Paul Makundidze v Buhera Rural District Council

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LCH184/24
HELD AT HARARE 19TH March 2024
CASE NO LC/H/49/24
AND 23 April 2024
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 19TH March 2024
AND 23 April 2024

In the matter between
PAUL MAKUNDIDZE
And
BUHERA RURAL DISTRICT COUNCIL

APPLICANT
RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPLICANT : T.E. MUDZURI (LEGAL PRACTITIONER)
FOR THE RESPONDENT : MR ZVIUYA (LEGAL PRACTITIONER)

MAKAMURE J:

This is an application for leave to appeal to the Supreme Court against a judgment of this Court Judgment Number LCH 369/23. It is being made in terms of r43 of the Rules of this Court 2017 (the Rules) as read with s92F(2) of the Labour Act Chapter 28:01 (the Act). It is opposed.

Rule 43 provides as follows :

‘43 Leave to appeal against decisions of the Court

(1) An application in terms of section 92F (2) of the Act seeking leave to appeal from any decision of the Court shall be made to the Judge of the Court who made the decision or in his or her absence, from any other Judge, within twenty-one days from the date of that decision.

(2) An application in terms of this rule shall be accompanied by a draft of the intended Notice of Appeal to the Supreme Court.’(My underlining for emphasis)
 I have observed issues which I think are worth commenting on. Firstly, the draft addresses the Labour Court and not the Supreme Court.

Secondly the draft notice of appeal itself reads as follows in part:

‘NOTICE AND GROUNDS OF APPEAL IN TERMS OF SECTION 92F (OF THE LABOUR ACT [CHAPTER 28:01] AS AMENDED.

TAKE NOTICE THAT the Appellant hereby appeals against the whole judgment of the Labour Court…

GROUNDS OF APPEAL

RELIEF

WHEREFORE Appellant prays that the appeal be upheld with costs and that the judgment of the Labour Court be set aside in its entirety and in its place be substituted the following (sic).

IT IS ORDERED,

1. The appeal being without merit be and is hereby dismissed with costs.

2. The Respondent shall pay costs of suit.’


I am not sure whether this is what the applicant intended. If the intended relief is for the Supreme Court to dismiss the appeal, then why did the applicant bother to make an application for leave to appeal in the first place? But the relief sought was that the appeal be upheld. Thus, it is confusing as to why the order is the complete opposite of the relief sought.

Thirdly, there is no prayer before this Court. The purported application before this Court should be asking this Court to grant the applicant for leave to appeal so that he is given the time within which to note the said appeal. The Court does not know the actual relief which the applicant would want to be granted. Authorities have consistently emphasized the need of a prayer and that it should be exact. In **Fadzai John v Delta Beverages Limited SC 40/17** the Supreme Court held that the prayer in a notice of appeal must be exact in nature. In **Chamboko v Dorowa Minerals Limited SC 26/15** the Supreme Court stated that:

‘In any case an applicant for leave to appeal must file a notice of appeal that conforms to the requirements of the court at the time the application for leave to appeal is made. Where the notice of appeal is fatally defective, there is no valid appeal.’

In the present application there is not even a prayer. This means that the application is fatally defective. There is no valid application before the Court.

Fourthly, the applicant’s heads of argument (page32/52) are wrongly cited with Buhera Rural District Council as the ‘APPLICANT’ and the present applicant as the ‘RESPONDENT’. The present respondent’s heads of argument appear at page 46/52 of the consolidated record.

I am not sure whether or not the applicant’s legal practitioner takes this Court seriously. Had he been serious, I believe he would have done better than this. I also believe that the legal practitioner for the other party should also have pointed out these issues. Both parties chose to argue merits of the application for leave to appeal where there is no prayer.


Rule 12 empowers the Court to conduct a hearing in a manner that it ‘considers most suitable to the clarification of issues…and generally the just handling of the proceedings before it.’

The merits of the application have been argued, however where there is no valid application for leave to appeal before the Court, I find it not necessary to consider them. For that reason, I find that it is just and proper that the matter be struck off the roll.

Accordingly, it is ordered that:

1. The matter be and is hereby struck off the roll.

2. There is no order as to costs.

LAWMAN LAW CHAMBERS, APPLICANT’S LEGAL PRACTITIONERS.

MESSRS BERE BROTHERS, RESPONDENT’S LEGAL PRACTITIONERS.
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