Method Matete v Cailo Marketing Services (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO.LC/H/384/25
HELD AT HARARE
CASE NO. LC/H/612/25
CAV; 29 SEPTEMBER 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGEMENT NO.LC/H/384/25 HELD AT HARARE		CASE NO.	LC/H/612/25

CAV; 29 SEPTEMBER 2025

DATE OF JUDGMENT: 15 OCTOBER 2025

In the matter between:

METHOD MATETE	APPELLANT

And

CAILO MARKETING SERVICES (PRIVATE) LIMITED	RESPONDENT

Before the Honourable Makwande J

S. Sangula, for the appellant

D. Peneti, for the respondent

MAKWANDE J:

This is a ruling on preliminary issues raised in an appeal made against the whole of the decision of the Appeals Officer rendered on 11 June 2025.

BACKGROUND

The appellant, a former employee of the respondent, was suspended without pay and benefits with effective from 1 August 2024, pending a disciplinary hearing scheduled for 8 August 2024 on charges under the National Employment Code of Conduct, 2006 (“the Code”).

The applicant charged in contravention of Code as follows:

4(a) of the Code: any act or omission inconsistent with fulfilment of the express or implied conditions of his or her contract.

Gross incompetency or inefficiency in the performance of work.

Habitual and substantial neglect of his duties.

With regards to the charge against the appellant in contravention of section 4 (a) of the Code, the charge was structured as follows (in exact words):

“It is alleged that you failed to consistently administer employee contracts for Labour broking employees in accordance with SI 134 of 2012. You did not send employees on contract break as required by the CBA and have failed to maintain: updated employee records and to possess a contracts management tracker for Labour broking fixed term contract employees which is a mandatory requirement in your portfolio. It is further alleged that. on false pretence you mislead the business that you adhered with the CBA requirements. You failed to provide evidence of this exercise and it has resulted in three employees being permanent employees by default. The business is facing serious litigation of two labour disputes at NEC because of poor performance of your duties as per annexure 1 and 2.”

In contravention of 4 (f) of the Code, the charge levelled read as follows (in exact word):

“Erroneous payroll computations it is alleged that in January 2024, that the you overpaid an employee named Denzel Tahwa despite reminders from: colleagues to correct such resulting in overpayment and financial prejudice to the business of USD$163. As per annexure 4, 5 and 6. It was further alleged that, in the same payroll month, you changed grades from grades 1 to grade 3 of two employees namely Munyai Violet and Mapako Adeline without authorization and have been overpaid for 4 months resulting in the business being financially prejudiced of USD$ 88.08 and ZWL at the time 326,582.10.”

In relation to contravention of section 4 (g) of the Code, the charge levelled against the alleged that the appellant read as follows (in exact words):

“It is alleged that you are consistently resorting to dereliction of duty as you have failed to ensure proper termination of employees resulting in the business exposed to litigation of unfair dismissal in case number 83C/24 whereby you unlawfully terminated him in July 2024. You committed the same in February 2024 where you unlawfully terminated six employees as per case number 10C/24 and the business was compelled to reinstate and incur costs as per annexure 8. You ignored consistent reminders and cautions you were given on handling terminations of employees as per annexure 7. The business is severely suffering from bad reputations of your actions.”

The appellant was found guilty of all charges and subsequently dismissed. The Appeals Officer upheld the guilty verdict and the dismissal. Aggrieved by the decision, the appellant approached this court on the following grounds of appeal:

The Appeals Officer erred in law and in fact in finding the Appellant guilty of gross inefficiency when there was no evidence produced of any employee having become a permanent employee by reason of the Appellant’s actions or omissions.

The Appeals Officer erred in law and in fact in upholding the finding that the Appellant overpaid Munyai Violet and Mapako Adeline when there was no cogent evidence adduced to support that finding and the face of the Appellant’s evidence that the timesheets upon which the payroll was premised was supplied and verified by Zakias Chatapura and authorised for payment by Clemence Gunduza. In any event the evidence relied on was hearsay.

The Appeals Officer erred and misdirected itself in law in upholding the finding that the Appellant was guilty of substantial neglect of duty when there was no evidence produced to show repeated failure and neglect of duty and no evidence of Gambiza and five others as well as Brighton Mapako being reinstated following unprocedural termination of employment by the Appellant.

The Appeals Officer erred in law in finding as proven that the Respondent’s reputation was soiled by reason of the reinstatement of Gambiza and the 5 others as well as Mapako Brighton and that it suffered financial prejudice because of overpayments to Munyai Violet and Mapako Adeline when no evidence was led to prove either of the allegations.

