Artwell Mapani v Pacific 24 Hour Hospital

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IN THE LABOUR COURT OF ZIMBAWE
JUDGMENT NO LC/H/120/23
HAHARE 2nd MARCH 2023 AND
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IN THE LABOUR COURT OF ZIMBAWE 		JUDGMENT NO LC/H/120/23

HAHARE 2nd MARCH 2023 AND

…….. APRIL 2023				CASE NOLC/H/ 1005/22

In the matter between :-

ARTWELL MAPANI				APPELLANT

And

PACIFIC 24 HOUR HOSPITAL			RESPONDENT

Before the Honourable Makamure J

For the Appellant 	: In Person

For the Respondent	: Mr Mbereko (Legal Practitioner)

This is an appeal against a determination by a designated agent.

At the commencement of the hearing two preliminary points were take on behalf of the respondent. These were that (i) the designated agent who made the decision was not cited as a party to these proceedings and (ii) it was not clear as to what was before the court as there appeared to be two notices of appeal  and both signed by the appellant on the 28th  of October 2022.The appellant quickly responded that he would be bound by the notice of appeal which appears first on the record of proceedings. The second set of grounds of appeal was therefore expunged from the record. This means that there is only one preliminary point for determination by the Court.

It turned out that there was another matter between the same parties which had been determined by this court. I however proceeded to hear the preliminary point but impressed upon the parties that I would want to see the judgment in that other matter before considering judgment in the present preliminary point. Mr Mbereko kindly furnished me with a copy of that judgment.

I have now had sight of the other judgment . It is a judgment of this Court( Honourable Kudya J) Judgment No LC/H/320/2022 .It was an application for condonation of late noting of an appeal and extension of time within which to file the appeal. The matter was between the same parties. The judgment  was handed down on 21st October 2022 .That application was dismissed. I therefore wonder why there is before me an appeal between the same parties. I propose to deal with the second preliminary first and return to the Juddgment LC /H/ 320/22 later.

The preliminary issue relates to why the designated agent who determined the matter was not cited as a party to the present proceedings. The response of the appellant was that he only cited the respondent because it is the respondent who has all the evidence. I agree with this statement. On a technical or procedural aspect though, once a designated agent has redressed a dispute , that determination can be appealed. From the record of proceedings it appears that the designated agent redressed the dispute. There is therefore no need to cite the designated agent as a party to the current proceeding. This is distinguishable from a situation where the designated agent issues a certificate of settlement or no settlement after which they make a draft ruling and  then apply to this Court for confirmation of that draft. ISOQUANT   INVESTMENTS   (PRIVATE)   LIMITED   t/a    ZIMOCO v MEMORY DARIKWA CCZ 6/2020 . In the present matter therefore the dispute was redressed and appellant properly noted the appeal . There is therefore no merit in the second preliminary issue raised.

I now go back to judgment No LC/H)/320/22. As I noted earlier the judgment relates to the same parties. The appellant did not clarify whether or not the same issues being appealed are the same for which the application for condonation was made and the court dismissed it. Further and as already noted the application for condonation was dismissed on 21st October 2022 and only a few days later on 28th October 2022 the present appeal was noted. There is need for the parties to clarify what is before the Court.

I have already dismissed the preliminary issues. However it is not clear as to what is before the court in view of the application for condonation and extension of time within which to appeal which this Court dismissed. For that reason the matter is not properly before me.

Accordingly it is ordered that :

The matter be and is hereby struck off the roll.

Pundu & Company, Respondent’s Legal Practitioners