Pianos Mubaiwa v BOC Zimbabwe (Pvt) Ltd. & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 9TH DECEMBER, 2024
JUDGEMENT NO LC/H/283/25
CASE NO. LC/H/1035/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 9TH DECEMBER, 2024

AND

31ST JULY, 2025

JUDGEMENT NO LC/H/283/25 CASE NO. LC/H/1035/24

PIANOS MUBAIWA	APPLICANT

V

BOC ZIMBABWE (PVT) LTD.	1st RESPONDENT AND

NATIONAL EMPLOYMENT COUNCIL	2nd RESPONDENT FOR THE CHEMICALS AND FERTILIZER

MANUFACTURING INDUSTRIES OF ZIMBABWE

Before the Honourable B.T Chivizhe: Judge

For Applicant:	Mr T. E. Mudzuri (Legal Practitioner) For Respondent:	Ms N. P Mutseyami (Legal Practitioner

CHIVIZHE, J:

The matter was placed before me as a chamber application for leave to appeal. The application was filed in terms of Section 92F (2) of the Labour Act [Chapter 28:01] as read with Rule 43. The Applicant intends to appeal against a judgement of this court handed down on 31st August, 2024 under case number LC/H/371/23. The judgement reference number is Labour Court/H/353/24. The parties appeared for the hearing on the 26th of November 2024. After listening to submissions by the parties on the preliminary points as well as the merits the court reserved judgement. On the 9th of December 2024 the court issued an order in the following terms;

The first preliminary point, being with merit, it be and is hereby upheld.

The Answering Affidavit, which was filed irregularly by the Applicant, is accordingly struck off the record.

The second point in limine, being also with merit, it be and is hereby upheld.

The third point in limine, being improperly taken on the date of hearing, is hereby dismissed

The Applicant in seeking an incompetent relief in his intended appeal, the application for leave is therefore improperly before the court, it is accordingly struck off the roll with costs

The Applicant having written a letter to the Registrar requesting for the reasons of the order the following are the reasons for the order.

REASONS

BACKGROUND FACTS

The Applicant was employed by the 1st Respondent from 2002 until 2021 when his contract of employment was terminated. He was at the time of his termination occupying the position of a Distribution Officer. The internal disciplinary proceedings against the Appellant were commenced on 7th July, 2021 by placing him on suspension without pay and benefits. The Applicant was charged with two counts each of breach of sections 4(d) and 4(a) of the Labour National Code of Conduct, Statutory Instrument 15 of 2006. Following a hearing, the Applicant was found guilty of both charges. A penalty of dismissal was consequently imposed upon him with effect from the date of suspension. Aggrieved by the procedure the Applicant approached this court with an application for review of the disciplinary proceedings. The Applicant filed an application for review under case number LC/H/371/21. The matter was heard by this Court and judgement was handed down on the 31st of August 2024. The Applicant intends to appeal against the judgement handed down.

INTENDED GROUNDS OF APPEAL

The court aquo erred at law in inter alia contrary to Section 101 of the Labour Act, upholding a hearing conducted in terms of the national code when there is a competent domestic code of conduct

The court aquo erred in upholding a hearing which was conducted without the requisite notice effected to the Appellant as required at law as the subject employee is an issue

Further the court grossly misdirected itself to an extent that the same is to be considered as a point of law, failing to deal with the issue of appellant’s health which was the core of the issue between the parties

The court aquo erred at law, having concluded that the hearing was improperly constituted in terms of section 6(4)(b) of the National Code of Conduct 2017, partially upholding the findings of such a meeting

The court aquo erred at law in that its judgement considered the element of prejudice when the same element was not argued by the parties or put forward as an inquiry by this honourable court at hearing

The court aquo erred at law in failing to order for the payment of benefits covering the period from the date of hearing and its judgement

despite having concluded that the hearing was not properly constituted to its finality

RELIEF SOUGHT

In relief the Applicant prays that the appeal be upheld with costs and that the judgment of the Labour Court be set aside in its entirety. In substitution thereof, the following order is requested:

Grounds 2 and 3 of the review are found to have merit.

The disciplinary findings of the First Respondent are set aside.

The matter is remitted back to the disciplinary authority to conduct a hearing, with regular notice provided to the Appellant.

The Respondent is ordered to pay the costs of suit.

POINTS IN LIMINE

The 1st Respondent through its Notice of Respondent had taken two points in limine. A third point in limine was also taken on the date of hearing.

On the first point in limine the 1st Respondent submission was that the Applicant had improperly filed an answering affidavit together with his Heads of Argument. There was no provision in the Labour Court Rules for the filing of an Answering Affidavit. Rule 14(5) of the Labour Court Rules, S.I 150 of 2017, clearly provides that there shall be no further

affidavits filed served with the initial court application cannot be used unless the court permits it. Therefore, the answering affidavit was irregularly before the court. It had to be struck from the record.

On the second point in limine the 1st Respondent submitted that the relief being sought by the Applicant before the Supreme Court was different relief from the relief sought before this court. Amongst the relief being sought was relief that the Supreme court remit the matter to the disciplinary authority for a rehearing with proper notice to the Applicant. The relief Applicant intended to seek was not one of his prayers before this court. It is a trite position that a party cannot seek, on appeal, relief that they did not seek in the lower court. The Applicant’s prayer was for the application to be dismissed as it was fatally defective. In elaboration of this point 1st Respondent through Heads of Argument reffered to the judgement in the matter of Edward Mudyavanhu v Reggie Sakuchera SC680/16, where it was emphasized that a party cannot seek, on appeal, relief they did not seek in the lower court.

