Allen Mudzimu v Mashonaland Tobacco Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/207/2024
HARARE, 30 JANUARY 2024
CASE NO LC/H/860/23
In the matter between:-
ALLEN MUDZIMU
APPLICANT
AND
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==============================IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/207/2024

HARARE, 30 JANUARY 2024
CASE NO LC/H/860/23

In the matter between:-

ALLEN MUDZIMU
APPLICANT

AND

MASHONALAND TOBACCO COMPANY
RESPONDENT

Before the Honourable Murasi J

For the Applicant - Mr B. Mudiwa

For the Respondent - Mr F. Mahere with Mr P. Donzvambeva

EX-TEMPORE JUDGEMENT

MURASI, J:

This is a ruling on the preliminary issues raised by the parties. Applicant raised the point that the deponent to the Opposing Affidavit had not shown that he was duly authorised. In response Respondent’s legal practitioner stated that the Deponent was not initiating the application but merely acting as a witness. It was also averred that Applicant had not raised this issue in previous proceedings beginning with the Disciplinary proceedings which were initiated by the Deponent.

It is correct that the point can be raised at any time as it is a point of law. However, a point of law should be relevant and supported by facts. In this case, the Deponent was instrumental in bringing proceedings against the Applicant. Applicant was happy to swim along and did not object. He is taken to have acquiesced to the authority of the deponent. I am of the view that the point has simply been raised to put the Respondent out of court at the 11th hour. The preliminary is therefore dismissed.


Respondent raised 2 preliminary points. The first was in respect of the Founding Affidavit. Ex facie the document shows that the Commissioner of Oaths signed the document 2 days before the Deponent signed it. The issue was raised by Respondent in the Notice of Opposition, but Applicant did nothing about it. The affidavit is defective. There can be no reliance placed on it meaning that there is no evidence before the Court. This preliminary point is upheld.

Respondent’s 2nd preliminary point was in respect of the Draft Notice of Appeal. Applicant’s legal practitioner made the concession that it was defective and therefore a nullity. He urged the Court to revert to Rule 12 and stated that they were in a position to amend the Draft Notice of Appeal. As observed during these deliberations, a nullity cannot be amended. The Respondent’s second point in limine is also upheld. The result is that applicant’s application is defective and ought to be struck off the roll.

The Court makes the following Order.

1. Applicant’s point in limine is hereby dismissed.
2. Respondent’s points in limine are hereby upheld.
3. The Application for leave to appeal is hereby struck off the roll by reason of defective Founding Affidavit and Draft Notice of Appeal.
4. Each party to meet its own costs.
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