The Appeals Officer erred in fact which was an error in law in holding as she did that the submissions in mitigation and aggravation were analysed and reasons rendered when the record shows otherwise.

The Appeals Officer grossly misdirected herself at law in shifting the onus of proof from the Respondent to the Appellant on all issues when she held as she did that it was the Appellant’s duty to provide evidence to refute the allegations and prove his defence.

The Appeals Officer erred at law in disposing of the Appeal without first affording the Appellant sight of the Respondent’s opposition, if any, filed to the Appeal.

PRELIMINARY ISSUES

The respondents raised two (2) points in limine as follows:

That the appellant omitted the rights due to the respondent in the Notice of Appeal.

That the Grounds of Appeal are fatally defective.

Appellant omitted the rights due to the Respondent

The respondent contended that the appellant’s Notice of Appeal was fatally defective for its failure to state the respondent's corresponding response timelines, as required by law. Although Form LC4 prescribes this notice, the appellant omitted

it. The absence of such a material procedural right on the face of the document is fatal, as established in ZOU v Mazombwe HH–43-09. With regards to the application being fatal, the respondent further relies on the case of Jensen v Acavalos 1993 (1) ZLR 216 wherein the court held as follows:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…”

The appellant countered that the omission is not fatal, as the respondent suffered no prejudice, having filed a response within the requisite ten-day period. The appellant relied on the principle in Malimanjani v Central African Bank Society 2007 (2) ZLR 77 (S), wherein the Court affirmed the Labour Court's status as a court of equity focused on substantive justice over technical form.

I am persuaded that while the inclusion of procedural timelines is necessary as required by the Rules, its omission is not fatal in these circumstances. As held in Malimanjani (supra), the Labour Court's primary mandate is to adjudicate disputes on their merits in the interests of justice. Technical objections are subordinate to an assessment of actual prejudice, which is absent in this case. The reasoning in Malimanjani (supra) was also similarly shared in Mazambani v International Trading Company (Private) Limited and Anor 2020 (1) ZLR 1418 (S) wherein MATHONSI JA made the following remarks:

“This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities.”

Moreover, I further find it appropriate to apply section 90A of the Labour Act in this matter. The statutory purpose is to liberate the Court from the grasp of formalistic procedural constraints, thereby, ensuring that technicalities do not frustrate the administration of justice on the merits. The court in Mapondera & 55

Ors v Freda Rebecca Gold Mine Holdings Limited SC 81/22, the court averred as follows as to the application of section 90A of the Act:

“It is self-evident that s 90A of the Act distinguishes ordinary courts of law from the Labour Court as a special court. The law maker therefore saw it fit to confer the court a quo with a wider discretion than that obtaining in the ordinary courts of law in order to do simple industrial justice. Because of their legal training and the involvement of lawyers, Labour Court judges often stray into the morass of legal jargon and technicalities much to the bewilderment of the unsophisticated litigants. This unwelcome tendency has the undesirable effect of mystifying industrial legal proceedings thereby clouding the dispensation of industrial justice. It therefore acts as a barrier to accessing industrial justice.”

Accordingly, the first preliminary point is overruled. I find the omission to be a technical and non-prejudicial irregularity that does not justify the extreme sanction of striking out the appeal, a conclusion fortified by the directive in section 2A of the Labour Act.

Fatally Defective Grounds of Appeal

On the second preliminary point, the respondent contended that the grounds of appeal are fatally defective. As follows:

In Grounds 1 & 4, the respondent submitted that the appellant alleges that the Appeals Officer made findings of fact. It argued that this premise is fundamentally flawed, as an appellate forum reviews, but does not make, factual findings. As the Supreme Court held in Muyaka v Bak Logistics Pvt Ltd SC 39/17 at p. 5, a ground of appeal predicated on this misconception is fatally defective.

The respondent objected to Ground 2 as impermissibly argumentative and non- compliant with the requisite standard of conciseness. The Supreme Court, in Kunonga v The Church of The Province of Central Africa SC 25/17, has affirmed

that the rules of court mandate grounds of appeal to be stated with precision and brevity, a standard this ground fails to meet.

The respondent further submitted that Ground 5 is fatally defective for being vague and embarrassing. A proper ground of appeal must be formulated with sufficient clarity and particularity to define the issues for the Court; an open-ended allegation fails this fundamental requirement.

Regarding Ground 7, the respondent submitted it is incompetent as it challenges the appeals officer’s procedure, not the decision's merits. He contends that an appeal corrects substantive error, while a review corrects procedural irregularity. As held in Khan v Provincial Magistrate & Ors HH-39-06, conflating these distinct remedies is impermissible. The respondent further submitted that rule 19(3) of the Labour Court Rules, 2017 provides the proper mechanism for this challenge by allowing a simultaneous review, which the appellant ought to have pursued instead of dressing a review ground as an appeal.

