Bright Dube v City Parking (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/228/23
HARARE, 18 JULY 2023 &
CASE NO LC/H/148/23
2023
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 18 JULY 2023 & 2023

JUDGMENT NO LC/H/228/23

CASE NO LC/H/148/23

In the matter between:-

BRIGHT DUBE

CITY PARKING (PVT) LTD

APPLICANT

RESPONDENT

Before the Honourable Kudya J

For the Applicant

For the Respondent

Mr A. Chambati . (Legal Practitioner)

Mr G. Sithole (Legal Practitioner)

KUDYA, J:

In an application for review the respondent employer raised 4 preliminary points. It is only these points which are addressed by this judgement.

The background to the matter is that applicant who was in the respondent’s employment as an Information Technology Officer was brought before a disciplinary committee to answer allegations of misconduct. At the commencement of the disciplinary proceedings he raised a point in limine that he had been charged using a wrong Code of Conduct. The hearing officer listened to submissions from both parties and ruled that the correct code had been used. Applicant was aggrieved by that and suggested that the hearing officer was biased and stated thatshe had to recuse herself fromthe matter. Thehearing officer statedthatshe was continuing with the proceedings.

This prompted applicant and his counsel to walk out of the proceedings. The proceedings were consequently concluded in the absence of applicant and his counsel. At the end of the proceedings applicant was found guilty and was dismissed from employment. Irked by the dismissal applicant filed with this court a review application seeking to challenge the

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proceedings which led to his dismissal. It is that review application which is tainted with the points in limine which are then subject of this judgement. Each of the points is discussed below:-

Point 1

The first point is that the applicant has not stated the jurisdiction basis upon which he seeks a review of the proceedings. Respondent maintains that applicant cannot seek a review of uncompleted proceedings. The law is settled that it is undesirable that one seeks to appeal or to seek a review of uncompleted proceedings or of interlocutory relief. The rationale behind that is to avoid dealing with the matter piecemeal thus detracting from the resolution of the matter or its merits. It is clear that what applicant seeks to impugn is the interlocutory relief granted where the hearing officer upheld the point in limine. It is further settled that where a party walks out of proceedings one loses the right to challenge such See Moyo v Rural Electricity Authority. SC-4-14. What is patently clear in the matter at hand is that applicant abandoned the proceedings which he now seeks to be set aside and that is contrary to law. The court is satisfied that the point in limine being merited should succeed.

Point 2

On this point respondent maintains that no proper review grounds have been raised by the applicant as the case is clearly an appeal disguised as a review. The court agrees with the respondent that the intended review is a disguised appeal. This is so for the reason that the record is replete with evidence that both parties were invited to address the point in limine vis the code of conduct before the hearing officer ruled on the issue. It is only the decision of the hearing officer to proceed with the matter as per code cited by the respondent which irked the applicant and caused him to walk out. That surely cannot be an issue calling for review given the bias allegations emanated from the hearing officer’s decision to that the correct code had been used. The court is satisfied that indeed no good grounds for review have been set out. The point in limine being merited should succeed.

Point 3

This is intricately linked to point 2 where the court reasons that by his walking out the applicant lost his chance to challenge the proceedings leading to his dismissal. Sentiments echoed on point 2 apply here with equal force. The point being merited should also succeed.

Point 4

Respondent argue that incompetent relief has been sought on review proceeding. It reasons that applicant cannot seek to be reinstated if the review application succeeds. It is satisfied that one

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should only escape the consequences of his conduct if it is demonstrated that one is not guilty. See  Air Zimbabwe v Mnensa SC-89-04 where procedural irregularities are raised and succeeds the remedy lies in the corrector of the irregularities. See Barclay Bank v SC-99-03. Reinstatement relief can thus not be available to applicant even if the review were adjudged to be merited. The point being merited should also succeed. In the ultimate all the points in limine being merited they should succeed.

IT IS ORDERED THAT

The points in limine being merited they be and hereby succeed. The application for review is consequently struck off the roll on account of it being bad at law for reasons stated in the points in limine. Each party bears own costs,

Chambati, Mataka and Makonese Attorneys at Law, Applicant’s Legal Practitioners

Kantor and Immerman, Respondent’s Legal Practitioners