Benjamin Tazvivinga v OK Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/74/24
HARARE, 22 NOVEMBER, 2023
CASE NO. LC/H/274/23
AND 27 FEBRUARY 2024
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/74/24 HARARE, 22 NOVEMBER, 2023		CASE NO. LC/H/274/23 AND 27 FEBRUARY 2024

BENJAMIN TAZVIVINGA	APPLICANT

Versus

OK ZIMBABWE LIMITED	RESPONDENT

Before the Honourable Kudya J;

For the Applicant	- B. Tazvivinga (Applicant)

For the Respondent	- Mrs R.T.L Matsika (Legal Practitioner)

KUDYA J:

This is an application for leave to appeal at the instance of the employee. The application is opposed by the employer on the basis that it is bad at law and that it fails to meet the test for such applications. Each of the issues discussed in the application are addressed below.

It is settled that leave applications succeed on the basis that the applicant is raising issues of law that need determination by a superior court or that on the merits the applicant has a plausible case. See Dombodzvuku v CMED SC-31-12. In limine the employer argued that the employee joined more than a single ground of appeal in his notice of appeal to the Supreme Court. It reasons therefore that such an approach is framed upon by the law as it militates against the requirement that appeal grounds be precise and concise. See Kunonga v CPCA SC-25-17.

In particular the employer notes that the employee raises issue with a non-existent charge and the issue of dishonesty in the same paragraph. It goes further to say that the employee raises the issue that there was no hearing as per the charge sheet and that no proof of his breach was adduced. It reasons also that the employee simplistically states that the rules were breached without demonstrating what rules were breached. It also states that the intended appeal is fatally defective for the reason that the relief sought does not specify what the employee wants to get after the setting aside of the matter. The employee also states that the indeed appeal is divorced from what the court decided which is the merits of the misconduct that was levelled against the employee and not the process leading to his job loss. It also states that the issues of the charge with the employee now wants to take up with the Supreme was never raised with all the lower bodies hence the employee wants to make the Supreme Court a court of 1st instance in that regard an act which is contrary to law. See Dzvairo vs Kango Products SC-35-17.

In the final analysis the employee maintains that the alleged flouting of the rules cannot be styled technicalities since a defective notice of appeal cannot see its day in the Supreme Court. To that extent leave relief should accordingly be denied on the basis of the point in limine.

A reading of the appeal grounds indeed speaks to the concerns raised by the employer. It is patent that there has been a mingling of appeal grounds and relief silent on ultimate relief. Being that as it may the court does not lose sight of applicant’s self acting status which may explain the lack of clarity on the grounds. It is settled that courts need be more concerned not about the form but the content. See Moyo v Nkomo SC 34-14. It is granted that the grounds are inelegantly crafted but at least one can appreciate what the applicant is seeking. For that reason the point in limine should fail.

Merits

Turning to the merits of the leave application it is clear that applicant has departed completely from what the court found hence the application is ill conceived to that extent. He harps primarily on issues which the court adjudged were review issues and which parties were never asked to address the court on.

It is patently clear that no point of law is made out by the applicant and no merited matter on appeal is set out. To that extent it would be futile to grant the applicant the leave which he is seeking. In the result the application lacking in merit should be dismissed.

IT IS ORDERED THAT

Application for leave to appeal to Supreme Court being without merit it be and is hereby dismissed with costs on the ordinary scale.

Benjamin Tazvivinga – Applicant in person

Wintertons Legal Practitioners- Respondent legal practitioners