Aubrey Tinaye Dube v Innocent Magaya N.O. and C. Steinweg Bridge Zimbabwe (Private) Limited

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/37/25
ZIMBABWE HELD AT HARARE 15
JANUARY 2025
CASE NO. LC/H/1135/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 15 JANUARY 2025

JUDGMENT NO. LC/H/37/25 CASE NO. LC/H/1135/24

IN THE MATTER BETWEEN:-

AUBREY TINAYE DUBE	APPLICANT AND

INNOCENT MAGAYA N.O.	FIRST RESPONDENT

C. STEINWEG BRIDGE

ZIMBABWE (PRIVATE) LIMITED

SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Mr. B. Mahuni

For Second Respondent	Mr. T.J. Mafongoya No Appearance for First Respondent

MURASI J.,

In an order dated 15 January 2025, this Court struck off the roll the application for condonation for late filing of an application for Review after upholding the points in limine raised by Second Respondent. Despite reasons having been given in an Ex Tempore Judgment on the same date, Applicant has requested for ‘fuller’ reasons. These are they.

At the commencement of the proceedings, Mr. Mafongoya raised a point in limine to the effect that the prayer in the Draft Application for Review did not comply with the law. He stated that where the draft filed is fatally defective, it should be held that there is no application before the Court. He relied on the case of Chamboko v Dorowa Minerals SC 26/15. He further submitted that the current draft prayer sought reinstatement but refrained from seeking damages in lieu of such reinstatement. He added that where such pleadings were fatally defective, they affected the application for condonation because where a court grants relief such defective application cannot be amended. Mr. Mafongoya argued that the submission was not merely technical, and the statutory provisions of the Labour Act were not complied with.

Mr. Mafongoya also added that the relief was mischievous as the judgment of KUDYA J had not reinstated the Applicant and the NEC had also dismissed Applicant’s claim. He submitted the Applicant was in actual fact seeking that the Court should review the decision of another Judge of parallel jurisdiction.

In response, Mr. Mahuni stated that he did not believe that a reference to Supreme Court Rules in the judgments relied upon by the Second Respondent should apply in the present matter. He also added that he did not believe that the defective nature of the Draft Application for Review should affect the application for condonation. He argued that, in his interpretation, the granting of a review would result in the setting aside of the proceedings a quo and that the issue of damages in lieu of reinstatement would arise where there was a determination of an unlawful dismissal. Mr. Mahuni further submitted the Draft Application for Review was in terms of section 92EE of the Act and that no regard should be had to section 89 as stated by Second Respondent. He further argued that the decision by KUDYA J restored the parties to the 2021 position where the Applicant was on suspension. He argued that Rule 12 of the Labour Rules, 2017 discouraged reliance on technicalities and formalities in proceedings.

ANALYSIS

The present discussion by the parties has been the subject of litigation in many a case both inn this Court and the Supreme Court. Decisions, which are binding on this Court, have been churned out on many occasions. In Mandiringa & Ors v National Social Security Authority 2005 (2) ZLR 329 (H), MAKARAU J (as she then was) had this to say:

“It is therefore the settled position in our law, that in ordering reinstatement inn terms of the Labour Act, the Labour Court, labour officers and arbitrators appointed under the Act, are duty bound to assess damages in lieu of reinstatement.”

It has also been stated that it would amount to a misdirection for the Court to issue a reinstatement order without simultaneously providing an alternative order for damages in lieu of reinstatement. The following was stated in ZIMRA v Chadzima SC 33/20:

“Clearly the Labour Court misdirected itself in an least two fundamental aspects.. The second aspect is that contrary to the law, it ordered reinstatement without ordering, in the alternative, damages in lieu of reinstatement.”

Further, in ZUPCO v Chisvo SC5/99, McNALLY JA had this to say:

“We are aware that the alternative of damages is an essential part of any order of reinstatement, in terms of the clear provisions of s 96 (1) (c) of the Act (Chapter 28:01) “

Clearly, the precedents cited above show that an order for reinstatement should be accompanied by an alternative for damages in lieu of such reinstatement. It is impermissible for an order to be made without incorporating the issue of damages as clearly stated by MALABA JA (as hethen was) in Ndlovu v Ndlovu SC 133/02:

“If the appeal is allowed or the decision being appealed against is set aside and a new order substituted in its place, such new order has to be prayed for. It cannot be granted mero motu

by the court. The appellant’s Notice of Appeal (read, Application for Review) has to provide for such an order.”

Elsewhere in this judgment I have referred to the fact that this Court is bound by precedent from the Supreme Court. The decisions of that Court clearly state that an order by the Court for reinstatement has to have an alternative for damages in lieu of such reinstatement. The Applicant’s Draft Order in the Draft Application for Review does not carry such an alternative. It is therefore defective and affects the application for condonation. The result is that the application for condonation has to be struck off the roll. The following Order is appropriate:

The point in limine is hereby upheld.

The application for condonation of the late filing of an application for review is hereby struck off the roll by reason of a defective Draft Application for Review.

Applicant to meet Second Respondent’s costs.

Applicant shall not institute any proceedings against the Second Respondent in this Court on the same cause of action without complying with paragraph 3 above or filing a waiver by Second Respondent for such non-compliance.

Scanlen and Holderness-	Applicant’s legal practitioners.

Mafongoya & Matapura Law Practice-    Second Respondent’s legal practitioners.