Charmaine Murapa v Rema Tip Top (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/291/25
HARARE, 29 MAY 2025 AND 15 AUGUST 2025
CASE NO LC/H/232/25
CHARMAINE MURAPA
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 29 MAY 2025 AND 15 AUGUST 2025

JUDGMENT NO LC/H/291/25 CASE NO LC/H/232/25

CHARMAINE MURAPA	APPLICANT

REMA TIP TOP (PVT) LTD	RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	T.S. Mjungwa, Attorney

For Respondent	I. Chikaka, Attorney

MUSARIRI, J:

On 17 Mach 2025 applicant applied to this Court for condonation of a belated review. The application was made in terms of Rule 22 of the Labour Court Rules, 2017. At the onset of oral arguments the both parties raised points in limne which shall be dealt with in turn.

APPLICANT

That there is the notice of response filed is invalid:

The argument was that the deponent to the opposing affidavit attached to the notice of response, did not attach a company resolution authorising him to act on behalf of respondent. Respondent countered that the affidavit referred to the resolution but failed to upload it to the Court’s IECMS platform when filing their application. Upon realising the omission they filed the resolution via a supplementary affidavit.

The case of Dube v PSMAS 2019(3) ZLR 589(S) settled the law with regards to representation of corporates in court. When challenged to do so a company representative must produce the company resolution authoring him to act for the corporate. Respondent has since filed the resolution (through its supplementary affidavit) authorising the deponent T. Mzondiwa to act on behalf of the company in court. The point in limine cannot avail.

RESPONDENT:

A. That the application is fatally defective for failure to attach a valid draft application for review:

The point is expatiated in respondents opposing affidavit thus,

“4.1….Rule 22(2) of the Labour Court Rules, 2017, mandates that an application for condonation of the late filing of a review application must be accompanied by a copy of the draft review application. The failure to comply with this requirement renders the application not only incomplete but also fatally defective. The absence of the draft review application prevents the Court from considering the application in its entirety.

4.2.2. Assuming, without conceding, that the face of the application for review is only what Rule 22(2) contemplates, the document attached is, in essence, a nonentity. It is vague and embarrassing. It is marred by multiple handwritten annotations and merely reproduces the grounds for review verbatim from section 92EE of the Labour Act (Chapter 28:l01), without establishing any connection to the facts or circumstances under-pinning Applicant’s review relief.

4.2.3 Furthermore, the relief as contained on the face of the review notice is incompetent, as it ambiguously prays for both reinstatement and a rehearing of the disciplinary proceedings – reliefs which are mutually exclusive and not at all aligned with the grounds presented.”

Applicant’s heads of argument countered that,

“7.1 This point is not taken with the bona fide intention. It must be noted that a draft is there to show the grounds that applicant ought to rely on and those will be explained in the main argument.

7.2 Applicant has filed a draft review as per the requirement highlighting the grounds she intends to rely on in her main application which is proper.

7.3 The main purpose of an application for condonation is to explain to the Court why an applicant defaulted and need for pardon not to have the Court deal with the main application.”

ANALYSIS

Rule 22 of the Court’s Rules provides that;

“(1) A party wishing to apply for condonation of the late noting of an appeal or review shall do so in form LCI.

(2) An application in terms of this rule shall be accompanied by a draft of the intended notice of appeal or review.”

The prescribed notice of review appears in form LC5 in the schedule to the Court’s Rules. The substantive or critical part of the form require an applicant to state the grounds for review in ‘concise and precise’ terms. It further requires an accompanying affidavit setting out ‘the basis of your opposition.’ The grounds set out in casu are cast in broad general terms. No accompanying affidavit sets out the basis of the opposition. The Court is persuaded by respondent’s argument that the grounds for review are vague and embarrassing. They do not inform the Court or the respondent of the actual case respondent intends to bring.

B That applicant failed to exhaust domestic remedies:

Respondent’s opposing affidavit stated

“6.2 According to Respondent’s Code of Conduct, after a disciplinary hearing, an employee enters the Appeal Procedure through which they may address any dissatisfaction with the disciplinary committee’s decision. I draw the Court’s attention to RTT-A, a copy of the Respondent’s Code of Conduct, where on page 18 of 20 thereof, the internal appeal process is outlined, detailing both its substantive relevance and the procedural steps to be followed.

6.3 Applicant has, however, failed to engage this internal process. Instead of allowing the internal appeal procedures to unfold, Applicant hastened to the Court. There is an irony in this matter as a result of this. It is twofold: while the application is stale due to Applicant’s inordinate delay in seeking a review, it is also prematurely before this Court because Applicant did not first avail herself of the internal appeal process. Respectfully this rash filing undermines the purpose and integrity of the process designed to address such grievances.”

Applicant’s heads of argument replied that

“9.1 It is submitted that in an application for review there is no need for internal procedure, an aggrieved party is expected to directly approach the Court after after the proceedings which he/she wants reviewed.

9.2 It is submitted that the referred code of conduct does not have any provision for internal review hence it is not applicable.

9.3 Even if it were to be held that Applicant ought to have exhausted the internal remedy that could not have been possible as the Managing Director who is the last appeal authority is the one who chaired the proceedings applicant wants reviewed.”

ANALYSIS

The applicable Employment Code is filed of record. The relevant part reads as follows

“The Appeal Procedure

An offender has the right to appeal against a written warning, a final written warning or dismissal. An appeal should be made in writing on an Appeal Form (Annexture 7) no later than five (5) working days after the day on which the penalty was imposed. The offender must hand the completed Appeal Form to the HR, Department. The HR Department will hand this form to management who will appoint an Appeal Chairman. The Appeal Chairman will be more senior than the Chairman who presided over the Disciplinary Hearing. The Appeals Chairman will arrange a hearing within 10 days of the date of receiving the application for an appeal…

Apparently, the Code provides an internal appeal against dismissal In casu  applicant argued that her disciplinary hearing was presided over by the Managing Director who is the ‘last appeal authority’ at the workplace. Respondent insisted that applicant ought to have utilised the appeal procedure despite her reservations as regards its utility.

The Court is persuaded by applicant’s argument. T. Mzondiwa who presided over the disciplinary hearing deposed the opposing affidavit wherein he stated that he is the Managing Director. So apparently there is no higher authority at the workplace to act as Appeal Chairman in terms of the Code. Therefore applicant is entitled to seek recourse outside the workplace.

CONCLUSION

The foregoing analysis shows that the respondent’s 1st point in limine was well-taken. As a result the application ought to be struck off.

Wherefore it is ordered that

The application for condnation be and is hereby struck off as a nullity; and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E