Aubrey Tinaye Dube v Innocent Magaya N.O. and C. Steinweg Bridge (Pvt) Ltd

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/151/24
HELD AT HARARE 14 FEBRUARY 2024 &
CASE NO. LC/H/1000/23
5 APRIL 2024
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO. LC/H/151/24

HELD AT HARARE 14TH FEBRUARY 2024 & CASE NO. LC/H/ 1000/23

5 APRIL 2024

In the matter between:

AUBREY TINAYE DUBE

APPLICANT

And

INNOCENT MAGAYA N.O.

1st RESPONDENT

And

C. STEINWEG BRIDGE (PVT) LTD

2nd RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE.

FOR THE APPLICANT : B. MAHUNI

FOR THE IST RESPONDENT : NO APPEARANCE

FOR THE 2ND RESPONDENT : T.J. MAFONGOYA

MAKAMURE J:

This is an application for review in terms of ss 92EE (1) of the Labour Act, Chapter 28:01 ARW rule 20(1) of the Labour Court Rules 2017(the Rules), against the proceedings of the 1st Respondent (Designated officer) that was conducted on 13 November and concluded on the 24 November 2023.

BACKGROUND


The Applicant was employed by the 2\textsuperscript{nd} Respondent as a Transport Assistant on 27 July 2018 on a contract without limit. Suspected of misconduct, a disciplinary hearing was conducted against him and applicant was dismissed. Aggrieved with the procedural irregularities applicant approached this honourable court under case number LC/H/REV/05/21.

An application for review was granted on 10July 2023 and the matter was remitted for hearing de novo. Fresh hearings proceedings were heard on 14 November 2023, and subsequently the applicant was dismissed from employment after being found guilty by the first respondent in terms of the National Employment Council Code of Conduct for the Commercial Sectors (‘S.I. 45/93’). Hereinafter ‘the code’.

**Points in limine**

Second respondent raised points in limine. These are that (i) the applicant did not comply with the peremptory provisions of R11A(4) and (5) of the Labour Court Rules Statutory Instrument 150 of 2017 (S.I. 150/2017); (ii) applicant did not complete Form LC5 as required by R20(1) when making an application for review; (iii) the relief sought is incompetent in that the proceedings which are sought to be reviewed were conducted following an order of this Court to have the matter heard afresh; (iv) the 1\textsuperscript{st} ground for review is defective in that the earlier tribunal considered it in full and the remedy for the applicant is to appeal and (v) the applicant did not exhaust domestic remedies.

In response to the preliminary issues raised it was submitted that an alternative email address was supplied in compliance with the rules. It was submitted that in any event the absence of an email address did not make the application defective. On the relief sought it was argued that the respondent placed focus on the form without considering the relief sought as shown in the draft order. It was further argued that the relief sought is an issue which should be dealt with in the merits. Further, the relief sought is consistent with what the Supreme Court said in the case of Zimbabwe United Passenger Company v Beaular Mashinge SC21/21. On the competency or otherwise of the 1\textsuperscript{st} ground for review, it was submitted this can only be decided after merits of the application have been considered as this is a reviewable issue. In my assessment of the preliminary points raised, none of them disposes of the matter.


In **Telecel Zimbabwe (Pvt) Ltd v Postal and Telecommunications Regulatory Authority of Zimbabwe and 3 Others HH-446-15** the High Court stated that the court is empowered to condone minor infractions of the rules and further that preliminary issues should be raised when they are able to dispose of the matter. In the present case the preliminary issues raised do not in my view dispose of the main matter. They appear to have been taken in order to delay the proceedings. This is undesirable and must be discouraged. While the rules must be adhered to it must be borne in mind what the effect of taking a preliminary issue will be towards the finality of the matter. In the case of **Edmore Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited SC 82/22** the Supreme Court warned judges of this Court and legal practitioners against dwelling too much on technicalities as this tends to delay finality to litigation and negatively affects the dispensation of simple industrial justice between parties. I will be guided by that warning. In the result all the points *in limine* raised have no merit. They must be dismissed.

Accordingly, it is ordered that:

1. All the points *in limine* taken on behalf of the 2nd respondent be and are hereby dismissed.
2. The Registrar is directed to ensure that the main application is set down as soon as practicable.
3. Cost be costs in the cause.

**SCANLEN & HOLDERNESS, APPLICANT’S LEGAL PRACTITIONERS.**

**MESSRS MAFONGOYA ATAPURA, 2ND RESPONDENT’S LEGAL PRACTITIONERS.**


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