Alfred Kunaka v Prisca Chirauro & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/30/25
HELD AT HARARE 20 JANUARY 2025
CASE NO. LC/H/1217/24
AND 27 JANUARY 2025
In the matter between: -
Alfred Kunaka
Applicant
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO. LC/H/30/25

HELD AT HARARE 20 JANUARY 2025
AND 27 JANUARY 2025

CASE NO. LC/H/1217/24

In the matter between: -

Alfred Kunaka

Applicant

And

Prisca Chirauro

1st Respondent

Macroeconomic and Financial Institute of Eastern & Southern Africa

2nd Respondent

Before Honorable Mr. Justice L.M. Murasi,

For Applicant C. Mateza

Ms. F. Sibanda for the Second Respondent arrived when Counsel for the Applicant was in the midst of making submissions under Rule 37 (b) of the Labour Court Rules.

MURASI J:

This is an application for review, brought in terms of rule 20(1) of the Labour Court Rules, 2017 (Hereinafter the Rules). The following background facts provide the context for this application.

I should state that the second respondent’s legal practitioner arrived late when the Court had indicated that both respondents were in default and the matter was proceeding in terms of Rule 37 (b) of the Labour Court Rules and the applicant’s counsel was in the midst of making submissions.

THE FACTS

The applicant was employed by the Second Respondent as a Caretaker. On 4 October 2024, he was suspended from employment without pay and benefits. A disciplinary hearing was scheduled for October 14, 2024, which the applicant attended with Mr. Casper Chimutsa as his representative of choice. However, an objection was raised that Mr. Chimutsa, purportedly a Trade Unionist, was ineligible to represent the applicant due to the applicant’s non-membership in that particular Trade Union. After deliberation, Mr. Chimutsa excused himself from the proceedings and stated that he could not represent the applicant. The applicant requested a postponement to engage alternative counsel. This request was declined, citing undue delay and financial prejudice on the 2nd respondent who had apparently incurred costs securing a Disciplinary Authority and an auditor who was to testify as an expert witness. The applicant was, however, granted several adjournments to secure alternative legal representation and proceeded as a self-actor until the arrival of Mr. Casper Mateza. The counsel indicated that he would be taking over as the applicant’s legal practitioner and made an application for a postponement in order to acquaint himself with the facts of the matter. This application was declined and a 15 minute adjournment was granted to enable the counsel to familiarize himself with the record. Mr. Mateza withdrew from the proceedings, asserting that 15 minutes was insufficient to read through the extensive records. Consequently, the applicant had to represent himself for the remainder of the proceedings. Aggrieved by this conduct of proceedings, he has now approached this court seeking an order to set aside his dismissal and reinstate him with full salary and benefits from the date of his suspension.

PRELIMINARY ISSUES

Owing to the non-appearance of both the first and the second respondents at the hearing, the Court proceeded to hear the matter in terms of rule 37(b) of the rules. Consequently, the applicant was required to motivate his application in the absence of the respondents.

Before hearing Mr. Mateza, counsel for the applicant’s submissions on the merits, the Court made a crucial observation and raised it as a preliminary issue. The issue pertained to the fact that the relief sought by the applicant in the draft order included a prayer for reinstatement without the statutorily required alternative prayer for damages *in lieu* of such reinstatement. The Court informed the counsel that in terms of section 89(2)(C)(iii) of the Labour Act [Chapter 28:01], this omission renders the draft order defective and consequently, the Notice of Review becomes defective. The Court invited counsel to address it on this point.

In addressing the point, Mr. Mateza stated that he was of the view that given the nature of the application, the appropriate relief would be to remit the matter for the proceedings to be held *de novo*. He sought to argue that if the court proceeded to set aside the proceedings, the result would be that parties would revert to the status quo and what would be left is a suspension and a charge. He further stated that his appreciation of the import of section 89 was that the issue of damages would arise in the instance where the employer fails to reinstate an employee where a finding is made of an unfair dismissal. The counsel further contended that similar applications had been granted in the absence of an alternative prayer for damages in lieu of reinstatement in other comparable cases.

**THE APPLICABLE LAW AND ANALYSIS**

I find it pertinent to point out that in the present matter, the respondents did not raise the issue of the defective nature of the draft order as a preliminary point. However, I wish to clarify that the Court possesses discretionary power to raise material issues and invite parties to address it on such points, even in circumstances where they have not been explicitly raised by the parties. To this end, I am fortified by the remarks made in the case of *Nzara & Ors v Kashumba No & Ors 2018 (1) ZLR 194 (S)*, wherein the court held as follows:

“The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court’s mind but has not been raised by the parties or addressed by them either in their pleadings in evidence or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter…”

