Mike Manhuwa v Antar International Co. (Pvt) Ltd & Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/359/25
HELD AT HARARE 24 SEPTEMBER 2025
CASE NO. LC/H/655/25
AND 2 OCTOBER 2025
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 24 SEPTEMBER 2025

AND 2 OCTOBER 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/359/25 CASE NO. LC/H/655/25

MIKE MANHUWA	APPLICANT

AND

ANTAR INTERNATIONAL CO. (PVT) LTD	FIRST RESPONDENT

T. MPOFU N.O.	SECOND RESPONDENT

NEC FOR THE TRANSPORT OPERATING

INDUSTRY	THIRD RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant/Appellant	Mr. M.V. Kasvaurere

For First Respondent	Mr. T. Chinyanganya No Appearance for Second and Third Respondents

MURASI J.,

This is a combined application for review and appeal. Applicant was employed by the First Respondent as a driver. Following an accident in which he was the driver of the motor vehicle, he was brought before a Disciplinary Committee which found him guilty. The matter ultimately came to this Court on review. On 27 January 2025, this Court rendered an Order in which it set aside the decision of the Disciplinary Committee. The Court also remitted the matter to be heard de novo before a Designated Agent of Third Respondent within a period of sixty (60) days. It is those proceedings which Applicant has sought to be reviewed and appealed against in this Court.

Applicant’s grounds for review are as follows:

The Arbitrator did not have jurisdiction to issue the award beyond the 60 days prescribed by the court order.

The Arbitrator failed to conduct a hearing as entailed by ‘hearing de novo’ in terms of the court order.

The grounds of appeal are formulated as follows:

The Arbitrator entirely failed to determine the issue of reinstatement that had been preliminarily raised before him.

The Arbitrator grossly erred by issuing a retrospective order of the employee’s dismissal.

The Arbitrator fundamentally failed to appreciate the terms of reference by ruling on the merits when the conciliator never heard the merits.

Preliminary Issues

Mr. Chinyanganya stated that he had a few points in limine to raise in the matter. He stated that the appeal was fatally defective as it was not clear whether the Appellant was appealing against the whole judgment or just a part of it. He submitted that the Superior Courts had indeed determined that it was crucial to state whether a party was disgruntled with the whole judgement or just part of it. In the second point in limine it was argued that Appellant had not complied with Rule 21A which required that an Applicant should paginate the filed electronic document. The third issue related to the Founding Affidavit. It was submitted that it was not properly made out as there was no date to indicate when the deponent appeared before the Commissioner of Oaths.

In response, Mr. Kasvaurere stated that the Resolution clothing the deponent with authority was not properly before the Court. He argued that the Resolution showed that it had been made out on 9 July 2025 when the Affidavit was then made out on 21 July 2025.He later stated that he was abandoning the point in limine. In response to the points in limine raised by Mr. Chinyanganya, he stated that these lack merit as Rule 19 (3) provides that when noting an appeal together with a review the Form to be used is the Form LC 4. Secondly, he submitted that the requirement to state whether an appellant is appealing against the whole or part of the judgment sought to be impugned applies to Rule 29 of the Supreme Court Rules and that there is no such provision in the Labour Court Rules. As far as pagination was concerned, he argued that the record showed that the documents Applicant/Appellant had filed had been paginated and that this should be differentiated from the Consolidated Index compiled by the Registrar. In respect of the signature on the Founding Affidavit, he submitted that the document showed that the date had been filled in by the Commissioner of Oaths and it was not machine generated.

Ruling on Preliminary Points

The Court indicated that the its determination on the preliminary points would form part of the main judgment. The following is the Court’s determination.

In Telecel Zimbabwe (Private) Limited v POTRAZ & Ors HH 446/15, the noted that:

“the courts are spending a lot of time determining points in limine which do not have the remotest chance of success at the expense of the substance of a dispute. A preliminary point

should only be taken where, firstly, it has merit and secondly, it is likely to dispose of the matter. The time has come to discourage such waste of courts’ time by making endless points in limine by litigants afraid of the merits of the matter..”

The same sentiments were expressed in Afrochine Smelting (Private) Limited v N.R. Barber (Private) Limited HH 121/20 where it was stated thus:

“In my view, time has come that this warning be taken seriously. Otherwise, courts will continue spending valuable time on tangents and detours, instead of dealing with the substantive merits of the dispute. Courts should ensure that matters and disputes between parties be finalised rather than delayed due to technicalities that do not deal with the real issues between the parties.”

