City of Masvingo v Tawanda Gozo & 2 Ors

### Preamble
IN THE LABOUR COURT OF
ZIMBABWE HELD AT HARARE
8 OCTOBER 2025
JUDGMENT NO. LC/H/408/25
CASE NO. LC/H/240/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 8 OCTOBER 2025

AND 23 OCTOBER 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/408/25 CASE NO.	LC/H/240/25

CITY OF MASVINGO	APPLICANT

AND

TAWANDA GOZO	FIRST RESPONDENT MINISTRE OF LOCAL GOVERNMENT &

PUBLIC WORKS	SECOND RESPONDENT

CHAIRPERSON LOCAL

GOVERNMENT BOARD	THIRD RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Advocate T. Zhuwarara With Mr. D. Mujaya

For First Respondent	Ms. L. Mhasho No Appearance for Second and Third Respondents

MURASI J.,

This is an application for leave to appeal to the Supreme Court in terms of section 92 F (2) of the Labour Act (Chapter 28:01) and Rule 43 of the Labour Court Rules, 2017.

Background

First Respondent was employed by the Applicant as the Director of Engineering Services. Allegations of misconduct were levelled against First Respondent which led to firstly, his suspension, and his appearing before a Disciplinary Committee. The said committee found the

First Respondent guilty and recommended his dismissal. As is required when a council senior official is dismissed, the Local Government Board, Third Respondent, has to be approached for approval. The Third Respondent did not approve the decision by the Applicant to dismiss the Third Respondent. Applicant approached the High Court which determined that the decision of the Third Respondent had to be re-visited. This resulted in a re-worded decision which is captured in this Court’s judgment. However, for completeness, it is reproduced, and kit is as follows:

“The Board notes that the High Court case for Eng. T. Gozo was heard on the 7th of December 2023 and using the Court ruling, the Local Government Board (LGB) resolved through resolution number LGB 018/24 to advise Masvingo City Council that using section 123 (1) (c ) of the Urban Councils Act, (Chapter 29:15), the LGB does not approve the dismissal of Engineer T. Gozo from his position as Director of Engineering Services for Masvingo City Council.”

The First Respondent reported at Applicant’s workplace in light of the that decision but he was turned back. First Respondent approached this Court for a Declaratory Order to confirm that where the Third Respondent determines that a ‘dismissed’ employee has to remain in employment, that decision should bind the employer who should take back the employee. This Court granted the said Order.

The Present Application

Applicant intends to approach the Supreme Court on appeal. The prospective grounds of appeal are couched as follows:

The Court a quo erred in assuming jurisdiction to grant a declaratory order despite lacking the requisite statutory authority. The Labour Act circumscribes the Court a quo’s jurisdiction and such Act does not confer the power to issues declaratory relief, a function vested exclusively in the High Court.

The Court a quo also misdirected itself by relying on obiter dicta of this Court to support the contention that it possessed the power to grant declaratory relief. Contrary to established jurisprudence, the aforesaid Court improperly extended its jurisdiction, erroneously concluding that it could issues declaratory relief in the manner advanced by the 1st Respondent.

Additionally, as a creature of statute the Court a quo lacked inherent jurisdiction and was confined to adjudicating matters expressly provided for in the Labour Act. By purporting to opine on the effect of the 3rd Respondent’s decision, the said Court transgressed its statutory limitations and improperly encroached into administrative law matters beyond its judicial remit.

The Court a quo erroneously determined that the 3rd Respondent’s refusal to approve the Appellant’s dismissal of the 1st Respondent automatically reinstated the said 1st Respondent. Such determination was anomalous in that it disregards fundamental labour law principles, which require a valid review or appeal to overturn a dismissal. Absent such

a challenge, the 1st Respondent’s employment status remained unchanged, rendering his application for declaratory relief legally untenable.

Preliminary Issue

At the commencement of the proceedings, Ms. Mhasho stated that she had a preliminary point to raise in the Applicant was approaching the Court with dirty hands. She submitted that both the Third Respondent and the Court had affirmed First Respondent to be Applicant’s employee, but Applicant had insisted that he no longer was its employee. She further submitted that Applicant had chosen to defy the decisions and had not applied for any variations. In this respect, reliance was heard to Econet Wireless (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare 2016 (1) ZLR 268 (S) and she also stated that the case of CFI Retail (Pvt) Ltd v Manyika 2016

(1) ZLR 122 (S) which was sought to be relied upon by the Applicant was distinguishable as it related to an arbitral award and not a court order.. She further argued that there was no provision of the suspension of the court order pending the application for leave to appeal and that Applicant was seeking to be adorned with the discretion of the Court without complying with an order which was extant.

