City of Harare v Kennedy Kabayi Ndlovu & 22 Others

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IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/406/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 15 OCTOBER 2025

JUDGMENT NO. LC/H/406/25 CASE NO. LC/H/778/25

AND 23 OCTOBER 2025

IN THE MATTER BETWEEN:

CITY OF HARARE	APPELLANT AND

KENNEDY KABAYI NDLOVU	1ST RESPONDENT

M BVUMAVARANDA	2ND RESPONDENT

C BINGWA	3RD RESPONDENT

C BUZUZI	4TH RESPONDENT

E.T. JENA	5TH RESPONDENT

P. JENA	6TH RESPONDENT

C.S. KAMOTA	7TH RESPONDENT

L. KANJUKULA	8TH RESPONDENT

M. MAGAYA	9TH RESPONDENT

I. MAKONI	10TH RESPONDENT

R. MAPIRA	11TH RESPONDENT

P. MARUFU	12TH RESPONDENT

CLEVER MAFOTI	13TH RESPONDENT

LOVEMORE MAFUKIDZE	14TH RESPONDENT

SOLOMON KWARAMBA	15TH RESPONDENT

GIVEMORE MASANGA	16TH RESPONDENT

MASIMBA MAUTSI	17TH RESPONDENT

FRANK MHIZHA	18TH RESPONDENT

NGONI MUTONGWIZO	19TH RESPONDENT

ANTONY NDORO	20TH RESPONDENT

FIDELIS RANDAZHA	21ST RESPONDENT

BLESSING TSWANGIRA	22ND RESPONDENT

HIPOLITUS ZENDA	23RD RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant	Mr. D. Kanokanga

For Respondents	Ms. M. Chinnwavadzimba

MURASI J.,

This is an appeal against the arbitral award determined by the Honourable Arbitrator Richard Masinire dated 18 August 2025.

The brief background of the matter is that the respondents are employed by the appellant in various capacities. A dispute arose sometime in 1997, and the matter was referred to the Labour Officer, who issued a determination in favour of the respondents, which determination was registered with the Magistrates Court. The appellant did not comply with the whole determination, claiming unfair labour practice. The matter was brought before another Labour Officer, Mr. Muromba, who made another determination ordering the appellant to reduce working hours by 7 January 1994, to pay the respondents overtime that accumulated from 7 February up to 30 June 1997, to pay the respondents a 20% shift allowance in line with their respective salaries and grades with effect from 1 February 1997, and that all fire brigade officers and men on 24-hour shift be provided with breakfast, lunch and dinner.

The appellant was aggrieved and approached the Senior Labour Officer, who unfortunately passed on without issuing a determination; thus, the determination by I. Muromba remained extant. The respondents sought quantification of the claims the appellant had refused to comply with. The parties appeared before Donald Mapara for conciliation, and a certificate of no settlement was issued. The matter was referred to arbitration before Richard Masinire who ordered that the respondents should be paid 2.5% shift allowance subject to their salary grades, that all the respondents, except 13 and 14, be paid US$129 600 or Zig equivalent each, as meal allowances in terms of the extant Labour Officer’s determination and that respondents 13 and 14 be paid US$77 760 of Zig equivalent each as meal allowances.

Aggrieved by the decision of the Arbitrator, the appellant approached this Court on the following grounds:

There was a grossly unreasonable misdirection by the Tribunal in that he issued the award contrary to section 8(2) of the Labour (Arbitrators) Regulations S.I 173 of 2012 as amended by S.I 249 of 2018 in absence of consent by the parties to an extension of time within which to render the award.

The Tribunal committed a grossly unreasonable misdirection by holding that the Appellant could not invoke Article 16(2) of the Model Law as the basis for its plea when s 98(2) of the Labour Act [Chapter 28:01] provides for the application of the Model Law to a dispute referred to compulsory arbitration.

The Tribunal committed a grossly unreasonable misdirection when he dealt with the merits of the jurisdictional plea raised by the Appellant in terms of Article 16 of the Model Law after holding that the Model Law was inapplicable.

The tribunal committed a grossly unreasonable misdirection by failing to specifically make a determination on whether or not the Respondents’ claim was properly before the Labour Officer taking into account the order made by the High Court on 10 October 20023 in Case No HC 7135/00.