The above cited cases serve as an indicator of the attitude of the courts in respect of points in limine which are meritless. In my view, a litigant or legal practitioner should, before making the decision to raise the point, satisfy himself or herself on the requirements of the law as regards that particular point. In many instances, this involves a glance at the relevant statute and the Rules of that particular court. Where one believes he/she is familiar with those Rules, a re-check of the correct position is essential before rushing to raise the point. This has the potential to save a lot of the court’s time dealing with such unwarranted issues. The cited cases also address pertinent issues in respect of the points in limine. They should be meritable AND be likely to dispose of the matter.

A reading of the points in limine raised by the First Respondent’s Counsel show that there was no reference to the Labour Court Rules at all when he raised the issue of the requirement to state whether the Appellant was appealing against part of or the whole judgment. The Labour Court Rules do not contain such a requirement. As pointed out by Mr. Kasvaurere, the requirement emanates from Rule 29 of the Supreme Court Rules. The point in limine lacks merit. The point in limine on the absence of an Index was not properly motivated. It was Respondent’s responsibility to point out the offending parts of the filed documents. This was not done. As far as the signing of the Founding Affidavit was concerned, nothing showed, ex facie the document, that it was NOT the Commissioner of Oaths who had filled in the date. The points in limine ought to be dismissed.

What followed was a discussion on the grounds of appeal. The issue was whether the grounds of appeal were concise and precise. First Respondent took the view that they did not satisfy that legal requirement.

MERITS

Applicant/Appellant REVIEW

In dealing with the first ground for review, Mr. Kasvaurere stated that the Arbitrator no longer had the jurisdiction to deal with the matter as it was outside the period prescribed by the Court. Asked by the Court whether the parties were brought before the Arbitrator within the 60 days, he replied

in the affirmative. He thereafter stated that the ground was not well taken, and it was being abandoned.

The same applies to the second ground for review, Mr. Kasvaurere stated that it was not well taken having regard to the fact that the matter was properly referred to the Arbitrator with the requisite terms of reference and he proceeded to make a determination thereafter.

APPEAL

Addressing the first ground of appeal, Mr. Kasvaurere argued that the issue of reinstatement was placed before the Arbitrator and he was therefore enjoined to deal with it. He referred to precedent cited at page 82 in the Heads of Argument.

In respect of the second ground of appeal, he submitted that the Arbitrator clearly misdirected himself in ordering that the Appellant remained dismissed from the date the Court ordered a hearing de novo. He further argued that this was an error as the decision of the Court set aside the dismissal verdict and that a new hearing had been ordered. His view was that the date of dismissal should be the date of determination by the Arbitrator. He also stated that this had the result of denying the Appellant his dues and that he would be prejudiced by such a ruling.

The third ground of appeal was abandoned.

In view of the developments in the application for review, First Respondent was not asked to make any submissions.

APPEAL

I should state that the record shows that Mr. Chinyanganya did not make submissions on the merits of the matter. He confined himself to the issue of whether the grounds of appeal were concise and precise. In this respect, he referred to relevant case law and that these grounds were fatally defective.

In respect of the second ground of appeal, the Court enquired of First Respondent’s Counsel’s position on the submissions made by Mr. Kasvaurere. He conceded that the second ground of appeal had merit and that the Arbitrator misdirected himself in making the order that he did.

ANALYSIS

The Court notes that the Review application should fall by the wayside having regard to the concessions made by Applicant’s Counsel. As far as the appeal is concerned, there remains a single ground of appeal for determination. There has been a concession by the First Respondent’s Counsel as regards the second ground of appeal and the third ground of appeal has been abandoned.

Having said that, I am of the view that much has to be said about the Appellant’s grounds of appeal. These are the sort of grounds of appeal which were referred to by GARWE JA (as he then was) in Dr. Kunonga v The Church of the Province of Central Africa SC 25/17. It was stated in that case

that a notice must specify details of what is appealed against, the particular findings of fact and rulings of law. The notice must be able to identify whether a ruling of law is wrong and why it is alleged to be wrong and if it is about a finding of fact, it should be made clear whether the finding is inconsistent with evidence adduced or the finding is against all probabilities.

