Never Mutambara & 2 Ors v GD1 (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/290/25
HARARE, 20 MAY, 2025 AND 15 AUGUST 2025
CASE NO LC/H/169/25
NEVER MUTAMBARA
1ST APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/290/25 HARARE, 20 MAY, 2025 AND 15 AUGUST 2025		CASE NO LC/H/169/25

NEVER MUTAMBARA	1ST APPELLANT

JEMINAS MUTERO	2ND APPELLANT

TAFADZWA UTETE	3RD APPELLANT

GD1 (PRIVATE) LIMITED	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellants	- N. Matongwana, Unionist

For Respondent	- K.W. Tsvetu, Attorney

MUSARIRI, J:

On 6th January 2025 Arbitrator P. Chiyangwa issued an award whereby she dismissed appellants’ claims of unlawful termination of employment by respondent.	Appellants then

appealed the award to this Court in terms of Section 98 (10) of the Labour Act Chapter 28:01. Respondent opposed the appeal.

At the onset of oral argument applicant raised a point in limine to the effect that the Respondent’s Statement of Opposition was filed out of time and thus amounts to a nullity. The point is elaborated in appellant’s heads of argument thus,

“1.  The notice of response is improperly before the court for failure to comply with the court rules on time frames.

Respondent was served with a notice of appeal on 4 March 2025.

Respondent was supposed to file its Notice of Response on or before 18 March 2025.

Respondent then filed its Notice of Response on 19 March 2025 which was out of time.

Respondent instead of applying for condonation for late filing of Notice of

Response, respondent proceeded to file its offensive papers and lied before this Honourable Court that they were served on 5th day of March 2025.

Respondent misled the court in the hope of obtaining an undeserved relief.”

Respondent’s heads of argument countered as follows,

“5.1.  The Respondent maintains that the Notice of Appeal was served on the Respondent on the 5th March 2025. It is also trite to bring to the attention of this Court the fact that service was effected at the Respondent’s place of business instead of that of their Legal Practitioners of Record while the Appellants were aware that the Respondent was legally represented.

The Respondent is of the firm view that this was improper service and the Respondent opposed only out of courtesy after the Legal Practitioners had been informed of the Notice of Appeal by the Respondent on the 11th of March 2025 when the Directors of the Respondent, who were away at the material time, became aware of the Appeal.

The Respondent cannot be unjustly barred at the behest of Appellant’s calculated improper service.

The issue of whether or not the Notice of Response (sic) does not arise because dies induciae had not been set in motion owing to improper service by the Appellants.”

Respondent’s argument that service of the appeal upon respondent rather than its attorney was improper is clearly misconceived. Service of an appeal on the respondent is entirely proper. Respondent is the party to the proceedings. It would be up to respondent upon service of the appeal to instruct its attorney to represent it in the matter. The Certificate of Service indicates that service was effected on 4th March 2025.

Respondent had 10 days to file a response that is on or by the 18th March 2025. Instead respondent filed its response on the 19th March 2025. The response was indeed filed out of time. The assertion in respondent’s heads that service was effected on 5th March 2025 is not supported by anything from respondent itself. The point in limine was therefore well-taken.

Conclusion

Respondent did not motivate its points in limine which are thus deemed as abandoned. There being no valid opposition, the appeal stands to be granted as unopposed.

Wherefore it is ordered that;

The appeal be and is hereby allowed as unopposed,

The award issued by Arbitrator P. Chiyangwa on 6 January 2025 is set aside and substituted thus,

“The Respondent shall reinstate the Claimants without loss of salary and benefits or alternatively Respondent shall pay Claimants damages in lieu of reinstatement amounting to USD $1,701.25.”; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E