Brenda Chido Mabuto v Ashleen Investments (Pvt) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/174/24
HARARE, 1 FEBRUARY, 2024
CASE NO LC/H/656/23
16 APRIL 2024
BRENDA CHIDO MABUTO
APPLICANT
ASHLEEN INVESTMENTS (PVT) LTD)
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/174/24

HARARE, 1 FEBRUARY, 2024

CASE NO LC/H/656/23

16 APRIL 2024

BRENDA CHIDO MABUTO

APPLICANT

ASHLEEN INVESTMENTS (PVT) LTD

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant - Mr B. Magogo, Advocate

For Respondent - Mr T. Kabuya, Attorney
- Mr R. Matsikidze, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court the both parties raised points in limine. The points shall be dealt with in turn.

Applicant

Applicant submitted that respondent’s opposing affidavit was not properly commissioned because it does not show the date when the Commissioner of Oaths signed it.


Applicant further submitted that the typed date above the deponent’s signature is not enough. She also relied on the case of

**Ariston v Econet SC 123/23**

Per Mathonsi JA

“At the commencement of the hearing Mr Mafukidze who appeared for the respondent, relying on the authority of Mandishaya v Sithole HH 798/15, which is a judgment of two judges of the High Court, submitted that the founding affidavit of the appellant in the court a quo was invalid as it was undated….

The court a quo was bound by the Mandishaya judgment being the judgment of the two judges. Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law. We do not agree with Mr Magwaliba for the appellant, with his argument that the judgment was wrongly decided.”

Respondent distinguished the Ariston case on the basis that the affidavit in casu is dated. Respondent relied on the date appearing before the deponent’s signature. The Court is persuaded by respondent’s argument. A holistic view of the affidavit shows that the Commissioner of Oaths endorsed the date appearing above the deponent’s signature. If there was no such date then the affidavit would be invalid per the Ariston case.

**Respondent**

Respondent submitted that the relief sought by applicant is incompetent. The draft order in its 2nd paragraph seeks reinstatement of applicant’s employment by respondent. It was argued that reinstatement is not a competent relief in a review application. Reliance was placed on the following cases

**ZFC v Geza 1998(1) ZLR 157(5)**

**Muringi v Air Zim 1997(2) ZLR 488(5)**


Applicant countered that reinstatement is available on review as shown by the case of

**ZUPCO v Mashinge SC 21/21**

Per Makarau JA

“16. The broader and more readily acceptable position in my view is that the **status quo ante** of the parties that is restored upon the setting aside of irregular employment disciplinary proceedings also relates substantively to the contractual status of the parties. **Put simply, it must be understood to mean broadly that upon the setting aside of fatally defective disciplinary proceedings, the employment contract is restored**, without necessarily or by implication negating the remedies and procedures available to each party to terminate the contract in terms of the agreed terms.”

In that case the Supreme Court upheld this Court’s order which reinstated the employee upon granting his application for **review**. The **ZUPCO** case being the latter of the cases cited prevails over the earlier cases.

**Conclusion**

It is therefore concluded that the both points **in limine** ought to be dismissed as devoid of merit.


Wherefore it is ordered that,

1. Applicant’s point in limine be and is hereby dismissed;

2. Respondent’s point in limine be and is hereby dismissed; and

3. The Registrar of this Court is directed to re-set the matter for continuation on the earliest available date.

G. MUSARIRI
J-U-D-G-E
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