Probottlers PVT(LTD) V Bruce Chitunhu & 3 Others

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/347/25
HARARE 27 MARCH 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/347/25

HARARE 27 MARCH 2025

29 SEPTEMBER 2025	CASE NO LC/H/121/25

PROBOTTLERS PVT(LTD)	APPLICANT AND

BRUCE CHITUNHU	1st RESPONDENT AND

KISHIAL PATEL N.O.	2nd RESPONDENT AND

DEAN MAJAYA N.O.	3rd RESPONDENT AND

PROBOTTLERS (PVT) LTD DISCIPLINARY	4th RESPONDENT COMMITTEE N. O.

Before the Honourable Chivizhe, Judge:

For Applicant	Ms N. Katsande with Mr A.K. Maguchu (Legal Practitioners) For Respondent	Mr J. Mafongoya with Mr C Mubereki (Legal Practitioners) For the 2nd to the 5th Respondents - No appearance

RESASONS CHIVIZHE, J:

The matter was placed as composite application for condonation and extension of time within which to apply for leave to appeal and an application for leave to appeal. The application was filed on 27 March 2025. The applicant was seeking condonation and extension of time in which to file an application for leave to appeal the judgment of this court under judgment number LC/H/464/24 rendered on 21 November 2024. The application was opposed.

terms;

The court heard the application on 27 March 2025 and issued an order in the following

“WHEREUPON, after reading documents filed of record and hearing counsel.

IT IS ORDERED THAT

The first point in limine, being without merit, is hereby dismissed.

The second point in limine, being with merit, is hereby upheld.

The application, being fatally defective by reason of a defective founding affidavit, is accor dingly struck off the roll with costs.”

The applicant having written requesting for reasons these they are. The delay in providing the reasons in sincerely regretted.

THE BACKGROUND FACTS

The applicant is a body corporate duly registered in terms of the laws of this country. The first respondent is an employee of the Applicant, while the 2nd, 3rd and 4th respondents are employees of the Applicant cited in their official capacities as members of the disciplinary committee tasked with hearing and determining the disciplinary case against the 1st Respondent. The 1st Respondent was employed by the Applicant as a Syrup Room Controller. On 17 May 2024, he was suspended from employment without pay and benefits under Statutory Instrument 15 of 2006, on the basis of alleged misconduct. The 1st Respondent contested the allegations, and a disciplinary hearing was convened to determine the matter. During the disciplinary hearing, the 1st Respondent filed an application for review with this court. He sought a review of the proceedings on the following grounds:

The wrong code was used to suspend and discipline him, and as a result, the disciplinary committee lacked jurisdiction over the matter.

The disciplinary committee was not properly constituted.

The disciplinary committee was biased against him, owing to its conduct or omission during the proceedings.

The firs respondent prayed that his suspension be uplifted and that the proceedings conducted after his suspension be set aside. He indicated that he was not opposed to being disciplined it was accordance with the proper applicable law. The applicant opposed the application for review. It contended that Statutory Instrument 15 of 2006 was the proper applicable law; therefore, the suspension was lawful and could not be set aside. The Applicant further argued that any alleged irregularities in the proceedings did not affect the lawfulness of the suspension. In its opposing affidavit, the 4th Respondent made certain concessions regarding the proceedings.

Following the hearing of submissions by the parties, the court handed down a judgment, which is the subject of the intended appeal to the Supreme Court. The applicant initially filed an application for leave to appeal under reference LC/H1301/24 on 19 December 2024. The 1st respondent opposed the application and raised a preliminary point that the draft notice of appeal was fatally defective. In response, the applicant withdrew the initial application for leave to appeal. Subsequently, the Applicant filed the composite application under ref LC/H/121/25 seeking:

Condonation for failure to seek leave to appeal within the prescribed time;

An extension of time within which to apply for leave to appeal; and

Leave to appeal.

PRELIMINARY POINTS

The 1st respondent, in opposing the application, had raised two preliminary points. The first point related to the filing of a composite application. He contended that the applicant’s approach was fatally defective, in that the application for condonation was to be filed with the court, whereas the application for leave to appeal was to be filed with a Judge in Chambers. It was submitted that in terms of the Rules, the definitions of “Court” and “Judge” are clear and distinct, and, therefore, could not be combined. The 1st respondent further submitted that the Supreme Court has clarified the distinction between Court and Chamber applications, which necessitated the use of separate forms. On this basis, it was contended that the application lacked foundation and ought to be dismissed at law. The 1st respondent prayed that the matter be struck off the roll.

Through his Heads of Argument, the 1st respondent elaborated on and justified this point. Reference was made to several authorities, including FBC Bank Limited v Chiwanza SC 31-17, where the Supreme Court emphasised the importance of strict adherence to Court Rules to ensure the proper administration of justice. In the present case, it was submitted that the two applications ought not to have been combined, as each required different forms and procedures. Reference was made to Rule 14, where it is stated that a court application must be in Form LC1 and supported by one or more affidavits setting out the facts upon which the applicant relies, together with a draft order. In contrast, a chamber application must be in Form LC12 and similarly supported by affidavit(s) setting out the relevant facts.

The 1st respondent further submitted that the two applications are also provided for under different Rules, with the application for condonation under Rule 22, and the application for leave to appeal under Rule 43. The amendments to the Labour Court Rules further clarified

the definitions of “Judge” and “Court” under Rule 3. The 1st respondent urged the court to disregard the applicant’s submission based on Rule 24, noting that the 1st respondent was not seeking dismissal of the application but rather its striking off, as a fatally defective application must be struck off, not dismissed. Reliance was placed on Bindura Municipality v Paison Chikeya Mugogo SC 342/15.

