Kays Chibvongodze v Twenty Seven Montagu Villas (Private) Limited & B Hwachi N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NOLC/H/347/24
HELD AT HARARE 10 JULY 2024
CASE NO LC/H/601/24
AND
In the matter between
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==============================IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 10TH JULY 2024

AND

In the matter between

KAYS CHIBVONGODZE

And

TWENTY SEVEN MONTAGU VILLAS (PRIVATE) LIMITED

B HWACHI N.O.

1ST RESPONDENT

2ND RESPONDENT

BEFORE THE HONOURABLE MAKAMURE, JUDGE

IN CHAMBERS

MAKAMURE J:

This is an appeal against a determination of the second respondent dismissing the appellant’s claim for underpayment by the 1st respondent. The appellant also filed a review against the 2nd respondent’s determination. The matters are unopposed. I have written this judgment simply to clarify the provisions of the relevant rule of this Court.

Rule 19 of the Rules of this Court, Statutory Instrument 150 of 2017 provides for appeals and reviews as follows:

19. Appeals and cross appeals

(1) A person wishing to appeal against any decision, determination or direction referred to in the Act, shall, within twenty-one days from the date when the appellant receives the decision, determination or direction or award, do the following—

(a) complete in three copies a notice of appeal in Form LC 4; and
 (b) make three copies of any of the documents referred to in subparagraphs (i) to (iv) as are relevant to the appeal, if they are in the possession of the appellant—

(i) the record of any charge or allegation of misconduct that was served on the appellant, if any;

(ii) the minutes or record of any proceedings or hearing undertaken to inquire into any charge against or allegation of misconduct on the part of the appellant;

(iii) a minute or record of any decision, determination, direction or award made at the conclusion of anyproceedings or hearing referred to in subparagraph (ii);

(iv) the letter of suspension or dismissal from employment, if any;

(c) deposit with the Sheriff an amount to be determined by the Sheriff as security for costs of service of the notice of set down.

(d) file with the Registrar one of the other copies of the notice of appeal, together with—

(i) a copy of the documents, if any, referred to in paragraph (b);

(ii) proof of payment of the Sheriff’s cos and

(iii) proof (as required by rule 11) that the notice of appeal was served on the respondent;

(e) serve one copy of the notice of appeal, together with a copy of the documents, if any, referred to in paragraph (b), on the respondent within ten days of; and

(f) retain a copy of the notice of appeal, and of the documents, if any, referred to in paragraph (b), for himself or herself.

(2) …

(a) …

(b)…

(c) …

(d) …

(e) …

(f) …
 (3) A person making an appeal under this rule who also wishes to seek a review of the proceedings in respect of which he or she makes the appeal shall, at the same time, complete in three copies of a notice of review in Form LC 4 and serve such notice together with the notice of appeal under this rule.’(My underlining for emphasis)

In the present matter the appellant did not comply with provisions of R19(3) when they applied for review. The rule envisages two distinct matters, that is an appeal and a review separately set on two separate forms that is ‘at the same time, complete in three…and serve such notice…’. That provision envisages that that two processes can be pursued together but separately to finality and be considered on the same sitting or on separate sittings. This also means that there have to be two separate prayers. One prayer for the appeal and another one for the review application. In the present matter the prayers are indeed separate. This also means that there must be two separate orders, that is, one for the appeal and another one for the review application.

In the present matter the draft order reads:

‘IT IS ORDERED THAT

1. The appeal, being with merit is hereby allowed.
2. The application for review be and is hereby granted and the entire determination by B Hwachi be and is hereby set aside and substituted with the following:
3. The respondent is ordered to pay the appellant US$2 057-54 in underpayment in wages, gratuity and cash in lieu of leave.
4. Alternatively, the matter be remitted back to the Designated Agent for a determination in default of the respondent with specific guidelines.
5. The 1st respondent is ordered to pay the costs of suit.’

The above draft is not in compliance with the rules. Non-compliance with the rules means that the matter is not properly before the Court. **In Chikura & Anor v AL Sham’s Global BVI Limited SC 17/2017** the Supreme Court stated that failure to comply with mandatory provisions will render an appeal a nullity.

In view of the foregoing the matters are not properly before the Court. The following orders are made.

1. The appeal be and is hereby struck off the roll.

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