Truworths Group of Companies v Brighton Mudambanuki & 55 ors

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/226/24
HARARE 05 MARCH ,2024
CASE NO. LC/H/1060/23
AND 20 MAY, 2024
In the matter between: -
Truworths Group of Companies
Applicant
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THE LABOUR COURT OF ZIMBABWE
HARARE 05 MARCH,2024
AND 20 MAY, 2024

In the matter between: -

Truworths Group of Companies
Applicant
Versus
Brighton Mudambanuki & 55 ors
1st to 56th Respondents
C. Mabika N.O- arbitrator
57th Respondent
And
National Employment Council for the
Commercial Sectors of Zimbabwe
58th Respondent
Before the Honourable L. Hove, Judge:
For Applicant : Mr. S. Sangula
For Respondent : Ms. S. Muhambi
HOVE J:

This is an application for review

Brief background

The 1st to the 56th Respondents who are applicant employees brought a claim for alleged non-payment of outstanding salaries and the dispute was referred for adjudication in terms of section 63 of the Labour Act [chapter 28:01] (the Act). The designated agent made a determination on 20 November 2023. The applicant was dissatisfied with the determination and filed this application for review alleging procedural unfairness and bias.

The application was opposed and at the hearing, both parties raised preliminary objections which are the subject matter of this determination.

Applicant’s initial objections
1. The notice of opposition is fatally defective
2. The opposing affidavit is defective


The respondent’s initial objections

1. The application is defective because the applicant’s and the supporting affidavits are not commissioned.
2. Non-compliance with rule 20 (1) of the labor Court rules, 2017.
3. The application was filed out of time
4. Applicant did not mention other respondents except for the first respondent Brighton Mudambanuki.

For convenience, the court will start by considering the respondents preliminary objections, if the application is indeed defective for any reason, the Court cannot proceed to consider the validity of the opposing papers.

Whether or not the application is in compliance with rule 20 (1) (a) and whether or not the application was filed out of time

The respondent does not state why it is of the view that there was non-compliance with rule 20 (1)
(a) and neither is it stated in the founding affidavit why it is believed that the application was filed out of time.

The failure by the respondents to clearly set out the grounds and basis of its assertions in its affidavit is clearly embarrassing. It is not made clear to the other side what issues it has to answer to. The court is also left unsure as to what issues are being placed before it for adjudication. I agree with the submission made by the applicant that;

“It is left to the court to speculate on the reasons why. It is trite that the papers a litigant seeks to rely on must clearly set out the grounds and bases relied on and it is not for the court to have to analyze a document in an attempt to establish what grounds the litigant intended to rely upon but did not clearly articulate.”

See in this regard the case of Chikura NO & anor v Alsham’s Global BVI Limited.

The respondent’s failure to elaborate on these two preliminary points it raises show that it has failed to prove its assertions. The preliminary points are thus found to be without merit.

Whether or not the affidavits were commissioned;

The other preliminary point raised was that the applicant’s founding and supporting affidavits were not commissioned and hence were not properly before the court. The record shows that the affidavits were commissioned and this point is clearly without merit.

Whether or not the application is fatally defective;

The other preliminary point raised is that the application was fatally defective for failure to mention all the respondents it refers to just one respondent and 56 others.

These 56 others remained unnamed. The court is not made aware as to who these 56 others are. This failure to mention the 56 other respondents is fatal to the proceedings. The proceedings are being brought against 56 unknown respondents.

The applicant submitted that the failure to name the respondents was caused by the respondents themselves who cited the parties as such in their claims before the arbitrator. The omission should therefore not be visited on the applicant in casu. It was argued that this error in citation of the respondents originated with the respondents themselves and they should not be allowed to benefit from their own wrong. In support of its arguments in this regard the applicant referred the court to the cases of Marange resources (Pvt) Ltd v Care Mining & Mineral PL (in liquidation) & ors SC 37/16 and Mudzengi & ors v Hungwe & onor 2001 (2) ZLR 179 (H) the court stated that;

“This court has had occasion to reiterate on the common law position that no one maintains an action arising out of his own wrong.”

The cases referred to did not deal with facts similar to those of this case. The parties in those cases had been properly cited and the cases were properly before the court whereas the respondents in this case have not been properly brought before the court.

In casu, the respondents are not properly before the court for the court to say that they cannot benefit from their own wrong, they must first be properly before the court. In this case the respondents have not been brought before the court for this reason this preliminary point has merit.

Having found thus, it follows that the application is not properly before the court on account of the applicant’s failure to properly cite the respondents. No useful point is served by considering the applicant’s preliminary objections to an application that I have found to be improperly before the court.

In the result the following order is made;

**Order**

1. The respondents first 3 preliminary points are without merits and are hereby dismissed.
2. The respondents last preliminary point being with merit, it be and is hereby upheld.
3. The application is improperly before the court and it be and is hereby struck off the roll.
4. Each party will bear its own costs.


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