Brighton Batsirai Mubvumbi v Chairperson, SGMRCD Committee & Anor

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/233/2023
HARARE, 21 JULY 2023
CASE NO LC/H/206/23
28 JULY 2023
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HARARE, 21 JULY 2023	CASE NO LC/H/206/23

28 JULY 2023

BRIGHTON BATSIRAI MUBVUMBI	APPLICANT

CHAIRPERSON, SGMRCD COMMITTEE	1st RESPONDENT

ST GILES MEDICAL REHABILITATION CENTER	2nd RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	- Mr G. Sithole, Advocate	-

For Respondent	- Mr B. Mahuni Attorney

MUSARIRI, J:

At the onset of oral argument in this Court respondents raised a point in limine which applicant opposed.

The point is summarised in respondents opposing affidavit as follows

“2. In limine

The Applicant is approaching this Court without exhausting the Appeals process in that he applied for review of this to this Court without exhausting the remedies provided for in section 10 of the Welfare and Educational Institutions Employers Association Code of conduct which the authority which was used to charge the Applicant.”

Disciplinary proceedings by respondents against applicant were conducted and determined by the Hearing Authority (P. Chikoore) on the 15th February 2023. On the 20th March 2023 applicant appealed the determination to respondent’s Chief Executive Officer (C.EO.). Whilst that appeal was pending applicant filed the present application for review by this Court on the 22nd March 2023. In this Court applicant prays that Chikoore’s decision be set aside. Apparently that is the same or similar relief he seeks in the appeal to the CEO.

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LC/H/206/23 In his application in casu applicant did not disclose that he had appealed to the Chief Executive Officer.

Respondent argued that applicant’s conduct violates the provisions of section 124 (1) of the Labour Act Chapter 28:01 hereafter called “the Act” which reads,

“(1) Where any proceedings in respect of any matter have been instituted, completed or determined in terms of this Act, no person who is aware thereof shall institute or cause to be instituted, or shall continue any other proceedings, in respect of the same or any related matter, without first advising the authority, court or tribunal which is responsible for or concerned with the second-mentioned proceedings of the fact of the earlier proceedings.” (underlined for emphasis.)

Applicant clearly violated the provision by his failure to inform the Court of his appeal to the Chief Executive Officer which he admits. However he sought to argue from the bar that the appeal has since been determined and therefore the point is now moot. As correctly argued by respondent what weighs in such a matter is the position as at the time the application was filed in this Court. At that point in time his application was invalid for failure to comply with peremptory provisions of section 124 of the Act.

Alternatively applicant was obliged to exhaust his domestic remedies before approaching the Labour Court. That position was affirmed in the case of

Muzengi v Standard 2002(1)ZLR 334(S) by Ziyambi JA at 338C

<<“...No special circumstances or good reason having been shown by the appellant to exist justifying his approach to the High Court, the appellant’s obligation to exhaust his domestic remedies was peremptory. Accordingly the application ought, on this ground alone, to have been dismissed.”

Applicant did not show the requisite “special circumstances or good reason” and thus should have awaited the Chief Executive Officer’s decision on his appeal, before approaching this Court. It is therefore concluded that respondents’ point in limine is well-founded in both statute and precedent.

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LC/H/206/23

Wherefore it is ordered that;

7 IHU1S14	S1IQQ1J If199XllYKILW LXSI1W

The application for review is struck off the roll for violation of section 124(1) of the Labour Act Chapter 28:01; and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E