Brenda Chido Mabuto v Ashleen Investments (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
HARARE, 22 JULY 2024
07 AUGUST 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 22 JULY 2024

07 AUGUST 2024

BRENDA CHIDO MABUTO	APPLICANT

ASHLEEN INVESTMENTS (PVT) LTD	RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	-Mr B. Magogo, Advocate

For Respondent	- Ms N. Mangoi, Attorney

MUSARIRI, J:

Applicant applied for leave to appeal this Court’s judgements to the Supreme Court.

The application was made in terms of Section 92F (1) of the Labour Act Chapter 28:01 as read with Rule 43 of the Labour Court Rules, 2017.  Respondent opposed the application. An application for leave to appeal is determined by a consideration of two factors which shall be dealt with ad seriatim.

A Whether the intended appeal raises question/s of law:

Applicant’s draft Notice of Appeal has four (4) grounds of appeal which read

“1. The court a quo erred in failing to find that the Respondent’s opposing affidavit was not properly commissioned as it did not have a date indicating when the Commissioner of oaths had attested to the same.

The court a quo grossly erred and mis-directed itself on a point of law in finding that the Disciplinary Authority retained its jurisdiction to determine the disciplinary proceedings after same had properly been referred in terms of section 101(6) of the Labour Act (Chapter 28:01).

The court a quo erred and misdirected itself in making a finding that Applicant relied on the dissenting judgment by Gowora JCC in Munchville v Mugavha 2019(3) ZLR 547 in circumstances where reliance was place d on the majority judgement of that decision.

The court a quo erred in finding that by absenting herself, Appellant had waived her right to challenge the disciplinary proceedings before an employer whose jurisdiction had been ousted by statute.”

The 3rd ground is but an argument as amply shown by reliance on case law which is material for heads of argument. There is no substantive ground therein. The 2nd and 4th grounds both basically challenge the jurisdiction of the disciplinary authority. To that extent the 4th ground is superfluous. That leaves the 1st and 2nd grounds.

The 1st ground avers that the opposing affidavit was not properly commissioned because it did not have a date indicating when the Commissioner “attested to the same”. Whether or not there was such a date is clearly a question of fact. This Court found that as a matter of fact that the date was there on the affidavit.

Section 92 F (1) of the Act provides that,

“An appeal on a question of law only shall lie to the Supreme Court from any decision of the

Labour Court.”

The manner in which the 1st ground is framed does not qualify it as a question of law.

The 2nd ground of appeal does raise a question of law. Whether or not the Disciplinary Authority retained jurisdiction upon referral to a Labour Officer is a question of law.

B Whether the ground/s have reasonable prospect of success:

We are now dealing solely with the 2nd ground of appeal. However, the question raised has been settled by the Supreme Court in the case

Munchville v Mugavha 2019(3) ZLR 547(S)

Per Patel JCC at P. 550 F

“Having regard to the authorities cited above, the basic principle to be applied where an employee is unprocedurally disciplined or dismissed is that the employer is a large to rescind  the irregular proceedings or dismissal and thereafter institute fresh disciplinary proceedings on a proper basis. Nevertheless, it seems to me that it may be necessary and proper to depart from this general principle in very limited and exceptional circumstances.”

This general rule applies in casu where respondent revoked initial charges of misconduct and instituted fresh disciplinary proceedings against applicant. The exception to the general rule in

Munchville references “very limited and exceptional circumstances.” None such reference is made in applicant’s 2nd ground of appeal. Therefore, the ground does not enjoy reasonable prospects of success.

In all the circumstances it is 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