Bindura Rural District Council v Zimbabwe Rural District Councils Workers Union

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/135/24
HELD AT HARARE 24TH JANUARY 2024
CASE NO LC/H/292/23
AND 26 MARCH 2024
In the matter between
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 24TH JANUARY 2024
AND 26 MARCH 2024

In the matter between
BINDURA RURAL DISTRICT COUNCIL
And
ZIMBABWE RURAL DISTRICT COUNCILS
WORKERS UNION

APPELLANT
RESPONDENT

BEFORE HONOURABLE MAKAMURE, JUDGE

FOR THE APPELLANT: MR T.S. MUSUNDIRE (LEGAL PRACTITIONER)
FOR THE RESPONDENT: MRT.E. MUDZURI (LEGAL PRACTITIONER)

MAKAMURE J:

This is an appeal. The appeal matter was deemed abandoned by the Registrar. However, the matter was still set down for a hearing before the parties had dealt with the abandonment. The question of the abandonment was brought to my attention by the parties.

The present matter, I believe is one that the Court can invoke the provisions of R32 which provides as follows

‘32. Departure from rules

At any time before or during the hearing of a matter a Judge or the Court may—

(a) direct, authorise or condone a departure from any of these rules, including an extension of any period specified therein, where the Judge or Court is satisfied that the departure is required in the interests of justice, fairness and equity;
 (b) give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to the Judge of the Court to be just, expedient and equitable.’

The fact that the matter had been deemed abandoned has been overtaken by events in that the matter was set down for a hearing before the appellant had made an application for its reinstatement. In view of this I am of the view that instead of sending the parties back to start the process of reinstatement of the matter, I authorize that the matter is properly before the Court. This appears expedient and equitable. It speeds up finality to litigation. For that reason it is so directed.

The matter started off with parties raising preliminary points. Mr Mudzuri who appeared on behalf of the respondent raised the issue that the $2^{nd}$ and $3^{rd}$ grounds of appeal are grounds for review. For that reason, it was submitted that they should be struck out. The Court was referred to provisions of S92D and S92EE of the Labour Act Chapter 28:01 and case law which included **Kamuzonde v NEC Textile LC/H/358/23** and **Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CCZ 6/20**. Mr Mudzuri who appeared on behalf of the respondent also raised the point that the prayer is incompetent in that it is asking the Court to refer the matter back which is a ‘natural ‘consequence of an application for review.

In response Mr Musundire who appeared on behalf of the appellant took the position that the respondent had ambushed him by taking a preliminary point at the hearing. He referred the Court to the case of **Chikura v AL Shams Global BVI SC17/2017**. On the question of the prayer Mr Musundire conceded that the prayer was defective.

In reply Mr Mudzuri argued that a preliminary point can be raised at any time. Further it was Mr Mudzuri’s submission that the preliminary point did not prejudice the appellant. This he submitted, was because the decision which is being appealed has not been dismissed and still the appellant has not yet complied with that decision.

The grounds of appeal are couched along the following lines:

‘1. The Designated Agent erred in quantifying the adjusted salaries for the period 2022 to January 2023 when the determination did not provide for that period.

2. The Designated Agent erred in quantifying the Trade Union dues as it was not determined in the said determination of 6September 2021 meaning there was no outstanding Union Dues as stipulated in the quantification determination dated 31 January 2022. See attached Annexure B.

3. The Designated Agent was biased in stating that the Appellant had been ordered to pay an upward review of salaries and allowances when no such determination had been made for the period September 2022 to January 2023.’

And the prayer reads:

‘WHEREFORE the Appellant prays for:

1. The appeal succeeds and the determination appealed against be and is hereby set aside.

(a) The matter be and is hereby referred back to the court of first instance for a fresh hearing.

(b) Each party to bear its own costs.’

It is instructive to refer to provisions of the Labour Act Chapter 28:01 (the Act).

S92EE provides for review before this Court as follows:

‘92EE Grounds of review by Labour Court

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with is Act may be brought on review before the Labour Court shall be—

(a) absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b) interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned:

(c) gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.’

In the present matter the third ground of appeal refers to bias on the part of the adjudicating authority. This is a ground for review as reflected in s92EE(1)(b) above. This ground ought to be struck out. It is not properly before the Court.

On the question of the prayer, Mr Musundire conceded that the prayer was defective. The concession was well made. Mr Musundire, made indications that the prayer needed amendment. In Fadzai John v Delta Beverages SC 40/2017 the Supreme Court held that a defective prayer cannot be amended. In the present matter what is before me is a defective prayer which has not been amended. This means that because of the defective prayer, the appeal is not properly before the Court.

In view of the foregoing, it is ordered that:

The Appeal be and is hereby struck off the roll.

WARARA AND ASSOCIATES, APPELLNT’S LEGAL PRACTITIONERS.

LAWMAN LAW CHAMBERS, RESPONDENT’S LEGAL PRACTITIONERS
--- END OCR FALLBACK ---