Konde Chatambudza v Cimas (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/189/2020
HARARE, 19 JUNE, 2020
CASE NO. LC/H/135/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/189/2020

HARARE, 19 JUNE, 2020		     	     CASE NO. LC/H/135/19

AND 14 AUGUST, 2020

In the matter between:-

KONDE CHATAMBUDZA							Applicant

Versus

CIMAS (PVT) LTD								Respondent

Before The Honorable L. Hove, Judge:

For Applicant:				Mr N. Chikono (Ngarava Moyo & Chikono)

For Respondent:				Mr H. Mutasa (Gill, Godlonton & Gerrans)

HOVE J:

This is an appeal against a determination by a Designated agent.

The background is that Cimas medical services (Pvt) Limited employed the appellant as a Senior Computer operator grade 8.2. The appellant was stationed at the employer’s head office. He was transferred from the Head office to Cimas medical laboratories to cover for the Systems Administrator who had gone on leave.

The appellant alleges that he was in grade 8.2. He was acting in the position of a grade 10 employee, but remained a grade 8.2 receiving an acting allowance.

Upon the return of the Systems Administrator, the appellant resumed his original position at head office but was immediately called back to deputize the systems administrator and he remained in that position for 3 years. He alleges that the deputy to the Systems Administrator had resigned but he was a grade 9 employee. He however was not elevated despite his duties which were now those of deputizing the systems administrator. Several promises and assurances had been made but he was never regarded until his dismissal from employment on the 13th of April 2017. The appellant’s claim is that he was under paid as he continued to receive the salary and allowances of a grade 8 employee.

The Designated Agent found that the claim against the Respondent had not been substantiated. The appellant had been lawfully dismissed. The Designated agent accordingly dismissed the appellant’s case.

The appellant noted an appeal to this court and during the hearing, two preliminary points were raised and these were that;

(1)	There is no appeal before the court in that the party cited as the Respondent Cimas (Private) Limited does not exist. There is no entity by that name. The appeal must be struck off the Roll, and

(2)	The appellants’ grounds of appeal numbers 4 and 5 are invalid in that they are not precise and concise as is required by Rule (1) (a) of the Labour Court Rules 2017 SI 150/2017 as read with form LC4.

The court will consider the first preliminary point raised.

Whether or not there is a valid appeal before this court?

The respondent was cited as CIMAS (Private) Limited. It was not disputed that the

Respondent is Cimas Medical Services (Private) Limited. There is no entity known as

CIMAS (Private) Limited. As such, there is no respondent before the Court.

The appellant accepted that the respondent’s correct name is CIMAS Medical

Services (Pvt) Limited and there was an omission of medical services in the citation of the respondent.

It was argued that the incorrect citation did not prejudice the respondent and

the Court should pardon the error.

There is however a plethora of authorities that support the preliminary point

raised that there is no case before the court, there is no respondent and therefore the

case is improperly before the court.

See the case of; J D M  AGRO – Consult & Marketing (Pvt) Ltd v Edita, The Herald &

Anor 2007 (2) ZLR 71 (H).

It was held in that case that the summons was invalid on the grounds that there were

no defendants before the court. The Editor of the Herald did not exist and there was no

natural nor a legal person called the herald newspaper. The honourable Gowora J (as

she then was) held as follows;

“The summons was bad at law in that no defendant had been brought before the court and as a result the proceedings were a nullity. It was further held that the amendment of the summons at the pre-trial conference was without effect, as the party named as the second defendant did not exist at the time that the summons was issued and served”.

The appellant requested that the court may pardon the error because no

prejudice was suffered and allow the citation to be amended by the insertion of medical services in the respondent’s name.

The respondent in response submitted that it was willing to abandon its

objection.

The court notes that by reason of the improper citation of the respondent,

there is no appeal before the court. What is before the court is a nullity. The

application to amend a nullity is not supported in law. The clear position of law is that

you cannot place something on a nullity and expect it to stand. The thing will collapse.

In the case of Mcfoy v United Africa Company Ltd 1961 (3) all ER 1169 the

Learned Lord Denning stated that;

“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need of an order of the court to set it aside……..every proceeding which is found on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”.

The proceedings before the court are a nullity because there is no respondent before the Court. The application to amend the citation is itself bad at law as there is no valid appeal before the court. You cannot amend a nullity. Equally bad is the respondent’s attempt to withdraw its preliminary point. Withdrawing the preliminary objection is like asking the Court to ignore the fact that there is no respondent before the court and proceed with the matter without a proper respondent. This is not proper, before the court must be a properly cited respondent. Parties cannot agree to amend a nullity. The Courts have described it as “not only bad, but incurably bad”.

See also the case of JDM Agro-Consult & Marketing (Pvt) Limited (supra)

In the result, the court finds that there is no application before it.

The Court having upheld, as it hereby does, the first preliminary point, there is thus no need to go into the merits of the second preliminary point. The following order is appropriate.

Order

The appeal is struck off the Roll.

Ngarava, Moyo & Chikono 	– 	Applicant’s Legal Practitioners

Gill, Godlonton & Gerrans	- Respondent’s Legal Practitioners