NetOne Cellular (Private) Limited v Marovanyika FV N.O & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/46/2023
HARARE, 15 FEBRUARY 2023 &
23 FEBRUARY 2023
CASE NO :LC/H/1102/22
REF CASE: LC/H/361/22
---------


IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/46/2023

HARARE, 15 FEBRUARY  2023 &		  CASE NO 	:LC/H/1102/22                                 23 FEBRUARY 2023				  REF  CASE: LC/H/361/22

In the matter between:-

NETONE CELLULAR (PRIVATE) LIMITED		APPLICANT

MAROVANYIKA FV  N.O					1st  RESPONDENT

LOVENESS GOVERAH					2nd RESPONDENT

TAUYA MUGWAGWA					3rd RESPONDENT

Before the Honourable Kudya J

For the Applicant		Adv. T.L. Mapuranga (Legal Practitioner)

For the Respondent		T. Chagudumba (Legal Practitioner)

KUDYA, J:

This is an application for leave to appeal to the Supreme Court. The test for leave to appeal is settled   See Dombodzvuku v CMED. In the case at hand the applicant argues that it has a merited case on appeal in that the interpretation of the law on termination on notice is contrary to what has been settled by the Superior Courts.  Main reliance is placed on the case of Greatermans Store (Pvt) Ltd  v Ministry of Public Service  CCZ  2/18.   It is the applicant’s contention that a correct reading of Greatermans (supra) shows that the employer’s common law right to termination on notice was retained but with the rider that compensation has to be paid in terms of  Sec  12(4)(c) of the Labour Amendment Act  2015.

It argues further that there are 2 inconsistent judgments from this court on the issue hence the Supreme Court needs to pronounce itself definitively on the matter.  A reading of Greatermans (supra) shows clearly that the right to terminate on notice has not been abolished but needs to be done within the confines of the provision of the Section 12(4)(a) and of the Amendment Act.  It appears that the main bone of contention is what modification means in that regard.  The respondent opines that the full retrenchment process should have been followed before compensation yet applicant is of the view that such was not necessary.  In its view so long as applicant tendered compensation it was at liberty to relieve the employees of their duties. It is settled that where there is a plausible or arguable case on appeal the court should lean in favour of the grant of leave.  In the matter at hand the court has interpreted the law in the manner which gives effect to what was intended to be achieved by the Greatemans judgement.  It is also without doubt that judgments of the court with parallel jurisdiction can not bind the other.  There is need for certainty on the issue.  So on account of the conflicting decision it may be imperative that the Supreme Court pronounces itself on the issue.  The application to that extent can not be adjudged frivolous.  The court indeed takes note of the respondent’s comments on the Colcom cases but as stated earlier there is need for certainty in the law.  It is not proper that for the same issue to have divergence on the interpretation of the law which was succintly laid out in Greatermans supra.  It is thus the court’s view that the application for leave to appeal is merited.  It should thus succeed.

IT IS ORDERED THAT

Application for leave to appeal being merited it be and hereby succeeds. Each party to bear own costs.

Gill Godlonton and Gerrans, Applicant’s Legal Practitioners

Atherstone and Cook, Respondent’s Legal Practitioners