Having regard to the fact that this was a matter which had been previously to this Court, justice would not be seen to be done if the matter were to be struck off the roll on that score. The matter would need some laundering and be brought again. The Court formulated the view that it could understand what was meant by the first and second grounds of appeal and decided to deal with the matter on the merits. This is even though the grounds of appeal in question were indeed inelegantly drafted. The Court decided to use its discretion and condone this infraction.

The first ground of appeal avers that the ‘Arbitrator failed to determine the issue of reinstatement that had been preliminarily raised before him.’ What does the record show? At page 15 of the record the following appears:

“ISSUES IN DISPUTE/TERMS OF REFERENCE

To determine the matter.”

It would appear that the parties agreed that the Arbitrator was to determine the matter. This is further confirmed by the Arbitrator’s formulation of the issues on the same page:

“Issues for Arbitration

Is whether or not the Respondent was negligent in performing his duties and caused loss to the company,

Whether or not the Respondent was fairly dismissed.”

The Arbitrator then refers to the issue of reinstatement at page 26 of the record. It reads thus: “Improper terms of reference

The Respondent submits that at conciliation, we raised a preliminary point which was not determined by the Designated Agent, on whether disciplinary proceedings could continue before reinstatement of the employee. The question which was to be referred for arbitration was that preliminary point. The matter therefore did not ripen for negligence to be assessed. There is a plethora of case law to the effect that an Arbitrator falls into error if he misinterprets or mischaracterises terms of reference…Respondent replicates that the preliminary point raised should be dismissed for lack of merit. It is irrelevant. Arbitrator’s observation on this issue is once a certificate of no settlement is issued, it certifies that the dispute referred for conciliation remained unresolved hence reference to Arbitration. Terms of references are agreed during conciliation which specifies the issues in dispute that will guide the arbitration. During conciliation parties discuss and negotiate the terms that will govern the arbitration. Terms of reference lays framework for the arbitrator to make

informed decision. Furthermore on the terms referred to the arbitrator are’ to determine the matter’ and the Arbitrator is bound by that, courts have held that where parties agree to their arbitration terms of reference and when they come up with an agreement for arbitration such agreement is binding on the parties. No party can get relief which is outside the terms of reference of arbitration. The tribunal is duty bound to full comply with the terms of reference of the dispute.”

In summary, the Arbitrator attended to the issue of reinstatement. He stated that the matter was not part of the terms reference agreed to by the parties, and he could not therefore deal with it. A reading of Appellant’s ground of appeal shows that the Appellant is not disgruntled with the decision but the fact that it was not dealt with. The reason for not dealing with it was supplied. That should be the end of the enquiry by this Court. The ground of appeal lacks merit.

Elsewhere in this judgment I made the observation that there was a concession by Mr. Chinyanganya as regards the second ground of appeal. The Arbitrator determined that Appellant stood dismissed as at the date of the Court order remitting the matter for a hearing de novo. That Order set aside the determination by the Disciplinary Committee. The logical conclusion would be that when Appellant appeared before the Arbitrator, he was an innocent man. He was only deemed guilty after the hearing by the Arbitrator. It would therefore not be correct to retrospectively impose the dismissal to a date prior to the hearing. It was indeed a misdirection on the part of the Arbitrator. As argued by Mr. Kasvaurere, the determination has the effect of potentially prejudicing the Appellant of any benefits which may have accrued to him during the period up to the determination of the Arbitrator.

I further make the observation that the Appellant does not take issue with findings by the Arbitrator that he was indeed guilty of the offences preferred by the employer.

The appeal partially succeeds with the dismissal of the first ground of appeal whilst the second ground of appeal is allowed. The application for review has to be dismissed for reasons already alluded to elsewhere in this judgment.

The following order is appropriate.

The application for review is hereby dismissed.

The appeal partially succeeds.

The first ground of appeal is hereby dismissed for lack of merit.

The second ground of appeal is hereby allowed.

The Arbitrator’s award is amended and substituted with:

“It is ordered that Respondent Mike Manhuwa is dismissed from employment with effect from the date of this Order, which is 20 June 2025.”

Each party to meet its own costs.

Mahuni-Gidiri Law Chambers-	Applicant’s legal practitioners Mutendi, Mudisi & Shumba Legal Practitioners-	Respondent’s legal practitioners