Ignatio Kudawashe Mhene v Judicial Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/269/25
HARARE, 6 MAY 2025
CASE NO. LC/H/56/25
AND
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/269/25 HARARE, 6 MAY 2025	CASE NO. LC/H/56/25

AND

30 JULY 2025

IGNATIO KUDAWASHE MHENE	APPLICANT

JUDICIAL SERVICE COMMISSION	RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	K. Mabaudi, Attorney

For Respondent	G. Sithole, Attorney

MUSARIRI, J:

Applicant applied for leave to appeal this Court’s judgement LCH 511/24 to the Supreme Court. The application was made in terms of Section 92F of the Labour Act Chapter 28:01 as read with Rule 43 of the Labour Court Rules, 2017. At the onset of oral argument respondent raised 2 (two) points in limine which applicant opposed. The points shall be dealt with ad seriatim.

That the draft notice of appeal is fatally defective:

The point is expatiated in respondent’s opposing affidavit thus

“6.2.1 Firstly, Applicant’s proposed grounds of appeal are fatally defective in that they are incomplete and vague. They do not particularise the basis for the complaints being made. It is unclear whether the grounds seek to attack factual findings or legal findings. This is in violation of Rule 59(3)(c), as read with Rule 44, of the Supreme Court Rules, 2018 which requires that the grounds of appeal must be concise and precise. I submit in this case that the grounds of appeal are fatally defective thereby rendering the Application for leave to appeal a nullity.

6.2.2 Secondly, the relief sought in the draft notice of appeal is also fatally defective in that it does not comply with the requirements of Rule 59(3)(d) of the Supreme Court Rules which demands that the relief sought must be exact in nature. The relief sought by the Applicant is defective in that it does not contact a substitutive order.

6.3 I submit further that, where the intended appeal is fatally defective, the Application for leave to appeal itself is also fatally defective. It ought therefore, to be struck off the roll with costs.”

The Applicant’s heads of argument countered that,

“4. The Respondent further avers that the Grounds of Appeal are not concise precise as directed by Rule 44 of the Supreme Court Rules 2018. This again is incorrect … In fact the grounds are straightforward and to the point.

8…what is pertinent is the following:

Firstly the two Grounds of Appeal invite the Court to interrogate the truth and justice of the Applicant’s case, to analyse as to whether the Respondent’s conduct aligns with the dictates of the law;

Secondly, the two Grounds of Appeal question what the law is and on what basis the Respondent proceeded in the way in which it did;

Thirdly, the two Grounds of Appeal form questions which fall within the province of the Judge.

13…However a reading of Rule 59(3) of the Supreme Court Rules, 2018 does not mention the need for a substitutive order. All that is required is for the relief to be exact, which is what the Applicant has adequately provided in the Relief Sought…”

The draft grounds of appeal are duet as follows;

“1. The Labour Court misdirected itself by deciding that the Appellant had delegated his duties as a Regional Magistrate to a Provincial Magistrate.

The Labour Court erred at law by deciding that the Respondent could withhold the Appellant’s salary instead of recovering it.”

The 1st ground raises a factual issue as to whether the applicant, as a Regional Magistrate delegated his duties to a Provincial Magistrate. Further the ground does not state how the Court misdirected itself in making the finding. It leaves this Court, the Supreme Court and the Respondent unsure of the precise case the appellant intends to argue in the Supreme Court.

The 2nd ground is couched in conclusory terms. It states that the Labour Court erred in deciding that the Respondent could withhold Appellant’s salary. In its judgement the Court cited the statutory provisions it based its decision upon. Yet Applicant does spell out why the Court allegedly erred in relying on those provisions. The Respondent is at sea as to what case

he must prepare to deal with on appeal. The Court is satisfied that the draft grounds of appeal do not meet the ‘clear-and-concise’ standard required by Rules 51(1) and 65(3)(c) of the Supreme Court Rules,2025.

The prayer in the draft notice of appeal reads thus

“Wherefore, the Appellant prays for relief in the following terms:-

The present appeal be and is hereby allowed.

The conviction on Charge 3 in the proceedings held on the 1st of August 2024 between the Appellant and the Respondent be and is hereby set aside.

The Respondent shall pay the full salary, allowances and benefits of the Appellant for the period from the 31st of May 2024 to the 23rd of August 2024.

The Respondent shall pay the Appellant’s costs of suit.”

The order rightly prays that the appeal be allowed but it fails to pray for the setting aside and substitution of the Labour Court’s order. As it is the Labour Court’s order is left intact in contradiction to the relief sought. Simply put that relief sought is incomplete and incompetent

See	Ndlovu  v Ndlovu SC 133/22 Per Malaba CJ

“If the appeal is allowed the judgement or decision appealed against iS then set aside and a new order is substituted in its place. In this case it was not known what order the appellants wanted this Court to make in the event the appeal succeeded….As the notice of appeal which purported to institute this appeal was incurably defective, there was no appeal before the Court.”

By parity of reasoning it is concluded in casu that the draft of notice of appeal is incurably defective thus rendering the application for leave, a nullity.

Wherefore is s ordered that

The application for leave to appeal be and is hereby dismissed’; and

Each party shall bear its own costs.

J-U-D-G-E