/23 and the proceedings of the Labour Court under Case Number LC/H/429/22 and the judgment of the Labour Court judgment number LC/H/31722 be and are hereby set aside in their entirety.

3. There shall be no order as to costs.

MAKARAU JCC : I AGREE

PATEL JCC : I AGREE

Atherstone & Cook, applicant’s legal practitioners

Chinawa Attorneys, first respondent’s legal practitioners
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