While I acknowledge that the Court cannot embark on an independent exploration, it is established in precedence that it retains the authority to consider legal or factual issues that may not have been explicitly raised in pleadings, evidence, or submissions. This approach ensures that all relevant aspects are considered, even beyond the contentions of the litigants. In that vein, it is my considered view that the issue raised by the Court with respect to the competence of the relief sought fits the scope of a ‘point of law’ as conceived in the *Nzara* case (Supra). It is an issue that is rooted in statute, particularly, Section 89(2)(C)(iii) of the Act. The relevant section reads as follows:

“…In the exercise of its functions, the Labour Court may…
(c) In the case of an application made in terms of subparagraph (i) of subsection (7) of section ninety-three, make an order for any of the following or any other appropriate order –
(iii) reinstatement or employment in a job:
Provided that – (i) any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment…”

A careful examination of the aforementioned section unequivocally reveals the clause’s peremptory nature, thereby divesting this court of any discretion to overlook non-compliance. I would go further to opine that non-compliance with the clause goes beyond a mere technicality as the statutory provision sets out what ought to be done and mandates strict adherence. *In casu*, a reading of the applicant’s prayer on pages 3(The Notice of Review) and
 42(The draft order) of the record shows that the applicant seeks reinstatement without the alternative of damages. It is now well established in precedence that an order for reinstatement is incompetent without an alternative option for the payment of damages. It is also trite that the Court cannot formulate this alternative order *mero motu* but the same has to be prayed for. It would have been a different issue had the applicant restricted its prayer to the relief of remitting the matter for the proceedings to be conducted *de novo*. However, by expressly including reinstatement in the draft order, it became imperative to also include an alternative prayer for damages to ensure compliance with section 89 of the Act. This alternative is absent and it would follow that the present notice of review is defective.

To substantiate the views that I have adopted, I find it pertinent to cite case authorities that have addressed similar issues. I must also emphasize that this court is bound by Supreme Court decisions.

In *Zupco v Chisvo* 1999 (1) ZLR 67 (S), McNally JA affirmed the pertinence of an alternative prayer for damages in the context of a statutory provision akin to section 89(2)(C) (iii). He had the following to say:

> “We are aware that the alternative of damages is an essential part of any order of reinstatement, in terms of the clear provisions of s 96(1)(c) of the Act [Chapter 28:01] . . .”

In *Mandiringa & Ors v National Social Security Authority* 2005 (2) ZLR 329(H) at 333F, MAKARAU JP (as she then was) adopted the same position and held as follows:

> “…It is therefore the settled position of our law that, in ordering reinstatement in terms of the Labour Act, the Labour Court, labour officers and arbitrators appointed under the Act are bound to assess damages in lieu of reinstatement. Any judgment, determination or award by these officials that fails to do so is liable to be interfered with as misdirection or as failing to comply with the Act in a material way. An award that orders reinstatement of applicant without awarding a specified amount of damages in lieu of reinstatement is incomplete and consequently, incompetent and cannot be registered in terms of s 98(14) of the Act as an order of this court…”

Further, in *Hama v National Railways of Zimbabwe* 1996 (1) ZLR 664 (S) at B the court made the following insightful remarks:

> “…Mr Anderson contended that where a discretion has been conferred on a tribunal, even if there is no relief sought in terms of that discretionary power, the discretion must be exercised notwithstanding the absence of a prayer. Without making any pronouncement on the issue, I am of view that the peremptory wording of the proviso to s 96(1)(c) leaves no room for doubt that the Labour Relations officer in his determination is duty-bound to make an assessment of damages as an alternative to reinstatement.”

Mr. Mateza attempted to amend the prayer in the Notice of Review during the discussion with the Court on this matter, implying a recognition that the draft order was defective. The Court advised counsel that this would not be the appropriate procedure of rectifying the defect and granting such leave for an amendment at this point would equate to permitting leave to amend a nullity. This position was reiterated in the case of Jensen v Acavalos 1993 (1) ZLR 216(S) AT 220 F-G, wherein the court made the following remarks:

“…a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the Court is prepared to grant an application for condonation of the defect and to allow a proper Notice of Appeal to be filed, the appeal must be struck off the roll with costs.”

DISPOSITION

Due cognizance being given to the provisions of section 89(2)(C)(iii) of the Act and relevant case authorities, it is evident that the absence of an alternative prayer for damages renders the Notice of Review defective. This defect cannot be amended. Consequently, the Court lacks discretionary powers to overlook this deficiency. Therefore, it is my considered view that this point is dispositive of the matter, and there is no need to proceed to the merits of the case.

In the result, the following order is appropriate:

1. The Application for Review is hereby struck off the roll by reason of a defective draft order.
2. Each party to meet its own costs.

Chimwamurome Legal Practice
Caleb Mucheche and Partners Law Chambers

Applicant’s Legal Practitioners.
2nd Respondent’s Legal Practitioners
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