Etiwel Mutero v Rockford College

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/221/25
HARARE, 10 JUNE 2025 AND
19 JUNE 2025
CASE NO LC/H/284/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/221/25

HARARE, 10 JUNE 2025 AND

19 JUNE 2025

ETIWEL MUTERO

ROCKFORD COLLEGE

CASE NO LC/H/284/25

APPLICANT

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant

For Respondent

- E. Mutero, Applicant

- I. Mazani, Respondent

MUSARIRI, J:

On 5th March 2025 at Marondera Designated Agent T. Chamisa issued a determination

which ordered respondent to pay applicant US$1, 525.00 as terminal benefits but dismissed the claim of under-payment. Applicant then filed the present application for the review of the determination in terms of Section 89(1) d1 of the Labour Act Chapter 28:01. Respondent opposed the application.

At the onset of oral argument the both parties raised points in limine. The points shall be addressed in turn.

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JUDGMENT NO LC/H/221/25 CASE NO LC/H/284/25

Applicant

The point is set out in applicant’s heads of argument thus;

“1a. The respondent used a wrong form. He used LC 3 instead of LC 2 form and therefore

this matter should be treated as an unopposed matter.”

Respondent countered that his use of form LC 3 is consistent with the contents of the prescribed form.

Rule 20 provides that

“(2) The respondent shall, within ten days of receiving a notice of review-(a) complete in three copies a notice of response in Form LC 2;

However the first paragraph in Form LC 2 reads as follows:

“Take notice that the Respondent intends to respond to the appeal.”

It is clear that Rule 20 intended to refer to Form LC 3 which references ‘the application/review.’

Alternatively this is a case where the interests of justice compel a departure from the Rules as provided in Rule 32.

Accordingly this point in limine stands to be dismissed.

Respondent

Respondent raised a number of points in limine. However the critical point is spelt out in its heads of argument as follows;

“18. An application for review is made using Form LC 5. In casu the Applicant invented his own form which he utilized to lodge his application. He did not use Form LC 5.”

In his heads of argument, applicant countered that

“1(c): Page 1 of my application for review is my form LC 5 stipulated in Labor Court Rules

SI 150 of 2017. The respondent argues that my Form LC 5 is wrongly worded but Rule 47 2

JUDGMENT NO LC/H/221/25 CASE NO LC/H/284/25

says the forms can be modified subject to acceptance by the Registrar. In this case the

Registrar accepted my modification of that form and approve my application as complying with the rules. This court is requested to ignore the Form Label LC 4 Annexture A. it was wrongly placed there.”

Rule 20(1) (a) states that an application for shall be made in Form LC 5. A comparison of Form LC 5 and the application in casu shows that applicant omitted the critical penultimate paragraph which should read;

“Further take notice that if you wish to oppose the application you are required to file a Notice of Response together with an opposing affidavit setting out the basis of your opposition within ten (10) working days.”

That portion informs a respondent of his right to file opposing papers within the set period.

Omission of the paragraph renders the application anullity. TheCourt is fortified in this conclusion by the dicta in the case of;

Veritas v ZEC SC 103/20

Per Gowora JCC at Para (35)

“… there was no attempt to give notice to the respondent of what was required of them to oppose the application. The form excludes those fundamental elements upon which are material for the purposes of giving notice to a respondent of his rights as regards the application. It did not state the dies induciae operating against the respondent for purposes of mounting any opposition …

… I hold that the application is as a result fatally defective.”

Accordingly this point in limine stands to be upheld.

Conclusion

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JUDGMENT NO LC/H/221/25 CASE NO LC/H/284/25

The foregoing analyses shows that the application for review is fatally defective for failure to comply with a mandatory rule of the Court.

Wherefore it is ordered that,

1. The application for review be and is hereby struck off the roll as being fatally

defective; and

2. Each party shall bear its own costs.

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

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