Rosemary Makwara v First Capital Bank Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/193/24
HARARE 27 MARCH, 2024
CASE NO. LC/H/117/24
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IN THE LABOUR COURT OF ZIMBABWE
HARARE 27th MARCH, 2024
AND 29th APRIL, 2024

ROSEMARY MAKWARA
V

FIRST CAPITAL BANK LIMITED

JUDGMENT NO. LC/H/193/24
CASE NO. LC/H/117/24

APPLICANT
RESPONDENT

Before the Honourable Chivizhe J;

For the Applicant - Mrs Z. Majena (Legal Practitioner)
For the Respondent - Ms P. Murove with Mr I. Nderere (Legal Practitioners)

CHIVIZHE J:

The matter was placed before me as an application for condonation for late filing of an application for review against the Respondent’s Hearing Officer’s determination handed down on 16th October, 2018. The application is premised on Rule 22 as read with Rule 20 of the Labour Court Rules, Statutory Instrument of 2017. The application is opposed.

BACKGROUND FACTS

The Applicant was employed by the Respondent. She was suspended from employment in July 2018 following allegations of misconduct. On the 14th of September, 2018 disciplinary proceedings were commenced against her.
 On the 16th of October 2018 Applicant was advised of her conviction on 2 counts of breach of category ‘D’ Section 11 subsection A (1) that is “any serious act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of your employment…” A penalty of Dismissal was consequently imposed upon her. The Applicant was aggrieved and appealed to the Grievance and Disciplinary Committee and subsequently to the NEC for the Banking Undertaking Appeals Board. Her appeal found favour with the NEC for the Banking Undertaking Appeals Board. The Board directed the setting aside of her conviction and the penalty of Dismissal in order to allow for correction of procedural irregularities in the disciplinary proceedings.

The Respondent however was aggrieved and noted an appeal to this court. In a judgment rendered under reference LC/H/98/19, this court dismissed the appeal as noted. The Respondent was still dissatisfied and noted an appeal to the Supreme Court against the decision of this court. On the 11th of January 2024, through an order under reference Civil Appeals No SC. 552 of 23 the appeal was struck off the roll and the decisions of the Grievance and Disciplinary Committee, the NEC Banking Appeals Board and the Labour Court were all set aside.

The Applicant has now approached this court with her application for condonation and extension of time to file an application for review. Although the parties made submissions on both merits and points in limine I find it convenient to assess initially as I ought to, the two points raised in limine.

In limine-Defective application

The Respondent, through its Heads of Argument has raised a point in limine that the intended application for review, should this court grant condonation, is ill-fated, as it does not have attached a draft order as contemplated by the Rules of this court. It is Respondent’s further contention that Rule 21(4) of the Labour Court Rules, 2017 is very clear and states in a mandatory term that every application placed before this court must be accompanied by a Draft Order. The rule being couched in mandatory terms, it is Respondent’s position that a failure to so comply results in a nullity. On this basis therefore the present application stands to be struck off the roll with costs on a legal practitioner and client scale as Applicant has proceeded headlong with the application even after being alerted of its deficiency.

The Respondent contends that there is a further challenge, in that the court, cannot in the absence of a draft order, be able to assess whether or not the intended application for review has prospects of success, as it is through a draft order that the relief which is sought to be granted is placed before the court. The Respondent has referred to Yunus Ahmed v Docking Safaris SC 70/2015 where the Supreme Court found an application to be fatally defective for failure to attach a draft order. In oral submissions, Counsel for Respondent reiterated the position that the applicant having failed to comply with a mandatory provision of the courts rules the effect is to render the present proceedings otiose. Reference was also made to Tobacco Processors Pvt Ltd vs Togara Mutasa SC 12/21. Respondent’s Counsel did not agree with Applicant’s position that having utilised Form LC5 that form permitted her to state the relief on the Form itself rather than to attach a draft order.