In response, Advocate Zhuwarara stated that what First Respondent had requested from the Court was a declaratory order but had not asked for consequential relief which could have been utilised a basis for the claim for contempt of court. He added that the order did not call on the Applicant to do anything and therefore it could not be stated that there was defiance of an order of court. He submitted that where an applicant sought leave and the order was not suspended, another litigant could not allege dirty hands and thus take away another litigant’s right to appeal. He referred to the CFI case (supra) and Zimrock International (Pvt) Ltd Kabubi 2017 (1) ZLR 95 (S).

The Court stated that the decision on the preliminary point raised would form part of the main judgment. The following is the decision.

It is common cause that when litigants approach the courts, they invariably seek relief to any dispute that may be existing between them. Such a decision granted by a court should be binding on the parties because of the nature of the decision. The decision has authority until and unless it is set aside.

In Hadkinson v Hadkinson [1952] 2 All ER 567 (CA), it was held as follows:

“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of the obligation is shown by the fact that it even extends to where the person affected believes it to be irregular or even void.”

It has been argued on behalf of the Applicant that the Order by the Court lacked consequential relief which could have been used as the basis for claiming contempt proceedings. It is common cause that First Respondent sought the confirmation of the decision of the Local Government

Board that he remained Applicant’s employee. This is what the Court confirmed. The effect of the ruling was to state that First Respondent was part of Applicant’s number of employees. For Advocate Zhuwarara to state that no consequential relied was sought is an attempt at splitting hairs. The resultant relief for such an order must be clear to any and every reasonable person.

There was argument by Advocate Zhuwarara that if the dirty hands application was to be upheld, the Applicant would have been denied access to appeal against the Court’s decision. I believe such a situation revolves around the status quo of a matter where an appeal has been lodged. Section 92 F does not provide for such a situation. In casu, Applicant has not yet lodged an appeal with the Supreme Court and is still at the stage of applying for leave to appeal. A denial of the application for leave to appeal does not, in terms of the section 92F, leave the Applicant hamstrung. There is provision to approach the Supreme Court for leave to appeal. In the absence of statutory provision that deals with such a situation, recourse must be had to the common law. Applicant cannot therefore allege that it cannot comply with the Court Order as it still needs to pursue its appeal prospects. The fact is that there is no appeal pending before the Supreme Court and therefore no suspension of the Court Order follows. The remarks made in South Cape Corporation (Pty) Ltd v Engineering management Services (Pty) Ltd 1977 (3) SA 534 (A) would apply.

Evidently, Applicant remains defiant and will not abide by any orders. As prayed for by the First Respondent, this would be a proper case to withhold the Court discretion in dealing with the matter until the Applicant purged its contempt. I should add that in the Court’s judgment, the Court issued a warning to Applicant concerning this attitude and the Court referred to precedent from the Constitutional Court.

However, for the sake of completeness, I will deal with the merits of the application.

Submissions by the Parties

In submissions, Advocate Zhuwarara stated that he would rely on the heads of argument filed of record. He further stated that he would also rely on the remarks of GILLEPSIE J in Pichanick

N.O. v Patterson 1993 (2) ZLR 163 (HC) where it was stated that leave to appeal will be granted where there are reasonable prospects of success and the matter is substantial importance. On the issue of substantial importance, Advocate Zhuwarara submitted that the Superior Courts had dealt with the issue of the jurisdiction of the Labour Court to issue declaratory orders. He added that the earlier decisions from those courts determined that the Labour Court did not have jurisdiction to issue declaratory orders. He further stated that later decisions from the same court stated that the Labour Court had jurisdiction to issue declaratory orders. His further argument was that the later decisions had not sought to distinguish the earlier decisions and that it was in light of this position that the Supreme Court should be asked to resolve the issue.

The Founding Affidavit contains the following averments:

“para 15.1. The Court erred in law by assuming jurisdiction to grant a declaratory order despite the clear absence of such authority in the Labour Act (Chapter 28:01). Section 89

of the Labour Act expressly defines the jurisdiction of the Labour Court, and it does not confer the power to issue declaratory orders. Only the High Court has exclusive jurisdiction under Section 14 of the High Court Act to grant declaratory relief, and the Labour Court cannot read into s 89 of the Labour Act this power.”

And at para 16.4:

“It will also be argued that this Court misdirected itself by concluding that the Local Government Board’s refusal to approve the dismissal of the 1st Respondent automatically meant that he remained an employee of Applicant.”

The heads of argument address the issue of prospects of success on appeal and reliance is had to several cases such as Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S). The same heads of argument made submissions on the fact that the Court erroneously relied on obiter dicta in the cases cited in the judgment. It was further submitted that the Labour Court lacks inherent power to hear matters beyond the scope of that provided in section 89 of the Act. It was further arged as follows:

“The judgment in City of Mutare v Matamisa 1998 (1) ZLR 512 (S) upon which the Court relied, does not establish that non-approval of a discharge results in automatic reinstatement. In reaching its conclusion the Court ignored the fact that employment relationships are governed by contractual and labour law principles, and a dismissal remains valid unless set aside on review or appeal.”

