Samuel Hova v Petrozim Line (Pvt) Ltd & 4 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/215/2023
HARARE, 23 JUNE 2023 & 14 JULY 2023
CASE NO LC/H/534/22
SAMUEL HOVA
APPLICANT
PETROZIM LINE (PVT) LTD & 4 OTHERS
RESPONDENT
Before the Honourable G. Musariri Judge:
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==============================SAMUEL HOVA

Before the Honourable G. Musariri Judge:

For Applicant    Mr P. Mutasa, Unionist

For Respondent    Mr A. Maguchu, Attorney

MUSARIRI, J:

At the onset of oral argument in this matter respondents raised 2 points in limine which applicant opposed. I shall deal with the points ad seriatim.

1. That the application was filed prematurely:

   In the course of oral argument before this Court respondent realised the shaky foundation of the point and proceeded to abandon it. Nothing more needs be said about it.

2. That applicant does not have the right to file the application for review

   The point is aptly captured in respondent’s heads of argument thus

   “9. It is submitted that the applicant lacks the right to make this application for the reason that he wilfully absconded the hearing.

10. It is trite that the law bars, an employee who wilfully absconds a hearing from seeking a review of the proceedings. See Pacprint (Pvt) Ltd v Khumbula & 10 others SC 67/17 where the Supreme Court held that;

   “In casu the mere boycotting of their hearings by the respondents disentitled them from challenging the outcomes of the hearings or any procedure that may have been adopted during the hearings. By their non-appearance the respondents waived the right to defend themselves. On the other hand, by bringing the application for review they sought to defend themselves. In effect this translates to approbating and reprobating at the same time. The law does not countenance this prevarication. The two positions or stances are mutually exclusive and cannot co-exist...

11. The issue is then whether the Applicant made deliberate decision not to attend the hearing. He did.”

On the other hand, applicant stated that he failed to attend the hearing on the 15th June 2022 because at the relevant time he was required to appear for another hearing before a Labour Officer.

The essence of the point raised is that applicant waived his right to defend himself at the disciplinary hearing. Waiver is a matter of fact. It is not lightly inferred in order to protect the impugned right. Whether or not applicant wilfully absented himself from the hearing is one of it if not the substantive issue/s raised by the application for review. The corollary is whether applicant had reasonable or lawful cause for his absence. These are all matters that this Court is called upon to determine after a full hearing of the application. They are not matters for disposal in limine. Respondent is at liberty to argue the point in due course.

Wherefore it is ordered that

1. The Respondent’s point in limine be and is hereby dismissed;

2. The Registrar of this Court is directed to re-set the matter for hearing on the earliest available date; and

3. Costs shall be costs in the cause.

G MUSARIRI
J-U-D-G-E
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