Jealousy Rwizi v Mercy Dare N.O. and Tower Construction

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/40/2021
HARARE, 20 AUGUST 2020
CASE NO. LC/H/REV/12/19
AND 9 APRIL 2021
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/40/2021

HARARE, 20 AUGUST 2020 				CASE NO. LC/H/REV/12/19

AND 9 APRIL 2021

In the matter between:

JEALOUSY RWIZI							APPLICANT

versus

MERCY DARE N.O.						1ST RESPONDENT

TOWER CONSTRUCTION					2ND RESPONDENT

Before The Honourable Makamure J

For the Applicant			: Mr A. Masango (Legal Practitioner)

For the 1st Respondent		: No appearance

For the 2nd Respondent		: No appearance

MAKAMURE J:

Rule 25 of the Rules of this Court, Statutory Instrument 150 of 2017 (The Rules) provides for representation of parties, assumption and renunciation of agency. The Rule provides as follows:

“25 (i)	Where a party –

(a)	…

(b)	is represented by a company official, they shall produce a company resolution or letter of

appointment authorizing them to represent the party;…”

On 5 February 2020 this court postponed this hearing to enable a Mr Mutomba, who said

he was authorized to appear on behalf of the second respondent, to comply with the provision quoted above.

The 1st respondent appeared in person. The court also tasked the first respondent to verify whether her documents included a certificate of no settlement.

When the matter resumed on 9 June 2020, there was no appearance on behalf of the 1st respondent. Mr Mutomba came but he had no resolution from the 2nd respondent authorizing him to appear. He sought to appear without the necessary authority. This means that he had no right of audience as he had not complied with the provisions of R 25 (1) (b) of the Rules. The matter was thereafter treated as an unopposed.

This is an application for review. The grounds for Review are that and I quote:

“1.	1st Respondent proceeded to make a ruling against Applicant without issuing a certificate of no settlement and calling for submissions from Applicant.

2,	The 1st Respondent erred in ruling which ruling is so outrageous in its defiance of logic by dismissing a claim for arrear salaries on the basis of lack of evidence yet Applicant legally does not keep records by the 2nd Respondent (sic) keeps records of salaries.

3.	1st Respondent grossly erred by dismissing a claim for notice pay yet 2nd Respondent through its action had repudiated the contract of employment.

4.	Wherefore Applicant prays that the ruling be set aside.”

The draft order is as follows:

“1.	The ruling by the Respondent dated 15 February 2019 be and is hereby set aside.

2.	The 2nd Respondent be ordered to pay Applicant US$21 000-00 being arrear salaries

for June 2014 to May 2017.

3.	The 2nd Respondent be ordered to pay US$1 800-00 being notice pay.

4.	The 2nd Respondent be ordered to pay cash in lieu of leave in the sum of US$1 800-00.

5.	Respondents pay costs of suit.”

The purpose of review proceedings is to scrutinize whether or not there are any procedural irregularities as envisaged by section 92EE of the Labour Act [Chapter 28:01] (The Act). I think that the grounds substantially speak to the alleged irregularities committed by the 1st Respondent. The remedy for this is that such irregularities be corrected. This is in accordance with the principle set out in the case of Dalny Mine v Banda 1999 (1) ZLR 220.

This means that the draft order must speak to that remedy. Paragraphs 2 – 4 of the draft do not speak to correction of the procedure. They are therefore not properly before the court.

The purpose of the Act is among other things to ensure speedy resolution of labour related disputes. In view of the Draft which I have already commented upon, I am inclined to strike the matter off. However, as already noted, the Act envisages, among other things, the speedy resolution of Labour disputes. Therefore, instead of striking the matter off and asking the applicant to re-do the draft, I am of the considered view that since paragraph 1 of the Draft is in order, there is no prejudice to be suffered by the parties if an order upholding the first paragraph of the Draft is upheld. This will facilitate finality to litigation. (See Joseph Lungu and Others v Reserve Bank of Zimbabwe SC 1/17).

In the result the application for review succeeds and the following is ordered.

1.	The application for Review be and is hereby granted.

2.	The Draft Ruling by the 1st Respondent dated 1st February 2019 be and is hereby

set aside.

3.	The matter be and is hereby remitted to the 1st Respondent for the 1st Respondent to hear and determine the matter in a procedurally correct manner and thereafter issue a draft ruling as envisaged by section 93 (5) of the Act.

4.	There is no order as to costs.

Muronda, Malinga, Applicant’ Legal Practitioners