On the date of hearing the 1st Respondent Counsel took the third point in limine that the Applicant had failed to file the application for leave on time. The 1st Respondent submitted that the Applicant had failed to file the application within the stipulated 21-day period, as required by Rule 43 of the Labour Court Rules,2017. Counsel referred to the case of ZESA v Minyang and Zungula SC6/24, where it was held that an application must be filed after receiving the court order, not after obtaining written reasons. Further reference was made to Nyazura v Mbada Diamonds (Pvt) Ltd LCH 123/14, which underscored the importance of adhering to procedural rules and providing explanations for any delays. The 1st Respondent further contended that the Applicant’s grounds of appeal did not reference the judgment a quo but appeared to be based solely on the court order, further undermining the application.

On the first point in limine Counsel for Applicant submitted, per contra, that the Answering Affidavit was properly filed before the court. The Labour court rules themselves actually refer to an Answering Affidavit in Rule 21. There is also a form listed in the Rules for an Answering Affidavit. Counsel also emphasized that it had become necessary for the Applicant to file an Answering Affidavit in view of the averments by Respondent in the Notice of Opposition. If Applicant had not responded he would be taken as having admitted to those averments by the Respondent. It is after all a trite position that what is not denied is taken as admitted. On this basis Applicant prayer was that the Answering Affidavit be considered

properly before the court.

On the second point in limine 1st Respondent through Heads of argument submitted that the relief sought in the application was exact and clear. It was also in compliance with Rule 37

(1) of the Supreme Court Rules, 2018. The relief being sought was also in line with the term ‘exact nature of relief’ which phrase had been defined in authorities such as Bonde vs National Foods Limited and Others Supreme Court 11/21 and Minister of Lands, Agriculture, Fisheries, Water and Rural Development and Another Supreme Court 6 of 2024. The Applicant position was that the relief as sought was clear, there was no merit in the point in limine as taken. The point had to be dismissed by the court. In elaboration of this point Counsel for applicant orally submitted that the prayer in the draft Notice of Appeal was not fatally defective. His view was that on the basis of the same case referred to by the 1st Respondent i.e. Edward Mudyavanhu vs Reggies Saruchera a litigant can actually seek for relief which was not placed before the hearing a quo. The Supreme Court has discretion to grant relief for the first time before it, as a natural consequence flowing from the issues that have been placed before it. In this case the Applicant ‘s position was that should his appeal against paragraphs 2 and 3 of the court order find favour with the Supreme Court then the court would grant the relief as sought which is to have the disciplinary findings set aside and a fresh hearing conducted. On this basis his prayer was for dismissal of the second point in limine.

In respect of third point in limine Counsel for Applicant submitted that the application had been filed on time. Rule 43 clearly required an application for leave to be filed within 21 days of the decision. The application had been filed on 30th September, 2024 after the order had been handed down on 31st August, 2024, the third point in limine had no merit. He also noted that the point had, in any event, not been taken through pleadings it was therefore improperly before the court. If however it was the court’s view that the point was properly taken and the Applicant ought to have filed an application for condonation first, then the court could in the exercise of its powers under rule 32 grant Applicant condonation. His prayer was for all the points in limine to be dismissed.

EVALUATION

In upholding the first preliminary point raised by the 1st Respondent concerned it was clear that the point had merit. It is the position that a party can file Answering Affidavit in certain circumstances as outlined in Rule 14(5). Rule 14(5) provides as follows

“Except as otherwise provided in this Rule, no affidavit which has not been served with a Court application shall be used in support of the application unless it is otherwise ordered by a Court or a Judge.”

It was clear to the court that even if applicant had justified reasons for wanting to file an Answering affidavit he could only do so upon leave having been granted by the court. This was the basis of upholding of this point. The Answering Affidavit having been filed irregularly was accordingly struck from the record.

The second point in limine was also upheld as it had merit.

The relief sought by the Applicant in the intended appeal was clearly incompetent and incapable of being granted by the Supreme Court. It is indeed the position of the law as contended by the 1st Respondent that a party cannot seek, on appeal relief that he did not seek in the lower court. The court found support in the Edward Mudyavanhu vs Reggie Saruchera aptly referred to by the 1st Respondent. In that case the court stated as follows;

“An appeal court by nature is one that considers and assess the correctness or otherwise of the decision of a lower court on any issue. Where no such issue is considered by an inferior court, it follows generally, that there is nothing for the Appellant’s interest to fully appreciate this point, which was aptly captured in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006(1) ZLR 346 where MALABA J A (as he then was) held that generally a party cannot seek, on appeal, relief they did not seek in the lower Court.”

The Applicant in seeking an incompetent relief in his intended appeal, the application for leave was clearly improperly before the court. It stood to be struck off the roll with costs.

The third point in limine was improperly advanced on the date of the hearing. This procedural irregularity was not supported by the rules or precedents applicable to such. Impartiality is one of the cornerstones of justice. The third point in limine, being improperly taken on the date of hearing, was therefore dismissed.

It was for these reasons that the court issued