I agree with the respondent’s sentiments that the appellant did not address the points raised in limine in its heads of argument. The appellant made a sweeping comment addressing probably grounds 1 and 4 that in terms of section 98(10) of the Labour Act [Chapter 28:01], the Labour Court should limit itself to questions of law unless there is a serious misdirection on the facts that would amount to misdirection in law. It went on further to submit that the failure by the Disciplinary Authority to consider factual issues raised and argued before him and the findings of guilty contrary to the evidence constitutes an error of law inviting the Court to interfere.

In oral submissions, the respondent made a spirited effort to address the points in limine without much success. This court, being a court of equity, which has been directed in many a case to conclude matters on merits and not technicalities, proceeded to consider the points raised.

It is trite that appeals to the Labour Court are purely on questions of law and merits of the determination though this court reluctantly interferes unless the findings of fact lack logic. The term “questions of law” has been laid down to include four distinct senses. See Zimbabwe Open University v Ndekwere 2019 (2) ZLR 480

(S). GARWE JA (as he then was) in that matter had this to say about the fourth sense “where the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a conclusion. A serious misdirection on the facts amounts to a misdirection in law See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 S at 670D.”

The court went on further to guide that in determining whether a ground of appeal raises an issue of law, the correct approach is that a court will confine itself to the wording of the grounds of appeal only and not the merits of the matter. The grounds of appeal which attack findings of fact must, therefore, not only allege that the lower court misdirected itself on the facts but must go further and show how that misdirection translates to a question of law. Merely alleging a misdirection without further substantiation would not be enough as the attack would remain one against a factual finding.

A consideration of grounds 1 and 4, based on the above principle, will show that ground 1 fails to meet the mark required to establish a question of fact out of a factual finding. The ground is vague. I am of the view however that Ground 4 though inappropriately phrased makes an allegation regarding a factual finding which was irrational as a result of lack of evidence. It seems to attack the rationality of the findings by the Appeals Officer.

In respect of ground 5, I also find it to be overly broad, and it lacks the requisite clarity to permit a meaningful response in an appeal.

While section 90A of the Labour Act liberates this Court from rigid technicalities, it cannot cure fundamental nullities. These deficiencies render the grounds incompetent, a principle affirmed in Chinganga v Shava & Ors S–12–22, where the Court reasoned:

“…grounds of appeal are fatally defective in two main respects. They are all vague and embarrassing. In the words of LEACH J in Sonyongo v Minister of Law-and-Order 1996 (4) SA 384 at 385F:

‘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.’”

Regarding ground 7, I find it incompetent. It challenges a procedural issue, which is the domain of a review as per section 92EE of the Labour Act. It is, therefore, not a ground of appeal.

The defectiveness of grounds five and seven is dispositive of their validity. Applying the standard approved in Chinganga (supra), which adopted the remarks of LEACH J in Sonyongo (supra), these grounds are impermissibly vague and embarrassing, providing no proper basis for adjudication or response.

The principle of nullity is settled in Manikwa & Another v ZIMDEF & Anor

SC 73/17, wherein BHUNU JA, relying on precedent, articulated the following:

“Mc Foy v United Africa Company Ltd ALL E R 1169 remarked that:

‘If an act is in law a nullity, it is not only bad, but incurably bad. There is no need for the order of the Court to set it aside. It is automatically null and void without more ado. Though it is sometimes more convenient to do so. And every

proceeding founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.’

What this means in simple terms is that the application to amend the fatally defective appeal is also in itself fatally defective and a nullity at law. For the foregoing reasons this Court unanimously holds that both the notice of appeal and the application to amend are fatally defective warranting being struck off without any further ado.”

This Court finds that Grounds 1, 2, 5, and 7 are a nullity as articulated in Manikwa (supra). They are incurably defective and cannot be sustained. It follows that all arguments founded upon these grounds are untenable and must fall, as the grounds themselves fail to comply with the requisite rules.

For the reasons stated, the respondent's first preliminary objection is overruled, and the second is sustained to the extent that the appeal is hereby limited to grounds 3, 4 and 6, all other grounds being declared fatally defective.

DISPOSITION

WHEREUPON, IT IS HEREBY ORDERED THAT:

The respondent's first preliminary point is dismissed.

The respondent's second preliminary point is partially upheld, with the consequence that Grounds 1, 2, 5, and 7 of the Notice of Appeal are struck off.

The appeal shall proceed on the basis of Grounds 3, 4 and 6 only.

The Registrar shall immediately set down this matter for hearing in consultation with the parties.

There shall be no order as to costs.