SPCA Harare v Forgive Chimuka & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/69/25
HARARE, 13 SEPTEMBER, 2024
CASE NO. LC/H/633/24
SPCA HARARE
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 13 SEPTEMBER, 2024

SPCA HARARE

JUDGMENT NO. LC/H/69/25

CASE NO. LC/H/633/24

APPLICANT

Versus

FORGIVE CHIMUKA

NATIONAL EMPLOYMENT COUNCIL DESIGNATED AGENT C MHARIWA (N.O)

1ST RESPONDENT

2ND RESPONDENT

Before the Honourable Kudya J;

For the Applicant

For the 1st Respondent

For the 2nd Respondent

- Mr. Beru, Administration Manager

- S.M. Mandizha, Legal Practitioner

- No appearance

KUDYA J:

Applicant filed with this court an application which it styles” Chamber Application” to rectify a defective notice of appeal and reinstatement of the appeal. This application was made following a striking off order of 20 May 2024 where the applicant’s appeal was struck off the roll for the reason that it was in breach of rule 11(a) as amended by Statutory Instrument 3 of 2023. It is the above described application which is the subject of this judgment.

The brief background of the matter is that the employee one Chimuka was dismissed from employment by the applicant employer.

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This was in relation to misconduct charges levelled against Chimuka that he had ill-treated a dog that was in the applicant’s custody. Applicant is a n organisation that takes care of animals especially dogs and cats. It was therefore irked by Chimuka’s conduct which in its view went contrary to the organisation’s objectives. The infraction led to Chimuka being called before a disciplinary body which found him guilty and dismissed him from employment.

The matter eventually went to the DA on appeal who the applicant argues that the DA did not have the jurisdiction to deal with the appeal. It therefore decided to appeal to the Labour Court against the proceedings that were conducted by the DA. It however flouted the rule relating to provision of email addresses in the I.E.C.M.S system. Such an infraction caused Chimuka to successfully raise the point in limine that the appeal was in breach of the rules so it was consequently a nullity. The court noted that indeed the appeal was a nullity on account of a breach of the court rules. Following the striking off order the applicant then mounted the instant application.

At the commencement of the application both parties raised points in limine. Applicant raised the point that the opposition filed in IECMS was irregular as there were 2 sets of opposition on the same matter, one dated 2 July 2024 and the other 16 July 2024. Chimuka explained to the court’s satisfaction that the 16 July 2024 document was only meant to cure the defect in the 2nd July 2024 document where the 2nd July 2024 had been improperly scanned and left out some pages which were imperative to be there to make the document complete.

The court accepted that no prejudice could flow from allowing a party to use before it a complete document than an incoherent one which would not present the full facts of the matter. It is in the spirit of completeness of record that the court allowed Chimuka to rely on the complete document of 16 July 2024. This put to paid the point in limine by the applicant.

On the other hand, Chimuka also raised a point in limine that applicant had used the wrong procedure to cause its matter to be re-enrolled and entertained again. Its position was that if the SPCA intended to be indulged it ought to have filed a condonation for late noting of an appeal and an extension of time within which to file the appeal since the earlier one had been struck off. The applicant was however adamant that it had used the correct procedure. It stated that its understanding of Practice Direction 3/13 was that it only had to regularise the anomaly on the

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struck off matter within 30 days. It therefore was convinced that the instant application was the correct application.

For expediency the court allowed the parties to proceed to address it on the main application and stated that it would rule on both the points in limine and the merits at the same time.

Point in limine on use of wrong procedure.

The meaning of Practice Direction 3/13 was given in the case of Dube v PSMAS SC 73/19. It is clear from a reading of the cited case that the mischief behind the Practice Direction is to give a party who would have flouted the rules a chance to try and make amends and come back with the corrected process so that the matter can be entertained on the merits. For one to come back before the court again one has to seek condonation for the late noting of his appeal or application before the appeal/application can be entertained.

In the case at hand, the court notes that the applicant has inelegantly crafted the heading of its application yet it is clear that it is seeking the court’s indulgence to come before it again now with the papers in order. It is granted that correct referencing and adherence to the rules should be done but where such militates against the achievement of the ends of justice the court should depart from same. See Mapondera v Freda Rebecca SC 81/22. In the case at hand, the court accepts that the applicant’s representative is not clothed with the same legal expertise as that of trained lawyers. The court is therefore of the view that the inelegance on theheadingof the application can therefore be excused so that the matter progresses to its merits. See Rule 32 Labour Court Rules.SI 150/17 The point in limine is therefore dismissed on account of the indulgence extended to the applicant.

Merits

The excuse for non-compliance with Rule 11 was given as being that the applicant did not clearly appreciate the new rules under IECMS. The purpose of Rule 11 is to ensure that process gets to both parties and nothing more. In the case at hand since the applicant has now purged the defect it can be excused and be heard on what it styles the real issue for discussion.

The applicant says it intends to raise the issue of absence of jurisdiction on the Designated Agent’s part. It is settled that issues around jurisdiction are review issues and not appeal issues. The court

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is therefore satisfied that applicant does not have a good case which can detain the court from an appeal perspective where it is clear that it intends to raise review issues in an appeal.

It is settled that the cumulative effects of the condonation tenets is what rules the day. See Jansen v Acavalos 1993(1) ZLR216. In thematter athand even though the applicant has a plausible excuse for falling out of time it dismally fails the test on prospects.

The rest of the tiers, that is convenience of the court and importance of the case are therefore blemished by the prospects test.

In a nutshell the totality of the tenets of condonation thereforefavors the refusal of the relief sought. The condonation application consequently fails.

On costs, the court’s view is that there is no need to penalize either party for trying to assert what they perceive as their rights. In the case at hand, the wrong procedure intends to be adopted so the sought indulgence cannot be granted. The application therefore fails with each party bearing own costs.

IT IS ORDERED THAT:

Application being without merit it be and is hereby dismissed with each party bearing own costs.

Sadowera Kuwana Legal Practitioners- 1st Respondent legal practitioners

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