Brighton Sanyahangare v Yellowcob Enterprises (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/320/24
HARARE 18 JULY 2024 01 AUGUST 2024
CASE NO LC/H/553/24
BRIGHTON SANYAHANGARE
APPLICANT
YELLOWCOB ENTERPRISES
RESPONDENT
(PRIVATE) LIMITED
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============================== BRIGHTON SANYAHANGARE

YELLOWCOB ENTERPRISES
(PRIVATE) LIMITED

Before the Honourable G. Musariiri Judge:

For Applicant - Mr R. Masomere, Unionist
For Respondent - Mr T. Mupamhadzi, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court both parties raised points in limine. The points shall be dealt with in turn.

RESPONDENT

The point is expatiated in respondent’s heads of argument thus,

“1. It is submitted in limine that the application is fatally defective grounds for review are not precise and concise.
1.3 Ground 1 attacks a range of issues as a single ground. It is subdivided into other sub-grounds which attacks some other things. This with respect violates the basic tenants of a Notice of application or review in terms of the rules of this Honourable Court. Such a ground embarrasses the other party and makes it difficult for one to comprehend what exactly it ought to respond to.
1.7 The grounds of appeal are multiple, attack every line of reasoning or action of the Disciplinary Authority and do not clearly and concisely define the issues which are to be determined by this Court. The notice rather resembles an affidavit by virtue of it being argumentative in nature.
1.8 It is on this basis that the cross-appeal (sic) ought to be dismissed with costs on a higher scale as the grounds of appeal (sic) lacks precision and clarity.”

Applicant countered through his heads of argument thus,
 “1 Response to point in limine by respondent: - Respondent alleges that the applicant does not “state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected” yet the grounds are clearly set out on page 1 of the application through to page 2 and these are Bias, Irrationality and Predetermined outcome. They are explained in brief and then expanded in the founding affidavit attached in support of the application. Applicant is failing to see therefore, where the respondent’s point in limine is coming from. The point is therefore baseless and devoid of merit and must be dismissed.”

The notice of application for review sets out three (3) grounds for review being bias, irrationality and predetermined outcome. In the course of oral argument respondent abandoned its objection to the $3^{\text{rd}}$ ground (predetermined outcome). As for the $2^{\text{nd}}$ ground (irrationally) it is just 6 lines which essentially say the decision impugned was based on applicant’s absence from the hearing without considering the reasons for the absence. This Court considers it as a cognisable ground for review. Apparently, respondent’s real beef is about the $1^{\text{st}}$ ground (bias). The ground was broken down into 9 paragraphs. These cover a range of actions by the Disciplinary Authority (DA) during the course of the proceedings. At first blush it is difficult to say what it is exactly that applicant wants reviewed.

Rule 20(1) of the Labour Court Rules, 2017 requires that a party seeking review by this Court should complete a notice of review in FORM LC5. The said Form reads as follows,

: Take notice that the Applicant hereby applies for review on the following ground: Grounds For Review (must be concise and precise)…”

Though the $1^{\text{st}}$ ground for review is long, it is broken down into paragraphs which are concise enough to be understood individually. Since the Rules permit a respondent to respond by affidavit, it can deal with each paragraph individually or the whole ground in whatever way it deems suitable. On that basis respondent’s complaint is discounted.

**APPLICANT**

Applicant argued that respondent’s affidavit is irregular as the deponent;

“…. has sworn to facts that are not within his personal knowledge and the facts relate to events and occurrences that happened in his absence. He does not file supporting affidavits by any person or persons that actually witnessed such events… In the ultimate it is prayed that the application be treated as unopposed and an order made according to the draft.”


Rule 20(2) prescribes that a party wishing to respond as in casu, shall complete Form LC2. The Forms reads

“… Further take notice that the attached affidavit shall be used in support of the Respondent’s case.”

It does not specify the contents or form of the affidavit. Applicant argued that the opposing affidavit being based on hearsay evidence is irregular. He relied on the case of

Hove v Berea Mining SC 50/23

Per Chitakunye JA at p 68

“In addition, if the applicant’s legal practitioners truly experienced challenges in accessing the judgement and in uploading the application on the IECMS platform, they ought to have deposed to an affidavit in support of the applicant’s assertions on the difficulties they encountered…”

For starters this Court is not bound by strict rules of evidence. Section 90A of the Labour Act Chapter 28:01 provides that

“(1) The Labour Court shall not be bound by the strict rules of evidence, and the court may ascertain any relevant fact by any means which the presiding officer thinks fit and which is not unfair or unjust to either party.”

Therefore, hearsay evidence is admissible but subject to the due assessment of its probative value by the Court at the time of judgement.

Further the court in the Hove case supra did not invalidate the impugned affidavit as prayed for in this case. It simply noted that direct evidence is preferable to hearsay.

CONCLUSION

Applicant’s point in limine stands to be dismissed as devoid of merit, Respondent’s 1st and 2nd points will be dismissed for the same reason. The 3rd point was abandoned as noted earlier.


Wherefore it is ordered that

1. The Applicant’s point in limine be and is hereby dismissed.

2. The Respondent’s points in limine be and are hereby dismissed; and

3. The Registrar of this Court is directed to re-set the matter for continuation on the earliest available date.

G MUSARIRI
J-U-D-G-E
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