In response, Ms. Mhasho submitted that in such applications, an applicant has to show that there are real prospects of success on appeal. She submitted that the present matter was a straightforward labour matter which the Applicant wanted to be moved into the realm of administrative law. She stated that the Court had acted within the scope of the Constitution and the Labour Act. She further submitted that the High Court has no jurisdiction over purely labour matters and stated that this was confirmed in Triangle (Pvt) Ltd v Ernest Eston and Others HH189/25. Ms. Mhasho stated that the Judge in the above cited case had declined jurisdiction to grant a declarator stating that the High Court lacked jurisdiction in a purely labour matter which jurisdiction was bestowed on the Labour Court by section 89 (6). She also stated that there were no prospects of success as the Supreme Court had already dealt with the matter.

In the heads of argument, the following assertion was made:

“That approach must be regarded as our law in this regard. Our law therefore is that the prospects of success that must be established are reasonable prospects that the appeal court will reverse or materially alter the judgment of the court a quo if leave is granted.” (para 11.)

Those same heads of argument cited Chombo v NPA & Another CCZ 8 22 where it was stated that an interesting case or arguable case is not the requisite criterion and therefore fails to ‘clear

the bar’. It was argued that there were no prospects of success and that the application should be dismissed with costs on a higher scale.

ANALYSIS

Appeals from this Court to the Supreme Court are only competent if they raise a point of law. This is a trite position at law that is provided in section 92 F of the Labour Act (Chapter 28:01) which specifically provides that an appeal shall lie to the Supreme Court from any decision of the Labour Court only on a question of law. What constitutes a question of law for the purposes of section 92 F of the Act has been defined in a number of cases, some of which have been referred to by both parties in submissions. It has been stated that the term ‘question of law’ is used in different forms which are clearly articulated in decided cases. MAKARAU JA (as she then was) had this to say in Zimbabwe Institute of Management v Roderick Nhamo Kadungure SC 115/20:

“It is my understanding from the above authorities that broadly speaking, an appeal from the Labour Court to this Court is competent only if it questions what the law has said in other binding cases on the issue to be determined, presumably in matters where the court has discretion, or questions what the law is on the specific issue or issues raised in the appeal or attacks the decision a quo on the facts as being irrational. The remit of this court in determining appeals from the court a quo is therefore fairly narrow.

Put differently, the broad position of the law is that an appeal from the court a quo to this Court must call upon this Court to determine and pronounce on the correct and true rule of law on the matter in dispute or, if based on the facts of the matter, to set aside the decision as being irrational. It cannot invite this court to revisit the entire dispute and exercise a fresh discretion in the matter.”

I understood Advocate Zhuwarara to have toned down the request to the Court to the issue of Substantial Importance. This is not to say that he intimated that he abandoned what he had submitted in the heads of argument. I say ‘toned down’ because he acknowledged the impact of the cases that were cited in the Court’s judgment as coming from the Supreme Court. His concern, as I understood it, was that he wanted the same Supreme Court to indicate how the earlier cases should be regarded. His stance was that the later decisions were made without distinguishing the earlier cases. It is my considered view that where a Superior Court has made a determination about a particular issue in a decision, it cannot be asked to make a clarification of the same legal position in another decision. Clearly, that does amount to raising a point of law as the legal position is known.

This brings me to the first prospective ground of appeal. In its judgment, this Court referred to the case of TN Harlequin Luxaire Limited v Mberikunashe Masvimbo & 14 Ors SCB 84/22. The pertinent founding is given in the following manner:

“I make this point to emphasize that even in the absence of the Nhari v Mugabe (supra) matter, the view of this Court would have been to uphold the Labour Court’s exclusive jurisdiction in employment and labour matters.”

It is unfortunate that Applicant chose to refer to such a statement as obiter. The above statement from the Supreme Court is harvested from both the Constitution and the Labour Act itself. Section 172 (2) of the Constitution provides:

“(2) The Labour Court has such jurisdiction over matter of labour and employment as may be conferred upon it by an Act of Parliament.

(3) Ac Act of Parliament may provide for the exercise of jurisdiction by the Labour Court and for that purpose may confer the power to make rules of court.”

Section 89 (6) of the Labour Act, (Chapter 28:01) provides:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

Section 2A (3) of the Labour Act provides:

“(3) This Act shall prevail over any other enactment inconsistent with it.”