Counsel for Applicant, in reply to the point, submitted, that the application was not fatally defective. It was Applicant’s position that as she intends to seek review the applicable provision is Rule 20 of the Labour Court Rules, 2017. The rule makes no mention of a draft order to be attached. It was Counsel’s further submission that an Applicant seeking review before this court under that rule has to complete Form LC5 which is the form utilised in this case. Form LC5 has a portion where one must outline ‘the relief’ sought and the Applicant has so complied. Applicant further contends that Rule 21 (4) is sufficiently catered for by her completion of Form LC5. The Applicant’s position therefore is that there has been substantial compliance with the rules of this court, the application ought therefore to be considered by the court as valid and the relief sought as competent.

Rule 22 of the Labour Court Rules, 2017 makes provision for an application for condonation of the late noting of an appeal and review.

The rule reads as follows:

‘(1) A party wishing to apply for condonation of the late noting of an appeal or review shall do so in Form LC 1.
 (2) An application in terms of this rule shall be accompanied by a draft of the intended notice of appeal or review.’

It is apparent from a reading of Rule 22 that the application in terms of this rule must be accompanied by a draft of the intended notice of appeal or review. As the Applicant intends to seek review in this court, her application clearly ought to have included the draft of the intended notice of review. It is also correct as contended by the Applicant that an applicant seeking review has to comply with rule 20 by completing Form LC 5. Form LC 5 makes no requirement for one to attach the draft order that one is seeking. It requires an applicant to complete a section for the prayer as sought. There is no doubt however that an Applicant is also required to comply with Rule 21(4) of the Labour Court Rules, 2017 which provides as follows;

“4. Every written application appeal, or review shall contain a draft of the order sought.” (My own emphasis)

It is clear that the above cited rule has to be read in conjunction with Rules 22 and 20 in this case. The Rule which is an omnibus rule caters for every written application in this court to have attached a draft order as sought by the litigant. The rule, being peremptory in nature, through the use of ‘shall’ has to be complied with. A failure to so comply with the rule results in a nullity. The court has been aptly referred by Respondent to Tobacco Processors Pvt Ltd vs Togara Mutasa SC 12/21.

The argument by the Applicant that, as she has substantially complied with all the other requirements under rules 22 and 20 the court must consider it adequate that the Applicant has included a prayer in Form LC 5 outlining the relief she will be seeking in this court. In other words she is contending that as there is a prayer reflected on Form LC5 that is adequate for the purposes of her intended application. The application that the Applicant intends to file, should condonation be granted, is an application for review. It is therefore necessary that the intended application must comply with the rules of this court. In order for this court to grant condonation the court has to necessarily consider the issue of prospects of success of the intended application for review. It is clear upon a perusal of Rule 21(4) that the intended application for review bears no prospects of success by reason of its failure to comply with the particular rule through the failure to attach a draft order. It is also clear that Form LC5 that Applicant seeks to hide behind cannot override the clear provisions in Rule 21(4). It is also correct that Form LC5 is utilised in filing an application for review, and **Form LC5** makes provision for a prayer. **Rule 21 (4)** however also places an obligation on an Applicant to attach a draft order. It is this draft order that the court can refer to in order to assess whether or not the intended application for review has success. In the absence of the draft order the court is hampered. It must follow therefore that the application before the court is fatally defective by reason of failure to comply with the mandatory provision in **Rule 21(4)** of this court rules.

**PRESCRIPTION**

The Respondent has also raised as a point *in limine* the issue of prescription. Although the issue was not canvased in Respondent’s papers it was raised during oral proceedings by Respondent’s Counsel. The submission was made that as it is a point of law it can be raised at any stage of the proceedings. The Applicant, through her Counsel did not object to the unprocedural taking of the point per se. Her Counsel instead responded to the point in opposition.

