Bishop Nyaruwata v Assa Abloy (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF
CASE NO LC/H/353/24
JUDGMENTNO LC/H/346/24
ZIMBABWE HARARE, 15 JULY, 2024 AND 28 AUGUST 2024
APPLICANT
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 15 JULY,
2024 AND 28 AUGUST 2024

BISHOP NYARUWATA
And
ASSA ABLOY (PVT) LTD

Before the Honourable Kachambwa J,
Judge;

APPLICANT
RESPONDENT

For the Applicant: Mr Gwisai (Legal Practitioner)
For the Respondent: D. Kanokanga (Legal Practitioner)

KACHAMBWA, J:

Preliminary

1. On the 5th of July 2024 this court granted leave to appeal a decision of this court. The court was desirous to see the issue of jurisdiction that was before it looked at by a superior court of more than one Judge. This was clearly espoused to the parties. A few days after the order granting leave was issued there was a request for reasons for the order. This was not really surprising as the parties had had two bruising battles which clearly showed that there would be a long and arduous fight. Not that the case was complicated but apparently the parties were just up for it and seemed ready to raise all manner of technicalities.


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2. The Application

This is an application for leave to appeal the decision of the court wherein the court declined jurisdiction in a matter involving a South African registered company and a contract of employment entered into in South Africa and a hearing on misconduct heard in South Africa with the hearing officer being South African and in South Africa on one side and the employee being a Zimbabwean based in Zimbabwe and doing his work in Zimbabwe on the other side.

The applicant argued that the court had erred on the applicable law and therefore there was need for an appellate court to set aside the findings.

OPPOSED

3. The application was opposed. The respondent argued that there was no attack on the ratio *decidendi* and to that extent the draft notice of appeal was fatally defective. That being so, it was argued that there were no prospects of success in this intended appeal. The application for leave to appeal should therefore fail on that ground. On the other hand the applicant asked that the point in *limine* be dismissed as it was addressing prospects of success which is not a point in *limine* but an issue that should be dealt with when looking at prospects of success.


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 4. The court raised its concern that the issue of jurisdiction on a foreigner is not a new issue and yet the parties had not brought up even the arguments that are taught at law school on a peregrinus neither had any party referred to any precedent. This same observation is also made in the judgment the subject of the intended appeal. To this concern the applicant responded that what the court was raising concern on are general principles of common law whereas the present dispute was based on statute. On this the response was that Labour relations were contractual and what the applicable law was is a contractual issue. Once again there was no reference to any precedent by either party. The applicant said that the finding that the applicable law was South African law by contract was not attacked and as such the jurisdictional issue is resolved and unscathed. The intended appeal is therefore fatally defective.

The court felt cheated by the parties for lack of a better word. It felt unassisted once more.

THE REASONS FOR THE ORDER

5. The court was of the view that what was at the centre of the fight is the applicable law. As much as the court was in no doubt about its decision this was an opportunity to have the issue effectively put to rest. The failure by the parties to cite any precedent was the more reason why the court was not against the application. There is need to put the argument to rest. It would be a loss of an opportunity to allow any technical issues to frustrate the appeal. In any case the court did not want to appear to be protecting itself from scrutiny. Justice is better served by allowing the application and therefore giving a chance for the clarification of the position of the law.

In the result the application for leave to appeal was granted in order to enable the legal point to be established once and for all. The court did not award costs against the losing party as is the usual case. This was on the understanding that the opposition to the application was not a hopeless opposition. Further this is an important case whose passage should not be hindered by costs. It is an appeal that is otherwise encouraged.

In the result the application for leave to appeal be and is hereby granted with each party bearing its costs.
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