Blue Ribbon Foods Ltd v Amos Mwali

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/323/24
HARARE 10 MAY 2024
CASE NO LC/H/131/24
05 AUGUST 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 10 MAY 2024

05 AUGUST 2024

JUDGMENT NO LC/H/323/24 CASE NO LC/H/131/24

BLUE RIBBON FOODS LTD	APPLICANT

AMOS MWALI	RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	-Ms M.V. Mwase Attorney

For Respondent	- Mr O. Muzembe Attorney

MUSARIRI, J:

Respondent (employee) applied to this Curt for the reinstatement of his abandoned appeal. Applicant (employer) opposed the application.

On 19 January 2024 this Court dismissed the employer’s points in limine under judgement referenced LCH 09/24. The application proceeded to a hearing.

On 19 January 2024 this Court granted the application and reinstated the appeal under judgment referenced LCH 19/24.

Then on 15 February 2024 the employer failed the present application for leave to appeal both judgements to the Supreme Court of Zimbabwe.

The draft grounds of appeal read as follows

“The court a quo misdirected itself:

In reinstating the lapsed appeal notwithstanding that the notice of appeal in the main matter (Case No LCH 481/23) is fatally defective, as it does not include an alternative prayer for damages in lieu of rein statement as required by law,

In granting the application notwithstanding that the explanation for non-compliance Averred solely relied on hearsay and un-corroborated information regarding IECMS.

In condoning non-compliance with the rules of the Court, in circumstances were the respondent was seeking condonation for yet another non-compliance.”

The employee countered in his heads of argument thus,

“10.3 The Court a quo considered the Respondent’s explanation of the IECMS challenges in filing her heads of argument as corroborated by his lawyers of record in their supporting affidavit filed of record. Applicant has challenged this explanation of the allegation that it is based on hearsay evidence and not its reasonableness. Respondent has duly averred that he had access to the IECMS system and further that the confirmation by his lawyers of record confirmed the same and it was for the Applicant to prove that he did not. No evidence had been tabled before this Honourable Court to dispute this. It is a trite position of our law that he who alleges must prove. In the absence of proof that Respondent did not have access, it is humbly submitted that the court a quo correctly found the Respondent’s explanation to be reasonable in the circumstances and this challenge does not enjoy any prospects of success.

10.4 The Applicant in his founding affidavit averred that the court a quo erroneously granted the application for reinstatement when it did not enjoy prospects of success because of what they allege to be a fatal defect on the appeal of not making an alternative prayer for damages in lieu of reinstatement. This is a very misleading position which demonstrates that Applicant is bend on being vexations and wasting the court’s time. Section 89(2)(iii) of the Labour Act (Chapter 28:01) cited by the applicant merely sets lout the powers of the court when presented with an application for reinstatement. The powers among others include awarding reinstatement. When making such an award or determination for reinstatement the court should also grant an alternative remedy for payment of damages in lieu of reinstatement. Clearly the intention of the legislature is to regulate how the Labour Court makes determinations on reinstatement and this in my humble view has nothing to do with providing a peremptory requirement for the form of the draft order by the Respondent to an extent of amounting to fatal defectiveness should the alternative prayer not be included by Respondent. To insinuate that the appeal is fatally defective prayer not be included by Respondent. To insinuate that the appeal is fatally defective for failure to include the alternative prayer for payment of damages ibn lieu of reinstatement by the respondent is not only mischievous but lacks any legal merit.  The court a quo rightfully held that it legally bound to judiciously award an appropriate  determination as guided by the Labour Act a function which Section 89(2)(c)(iii) seeks to regulate.”

The Court is persuaded by respondent submissions. The order of reinstatement of matter was based upon the Court’s exercise of discretion in condoning non-compliance with Rules. The Supreme Court will not interfere the exercise of the discretion unless gross-error or irrationality is shown. Such factors are not pleaded in the draft appeal. The 1st ground re-hashes a defect in the prayer which amounts to pedantry as highlighted in the impugned judgement. The 2ND ground based on hearsay overlooks the fact that the Labour Court is “not bound by the strict rules of evidence” per Section 90A (1) of the Labour Act Chapter 28:101.  The 3rd (and final)

ground complains about “yet another non-compliance”. Such complaint does not raise a point of law. The Court is fortified in this view by the dicta in

Barros v Chimponda SC 01/99 per Gubby CJ

The determination of the learned Judge that there were not special circumstances for preferring the second purchaser above first one which clearly involved the exercise of a judicial discretion

… may only be interfered with on limited grounds. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course… In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”

It is therefore concluded that the application for leave to appeal ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The application for leave to appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E