The point as taken by the Respondent is that the decision that the Applicant intends to have reviewed in this court having been handed down in 2018 the present application has been raised clearly out of time. The **Labour Act [Chapter 28:01]** through **section 94** provides for the institution of labour disputes within 2 years from when the dispute or unfair labour practice arose. The Respondent’s Counsel further submitted that in view of the Supreme Court findings that the proceedings in the **Grievance** and **Disciplinary Committee, NEC Appeals Board Labour Court** were all nullities, the Applicant has to be regarded as having done nothing for the 5 years. The court needed to take cognisance of the fact that it was not the Respondent’s fault that the Applicant had opted to utilise a wrong procedure in the first place. The court was urged to find that the matter had prescribed.

In response to the point, Counsel for Applicant, submitted that the point of prescription was improperly taken. **Section 94** of the **Labour Act [Chapter 28:01]** is reserved to and only applies to the Labour Officer’s power to entertain claims referred to them, it is not applicable to proceedings in the Labour Court. It was also Applicant’s submission that even if the court were to find the point of prescription is properly taken in this court, the court must note that she was not sitting at all times during the five years, she was instead pursuing her rights initially through the internal mechanisms then externally through the court structures. It is only that the Supreme
 Court when eventually the matter was placed before it, in the exercise of powers granted it under Section 25 (2) of that court’s rules, found that the initial appeal to the Disciplinary Committee was irregular as it was raising review grounds instead of appeal grounds. The court then declared all the proceedings a quo were nullities.

Section 94 of the Labour Act [Cap 28:01] provides as follows;

‘1) (1) Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice unless—

(a) it is referred to him; or

(b) has otherwise come to his attention; within two years from the date when the dispute or unfair labour practice first arose.

(2) Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.

(3) For the purpose of subsection (1), a dispute or unfair labour practice shall be deemed to have first arisen on the date when—

(a) the acts or omissions forming the subject of the dispute or unfair labour practice first occurred; or

(b) the party wishing to refer the dispute or unfair labour practice to the labour officer first became aware of the acts or omissions referred to in paragraph (a), if such party cannot reasonably be expected to have known of such acts or omissions at the date when they first occurred.’

It is clear from a reading of Section 94 that the adjudication of any dispute or unfair labour practice is restricted to two years from the date when the dispute or Unfair Labour Practice first arose. It would appear in this case there is no issue of a dispute or unfair labour practice having been referred to a Labour Officer. The Applicant intends to have reviewed before this court a determination by the Hearing Officer on the basis of perceived procedural irregularities. Does this qualify this matter to a ‘dispute’ in the sense of section 94? I believe it do. Although she did not specifically plead so, the point of prescription having been taken without notice to her, in the oral hearing, she is in other words claiming a continuing infraction of her rights by the employer. The Respondent’s view on the other hand is if the Supreme Court found all the proceedings a quo to be nullities it is as good as if she did not do anything and the court must find therefore that the present matter has prescribed.

My finding in this case is that it is a trite position at law that once an infraction is complete and is known, it prescribes within two years, if it is not actioned within the given period of two years. The circumstances of this case however show the Applicant was not just seated from the time she became aware of the decision of the Hearing Officer. She commenced action to challenge the proceedings. The fact that it took 5 years for the process to culminate with the order of the Supreme Court should not be held against her clearly. It is important to underline that the Supreme Court nullified the proceedings in the GDC, in the NEC Appeals Board and the Labour Court. The proceedings before the Hearing officer were not nullified and it is those Applicant intends to attack. It is for this reason the court would dismiss the point of prescription as raised in oral proceedings. The court, however, having found that the application is fatally irregular by reason of its non-compliance with **Rule 21(4)** it must follow that it amounts to a nullity. The application has to be struck off the roll.

In the result it is ordered as follows;

(i) The first point *in limine* as taken by the Respondent succeeds.
(ii) The second point *in limine* taken in oral proceedings is dismissed.
(iii) The application, being fatally irregular by reason of its non-compliance with **Rule 21(4)** it be and is hereby struck off the roll.
(iv) There is no order as so costs.
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