It was contended that the failure to utilise the proper forms warranted striking off, with reference to Zimplats v Marko Phuti SC 21/16, where the Court explained the equitable approach adopted by the Labour Court.

The 1st respondent submitted that the court could not be invited to deal with two different applications governed by different procedures as a single application. The correct procedure would have been for the applicant to first file an application for condonation with the court, followed by an application for leave to appeal with a Judge in Chambers. Further Chomurema v TelOne SC 86-14, advocated that an application for condonation should be heard before an application for leave to appeal.

The 1st respondent had also raised a further preliminary point, namely that the founding affidavit filed by the applicant was fatally defective. This was based on the fact that the applicant has referred to an affidavit deposed by Gift Madyike, who had been an applicant in the previous application which was withdrawn but was now 2nd respondent The applicant had also incorporated the averments of this withdrawn affidavit, by stating that, “I incorporate the averments contained in the Founding Affidavit by Gift Madyike as if they are my own…” in doing so it was also the 1st respondent’s position that the applicant had inadvertently relied on evidence that was no longer valid. Consequently, it was contended that the application was fatally defective and had to be struck off.

The applicant, per contra, submited that the preliminary points were trivial and had to be treated as such. The applicant refered to Air Zimbabwe v Chiku Mensa & Anor SC 89-04, where it was held that a person should not be allowed to escape the consequences of his or her misdeeds. Further reliance was placed on Mupandasekwa v Green Motor Services (Pvt) Limited SC 30-15, where the Supreme Court emphasised that procedural irregularities should not outweigh the guilt of an appellant. In other words, a person should not be reinstated simply on the basis of a procedural irregularity.

Regarding the first preliminary point, the applicant submitted that Rule 24 of the Rules addressed the issue of adoption of incorrect forms and provides that instituting a court application instead of a chamber application, or vice versa, did not constitute a ground for

dismissing the application. The applicant further submitted that the 1st respondent had not in any event alleged any prejudice arising from the adoption of the different forms.

With respect to the second preliminary point concerning the alleged defect in the Founding Affidavit, the applicant submitted that the point was without merit and did not warrant striking off the application.

EVALUATION

In addressing the 2 points in limine as taken, the court found that the first preliminary objection was devoid of merit and therefore fell to be dismissed. The question whether a litigant may competently file a composite application was no longer open to doubt. It was an issue already settled. In Chomurema and Another v Telone SC 86-14, referred to by the applicant, the Supreme Court, per GWAUNZA JA (as she then was), had made it plain that there is nothing to prevent the Labour Court, in the interests of the expeditious resolution of matters, from entertaining a composite application. Such an application may properly combine an application for condonation of the late filing of an application for leave to appeal with the substantive application for leave to appeal itself.

As regards the forms of the proceeding adopted, the court was similarly of the view that the objection lacked merit. Rule 24 of the Labour Court Rules provides in unambiguous terms that the mere fact that a party has instituted proceedings by way of a court application instead of a chamber application, or conversely by way of a chamber application when he or she ought to have proceeded by way of court application, did not in itself constitute a ground for dismissal. The choice between one form and the other was therefore, in principle, immaterial. It was also clear that in this matter before the court, no such prejudice suffered had been demonstrated by the 1st respondent The court therefore disregarded the objection founded on the alleged use of an incorrect form.

Turning to the second point in limine, which was raised through oral submissions, the court was of the view that the objection was well taken. The applicant was seeking to rely on averments contained in a Founding Affidavit deposed to by one Gift Madyike in another matter under reference LCH1301/24 that was withdrawn That matter, however, was withdrawn by after the applicant had conceded to fatal defects in that application., It was apparent to the court that the applicant through the statement made which read as follows: “I incorporate the averments contained in the Founding Affidavit by Gift Madyike as if they are my own” was

seeking to place reliance on a document that was no longer before the court. The fact that the same document was being used to highlight the background facts in the matter was neither here nor there. Once a matter has been withdrawn, the pleadings filed therein cease to have any force or effect. They are no longer properly before the court and cannot be relied upon in fresh proceedings unless they are re-filed or adopted in accordance with the rules.

While it is true that there may be no express rule explicitly prohibiting incorporation by reference of pleadings from another matter, the practice is inconsistent with orderly procedure. Litigation must proceed on the basis of pleadings formally placed before the court. As was stated in Dube v vs Premier Service Medical Aid Society and Premier Service Medical Investments SC05-22 that the court is enjoined to determine matters based on what is properly placed before it, and not on speculation or reference to extraneous material. This means that to permit reliance on pleadings withdrawn from the record of another case would be to invite confusion and disorder in the administration of justice. This was apparent in this case in light of the fact that, in the judgment rendered under case number LC/H/464/24, the same Gift Madyike was expressly barred from participating in any further hearing on grounds of bias. That judgment, unless and until overturned by the Supreme Court, remains extant and binding. For the court to therefore allow the applicant to rely on Madyike’s withdrawn affidavit in the circumstances would amount to an indirect circumvention of a final judgment, a course of action the court clearly could not sanction.

It was also clear to the court that the court was being requested to sift through documents of a matter that was no longer before it in order to fully comprehend the background facts of the matter before it. It was also not lost to the court that the applicant was seeking to incorporate not just the averments as made by Gift Madyike in the Founding Affidavit under LCH 1301/24 but was also incorporating the parties in those proceedings. This is highly undesirable.

It was on that basis that, the court found that the second point in limine was meritorious and upheld the preliminary point as taken.

Consequently, the court handed down an order in the terms as referred to in the introductory part of this judgment. The foregoing constitutes the court’s reasons for the order so made.