Bishop Nyaruwata v Assa Abloy South Africa (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/40/24
ZIMBABWE HARARE, 30 JANUARY,
CASE NO. LC/H/494/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 30TH JANUARY, 2024 & 5

FEBRUARY 2024

BISHOP NYARUWATA

And

ASSA ABLOY SOUTH AFRICA (PVT) LTD

Before the Honourable Kachambwa J, Judge;

JUDGMENT NO. LC/H/40/24

CASE NO. LC/H/494/23

APPLICANT

RESPONDENT

For Applicant:	Mr Gwisai (Legal Practitioner)

For Respondents:	Mr Kanokanga (Legal Practitioner)

KACHAMBWA, J:

The Application

This is an application for joinder of first respondent in a combined appeal and review in LC/H/1186/22. It is in terms of Rule 33 of the Labour Court Rules 2017, S. I. 150/2017.

The Applicant was employed by the second respondent. He was charged of acts of misconduct by the very second respondent, found guilty and dismissed from work. The Applicant appealed against, as well as applied for a review of, the decision before this court, citing the second respondent only. The second respondent denied jurisdiction of this court in that case. Case LC/H/1186/22 refers. Having met this hurdle the Applicant applied for joinder of the second respondent in the present case LC/H/494/23.

1

The Applicant argued that although he was charged and discharged by the second respondent in reality he was employed by the first respondent on behalf of the second respondent and that the two respondents were in fact one and the same. He pointed out that the requirements of this application are that the party seeking to be joined must have a substantial interest in the issue raised in the proceedings and secondly that such party’s rights may be [adversely] affected by the judgment of the court in that pending matter.

The Response

The first respondent opposed the application pointing out that it was not a party to the proceedings subject of the appeal and review, it could not be joined at this stage. It had no input to the decision subject of the proceedings. It also argued that it had no interest in the matter at all. Further there was no application to pierce the vail and in any case such a process was not competent in the Labour Court.

Mero Motu

The court also asked whether the application was competent since it was not made by the first party. The first party was not seeking to protect any rights or interests. It was the Applicant who was seeking that. A kind of trick?. The Applicant said that this was competent since that was the only way the first Respondent could be drawn into the proceedings as it was the same person with the second Respondent. The first Respondent was of the view that it was not competent as the first Respondent must be the Applicant.

Analysis

The first Respondent was not involved in the judgment subject of the appeal and review. To that extent it cannot be a party at this stage. Secondly the Applicant apparently agreed to be an employee of the second respondent all along and is only bringing in the first Respondent not to protect the first Respondent’s rights and interests but to protect the Applicant’s own rights and interests. First Respondent is not applying to be joined at all. The Applicant should have objected to be charged by the second Respondent alone. The first Respondent may not be dragged into the case at this late stage. It has not applied to be joined. It does not have interest in the matter. It may not be joined. The application for joinder must therefore fail.

Disposal

The application for joinder is not competent. It is therefore dismissed with costs.