The Act gives exclusive jurisdiction to the Labour Court in the first instance in every matter concerning labour and employment. This means that no other Court has jurisdiction. Reference has been made by the Applicant to section 14 of the High Court Act as giving the High Court ‘inherent jurisdiction’ over all matters. Clearly, this collides with section 89 (6) of the Labour Act if taken to its logical conclusion. That is where section 2 A (3), referred to above, comes in. This caused GARWE JA (as he then was) to comment as follows in Stanley Nhari v Robert Gabriel Mugabe & Ors SC 161/20:

“It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

I reach the conclusion therefore that the High Court does not in fact enjoy the jurisdiction to deal with each and every civil criminal matter in Zimbabwe. Whilst it has original jurisdiction to deal with such matters, such jurisdiction has been fettered and truncated by the Constitution itself which has made provision for the creation or specialised courts whose jurisdiction may, in the process, out the jurisdiction of the High Court in specific areas.”

The above sentiments, emanating from the Supreme Court, coupled with the provisions in section 2 A (3) of the Labour Act puts paid to the argument from the Applicant that the High Court is endowed with jurisdiction to entertain declaratory order applications in employment and labour matters.

Ms. Mhasho, first Respondent’s legal practitioner, referred the Court to a recent judgment by MANYANGADZE J in Triangle (Pvt) Ltd v Ernest Eston & Ors HH189/25. Coincidentally Advocate Zhuwarara was appearing for the Applicant wherein an application for a declarator was the issue. In declining jurisdiction, the Learned Judge had this to say:

“The question of the exclusive jurisdiction of the Labour Court over labour matters has now been settled.

This case (Nhari v Mugabe) puts to rest the debate on the exclusivity of the Labour Court’s jurisdiction in labour matters, and the jurisdictional exclusivity of other courts in specialised areas of the law.”

That Court declined to exercise its jurisdiction to grant the Applicant in that case a declaratory order stating the issue of the exclusive jurisdiction of the Labour Court was ‘now settled’. However, Advocate Zhuwarara and the present client would want to approach the Supreme Court to be heard on a ‘settled matter’. What the decisions of the Supreme Court show is that the Nhari v Mugabe (per GARWE JA) was in 2020 whilst the TN Harlequin matter was in 2022. Both cases speak to the exclusive jurisdiction of the Labour Court in employment matters. The High Court, where Applicant maintains should hear the application for a declaratory order, in 2025 declines jurisdiction stating that it is ‘settled’ that the jurisdiction resides in the Labour Court. The Supreme Court has already determined the issue that Applicant seeks to be brought to that Apex Court. Can it seriously be affirmed that there are any prospects of success on this ground? I think not.

The second ground of appeal makes the averment that the Court unnecessarily relied on obiter dicta in arriving at its conclusion. I am of a different view. The statement from the Apex Court cannot be termed obiter dicta when pronouncing on a material issue affecting the jurisdiction of lower courts. This is what the Court had to say:

“I make this point to emphasize that even in the absence of the Nhari v Mugabe (supra) matter, the view of this Court would have been to uphold the Labour Court’s exclusive jurisdiction in employment and labour matters.”

I do not think any further attention should be given to this point.

The third ground of appeal clearly lacks merit. This Court’s judgment outlined the provisions of the Labour Act which brought the First Respondent within the jurisdiction of the Court as provided in the Labour Act. That First Respondent was in the employ of the Applicant is common cause. That First Respondent was dismissed from such employment pursuant to a Disciplinary Committee hearing is further common cause. That First Respondent is not ousted from the provisions of the Labour Act was outlined in the judgment. This therefore means there was an employer/employee relationship between the parties. It then boggles the mind to hear Applicant term this relationship to be administrative in nature. There is no merit in the ground of appeal.

The fourth ground of appeal should not detain the Court. I am of the view that this ground of appeal does not arise out of a misreading or misunderstanding of the Matamisa decision, but an intention to refuse to accept a simple fact set out in the precedent. For the avoidance of doubt, I will reproduce the pertinent portion of the binding decision in the aforementioned case. It was stated as follows:

“It is the council which decides to discharge. If the discharge is not approved, the decision of the council fails. The discharge by the council is subject to the resolutive power of the Local Government Board.”

There is no ambiguity in the above statement requiring special interpretation. If the Local Government Board does not approve a discharge, the employee remains in the employ of the said council. The Applicant has not made any averment that this binding decision has been overruled by the same Supreme Court. There is therefore no merit in this ground of appeal.

I now turn to the issue of costs. First Respondent has requested that there be an order of costs on a legal practitioner/ client scale due to the litigation which the First Respondent has had to endure whilst Applicant refuses to take him back as an employee. After the decision of the Local Government Board, Applicant took its matter to the High Court. Thereafter, First Respondent sought a declarator from this Court which was granted. Applicant has shown disgruntlement with this outcome and intends to approach the Supreme Court on appeal. It appears both parties have had their fair chance of approaching the Court for relief. It is my view that an order for punitive costs would be inappropriate in the present circumstances.

The application ought to be dismissed. The following order is appropriate.