Agnes Satumba and 7 Others v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/46/2025
HARARE, 10 FEBRUARY, 2025 AND
11 FEBRUARY 2025
CASE NO LC/H/929/24
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/46/2025

HARARE, 10 FEBRUARY, 2025 AND

11 FEBRUARY 2025                                                	CASE NO LC/H/929/24

AGNES SATUMBA AND 7 OTHERS			APPLICANTS

CITY OF HARARE						RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicants			- L. Seremani, Attorney

For Respondent		- B.T. Mandima, Attorney

MUSARIRI, J:

Applicants applied to this Court for their joinder to the appeal pending under reference LCH 74/23. The application was made in terms of Rule 33(2) of the Labour Court Rules, 2017. Respondent opposed the application.

The pertinent part of their founding affidavit read thus;

“3. On 31 January 2023, Johnson Chirefu filed an appeal in this court against the decision of the Designated Agent in case number LCH 74/23 styles Johnson Chirefu and 8 others. The 8 others were not properly cited in the appeal and are the present applicants for a joinder.

4. Applicants were properly cited when they appeared before the Designated Agent at the Employment Council and there was no issue on that score with the Respondent.

5. After the hearing at the Employment Council the Designated Agent cited Johnson Chirefu and 8 others on the ruling on their appeal without citing all the Appellants.

6. Applicants have been active parties in, as well as instigators of the proceedings that were before the Designated Agent and at the Labour Court in case number LCH 74/23 as they were cited as the 8 others in the appeal. This was an honest error on the part of the Applicants.”

Applicants then applied for joinder to the said appeal.

In its opposing affidavit, respondent countered in the main as follows;

“Ad Par 3

2. The Applicant has conceded that the appeal filed under case number LCH 74/23 is defective. For ease of reference see …

3. Applicant avers that the eight (8) others were not properly cited which clearly exhibits that the Applicant is aware that they are already parties to the matter. The defectiveness of their citation on appeal is irrelevant.

Ad Par 4-5

5. These averments do not cure the defective appeal, neither do they help this case. The Applicants seek to lay the blame on the Designated Agent and not themselves.

The citation of the ruling by the Designated Agent is the correct one as it is the correct legal reference for a case with many parties. The applicants on appeal, ought to have cited all the names of the appellants which they did not do.

Ad Par 6

7. This paragraph is self-destructive as it exposes that the applicants are already parties to the matter which was decided by the Designated Agent. Once it is admitted that the appeal has an error, then that is the end of the story. Firstly, there is no room for joinder on appeal as already pleaded above. Secondly, one cannot seek to be joined to a defective appeal which is a nullity at law.”

Respondent prayed for the dismissal of the application.

Analysis

Rule 33 of the Court’s Rules provide that;

“(2) A person who has an interest in the determination of a matter by the Court may apply to be joined as a party to the proceedings.”

The position is further elaborated in case law like

Drum City v Garudzo 2018(2) ZLR 445(S)

where Gwaunza DCJ quoted as follows at 450G;

“A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings or if such order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that person has waived the right to be joined.”

It is common cause that applicants have a substantial interest in the appeal referenced LCH 74/23. They were parties to proceedings which produced the ruling under appeal.

However the appeal was titled Johnson Chirefu and 8 others leaving the applicants unnamed. That effectively means it is only Chirefu who is properly before the Court in the appeal. The citation ‘and 8 others’ amounts to nullity at least in a founding document like the notice of appeal. The argument by respondent that the appeal is a nullity is misconceived. The appeal by Chirefu is valid. It is that valid appeal to which applicants wish to be joined. The cases relied on by respondent viz llasha v Yakatala and MacFoy v United Africa are clearly inapplicable to the facts in casu.

Wherefore it is ordered that,

The application for joinder be and is hereby granted;

The applicants namely, Agnes Satumba, Tendai Nyatondo, Nyevero Chimwe, Dumisani Dube, Melody Dube, Bwacha Taitos, John Piroro and Biggie Muza are hereby joined to the appeal referenced LCH 74/23 as 2nd to 9th appellants; and

Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E