Sibongile Chinogona v KMP Holdings (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/543/16
HELD AT HARARE 12 MAY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/543/16

HELD AT HARARE 12 MAY 2016				CASE NO LC/H/REV/35/15

& 23 SEPTEMBER 2016

In the matter between:

SIBONGILE CHINOGONA				Applicant

And

KMP HOLDINGS (PVT) LTD				Respondent

Before The Honourable L Kudya, J

For Applicant			T Nyakunika (Legal Practitioner)

For Respondent		D Tandiri (Legal Practitioner)

KUDYA J:

This matter was set down as a review at the instance of the applicant employee against a decision by the respondent employer where the employer had transferred the applicant to one of its stations.

On the set down date 12 May 2016 it was brought to the court’s attention that the applicant has since been dismissed from employment hence any decision on instant review would only be of academic relevance.  In that regard the parties requested a chance to dialogue over that with a view to applicant withdrawing his review application on account of its academic nature.  On 17 June 2016 and on 28 June 2016 the parties advised the court by correspondence dated as styled above filed of record that dialogue had not yielded the desired result hence the parties were agreeable that the court disposes of the matter on the basis of the papers already filed of record.  It is against this background that the instant judgment addresses the review application detailed above.

The applicant’s argument on the review was that he was transferred to Mutare in bad faith and was not afforded the right to be heard, neither were his personal circumstances considered.  He therefore prayed that the court annul that transfer as being bad at law.  As stated earlier on it is common cause that the instant review has been overtaken by events that is the applicant has since been dismissed from employment.  To that end whatever decision is to emanate from this review would be a brutum fulmens.  The law is clear that courts shall not be called upon to hand down brutum fulmens	The remedy available in the review application if it were rule to be merited would have been a re-doing of the whole transfer process since the prerogative to transfer employees rests with the employer but such has to be done procedurally.  (See cases of insert).  Such a remedy has been put beyond this court’s reach by the dismissal order.  Guruva v Traffic Safety SC 30-08

To that extent delving with the matter on its merits would be on academic exercise which this court cannot engage in as it would be purely an exercise in futility.  In the result the review application  is dismissed for being bad at law an account of the practical niceties be derilling it.

IT IS ORDERED THAT

Review application being bad at law on account of it being bedevilled by a number of practical niceties which can render the court’s decision a brutum fulem it be and is hereby dismissed with costs.

Rubaya & Chatambudza, applicant’s legal practitioners

Tandiri Law Chambers,  respondent’s legal practitioners