Joseph Shoma v Terrence Mugamu t/a Total Marondera Service Station and The NEC for the Motor Industry

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/306/24
HELD AT HARARE 24TH MAY 2024
CASE NO. LC/H/254/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 24TH MAY 2024

AND

In the matter between

JUDGMENT NO LC/H/306/24

CASE NO. LC/H/254/24

JOSEPH SHOMA	APPLICANT

And

TERRENCE MUGAMU t/a	1ST RESPONDENT TOTAL MARONDERA SERVICE STATION

And

THE NEC FOR THE MOTOR INDUSTRY	2ND RESPONDENT

BEFORE THE HONOURABLE MAKAMURE , JUDGE

FOR THE APPLICANT :  N.T. TSARWE

FOR THE 1ST RESPONDENT: M.B. KASVAURERE FOR THE 2ND RESPONDENT: NO APPEARANCE

MAKAMURE J:

This is a judgment on preliminary issues which were raised on behalf of the 1st respondent where the main matter was an application for review.

The following were the preliminary issues. That the application was defective in that it did not comply with the provisions of R20 of the Rules of this Court and Form LC5; that the grounds for review were not concise and precise; issue estoppel/res judicata in that the applicant was raising an appealable matter in an application for review where such matter had been competently dealt with in terms of a code of conduct. The respondent abandoned two other preliminary issues that is , the question of misjoinder and propriety of the review

application. This was commendable and hopefully curtails proceedings and leads to finality in resolving the matter.

It was argued on behalf of the respondent that the applicant failed to satisfy the requirements of FORM LC5. The form requires that grounds of review be concise and precise. The grounds it was argued, do not speak to the procedural wrongs sought to be impugned. In the result it was submitted that the application was defective and should be struck off the roll . In the alternative it was submitted that should there be any ’ salvageable’ grounds, the Court should strike out the defective grounds. The following are some of the authorities cited on behalf of the 1st respondent :Songono v Minister of Law and Order 1996 (4) SA 384 (ECD);Chikura N.O. & Anor v Al Shams Global BVI Ltd SC17/17; ZIMASCO v Marikano SC6/14; Shamrock Holdings t/a Inyathi Hunters v The Minister of Environment & Tourism N.O. and Two Others SC 21/10.

In response it was argued on behalf of the applicant that the notice must show reasons for the grounds for review. It was also argued in paragraph 12 of the heads of argument  submitted on behalf of the applicant that the respondent was mistaken in adopting the  position that the guidance from the Supreme Court that grounds of appeal should be concise and precise should also apply to grounds for review. It was also argued that the lower tribunal had no review powers. For these reasons it was submitted that the application was properly before the Court. The following authority was cited on behalf of the applicant :Drynan v Magistrate N. Kuture and Another HMT 45/19.

Rule 20 of the Rules of this Court Statutory Instrument 150 of 2017 (S.I. 150/17) requires that a litigant seeking review of proceedings , among other things, ‘complete in three copies , a notice of review Form L.C. 5’…’ (the form) The face of the form requires an applicant to state the grounds for review and ensure that the grounds are concise and precise. In Songono

v Minister of Law and Order (above) the court stated that grounds of appeal must be clear and concise. The court stated further that such grounds must put the respondent and the court in a position to know what applicant’s complaint is. The of clarity of grounds is fundamental, whether they be for review or for appeal. It can therefore not be argued that the authorities referred to deal specifically with appeals and therefore the quality of grounds for review can be in any form set out by the applicant. Such an attitude would lead to chaos in the manner that grounds for review are worded. This is certainly undesirable. This therefore means that authorities guiding parties on how clear grounds of appeal should be , apply with equal force to grounds for review.

In the present matter some of the grounds are framed as follows:

‘The events immediately preceding the disciplinary proceedings brought against Applicant by 1st Respondent on the 17th of January 2020 and the manner in which the disciplinary proceedings were conducted thereafter , reveal corruption, interest in the cause, bias malice and gross irregularity . This is self-evident in that :

When 1st Respondent took over Total Marondera Service Station and its employees from the previous operating licence holder, Applicant held the position of a Supervisor. 1st Respondent immediately demoted Applicant from being a Supervisor to a Forecourt Attendant without any disciplinary proceedings for any misconduct having been brought against Applicant. A Forecourt Attendant called Trymore Nyamwandura took over the position of Supervisor. Trymore Nyamwandura is the son of an Apostolic Faith prophet with whom 1st Respondent fraternizes.

…up to1.9

10.1 (?1.10) When Applicant appealed to 2nd Respondent out of time , the notice of appeal had an application for condonation of late noting of an appeal. The 2nd

Respondent simply ignored this application and proceeded to rule that the appeal

was out of time without addressing the application for condonation.’

The Supreme Court in Simon Chinganga v Munashe Shava and Two Others SC12/22

quoted with approval from Songono’s case (above) as follows :

“ it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent , or if they , in general , fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet.” See also Zimbabwe Anti- Corruption Commission v (1)Gibson Mangwiro (2) Christopher Chisango SC11/2022.

In the present matter the Court would have to go through all the narrations in order to ascertain what amounts to either bias or corruption or any other concerns raised against the conduct of the proceedings. That is undesirable. This is exactly what the authorities discourage. That is the reason why Form LC 5 requires grounds for review to be precise and concise. A look at the grounds for review shows that they are neither concise nor precise. For that reason, the application is not properly before the Court. It was argued in the alternative that if there were salvageable grounds, the Court could strike out those which are not and leave proper grounds. As authorities show, the grounds must be clear. It is not the duty of the Court to go on an exercise to ‘salvage ‘ grounds for review on behalf of the applicant. If there were any clear grounds at all, the respondent ought to have identified them. That way the Court would have been guided with respect to any grounds which the respondent on its part, considered to be properly before the Court. The application for review under the

circumstances is not properly before the court. The application for review has therefore been disposed of through this preliminary issue. TELECEL Zimbabwe (Private ) Limited v Postal and Telecommunications Regulatory Authority of Zimbabwe HH446/15.The application must be struck off the roll. In view of my finding that the matter is not properly before the Court, I find it unnecessary to consider the other issues which the respondent raised.

In view of the foregoing the first preliminary issue is upheld. Accordingly,

IT IS ORDERED THAT:

The application for review be and is hereby struck off the roll.

TADIWA AND ASSOCIATES, APPLICANT’S LEGAL PRACTITIONERS.

SAKALA &COMPANY , 1ST RESPONDENT’S L,EGAL PRACTITIONERS.