The Tribunal committed a grossly unreasonable misdirection by failing to specifically make a determination on the implication of the issuance of Certificate of No Settlement after the expiration of 30 days of a dispute having been referred for conciliation.

The Tribunal erred by quantifying the Respondents claim for the provision of breakfast, lunch and dinner in financial terms when the determination by Muromba I in this regard was for specific performance only with no provision for financial compensation. This misdirection is grossly unreasonable.

The Tribunal erred by disregarding monetary changes affected by SI 33 of 2019 now contained in the Finance Act in that he gave the determination by I. Muromba a commencement date for the provision of breakfast, lunch and dinner when the determination does not have such a date.

Preliminary Issue

At the commencement of the proceedings, Ms. Chinwavadzimba stated that she had a preliminary issue to raise. She stated that the relief sought by the appellant was not exact; thus, it was not proper for this Court to grant it. She cited the cases of Sambaza v Al Shams Global BVI Ltd SC 03-18 and FBC v Kwangwari & Anor SC 17-25. She motivated her point by saying that these cases stated that where relief is not exact, it cannot be granted. She stated that there was no substitution for what would then happen should the Court decide to grant the setting aside of the arbitral award. She submitted that if the relief sought is not exact, it is regarded as fatally defective and ought to be struck off. She made reference to grounds five and eight and stated that if the Court found that there was no determination, it would necessitate the remittal of the matter back to the tribunal for a determination. She stated that the relief sought did not address this particular aspect, hence it fell short of the requirements of relief that ought to be given on appeals.

In response, Mr. Kanokanga contended that the case deals with the setting aside of an arbitral award. He cited Zimbabwe Electricity Supply Authority v Maphosa 1999 V 2 ZLR 67, where it was stated that where a Court sets aside an arbitral award, it may not usurp the parties’ right by remitting the matter to the arbitrator for redetermination. It must leave it to the parties to proceed as they deem fit. He quoted Butler and Finsen Arbitration in South Africa; Law & Practice at p 271, which stated that the most important legal consequence of a valid final award is that it brings the dispute between the parties to an irrevocable end; the arbitrator’s decision is final and there is no appeal to the courts. For better or worse, the parties must live with the award, unless the arbitration agreement provides for a right of appeal to another arbitral tribunal. The issues determined by the arbitrator become res judicata, and neither party may reopen those issues in a fresh arbitration or court action.

He further referred to the case of Harrisson Holdings (Pvt) Ltd v Munakiri Tobacco & Anor HH 237-25, which held that once an award is set aside, that is the end of the matter unless the parties agree otherwise. He submitted that because of these authorities, the appellant does not seek a remittal of the matter for determination by a different tribunal. He made the averment that if the Court is not in support of his submissions, he would alternatively apply to amend the relief sought by adding paragraph (c) to the effect that the matter be remitted for determination before a different tribunal. In relation to grounds five and eight, Mr. Kanokanga submitted that they are also covered

by the submissions that where an award is set aside, you then do not seek that the mater be re- determined.

Ruling on the Preliminary Point

The Court indicated that its determination on the preliminary points would form part of the main

judgment. The following is the Court’s determination.

In Telecel Zimbabwe (Private) Limited v Potraz & Ors HH 446-15, the Court noted that a preliminary point should only be taken where, firstly, it has merit and secondly, it is likely to dispose of the matter. The same sentiments were expressed in Afrochine Smelting (Private) Limited v N.R. Barber (Private) Limited HH 121-20.

The above-cited cases serve as an indicator of the attitude of the courts in respect of points in limine in that they should be meritable AND be likely to dispose of the matter.

A reading of the point in limine raised by the respondents’ counsel was that the prayer in the Notice of Appeal did not provide for a substitutive order. Mr. Kanokanga argued that such an anomaly could be amended in order to cure it. The Appellant’s prayer in the Notice of Appeal was drafted as follows:

“(a) The appeal be and is hereby allowed with costs being borne by the 1st -23rd Respondents jointly and severally each paying the other to be absolved.

(b) The arbitral award by the Honourable Arbitrator Richard Masinire dated 18th August 2025 be and is hereby set aside.”

It has been emphasized in several judgments that the requirement is that the prayer must be exact in nature. In the case of Ndlovu & Anor v Ndlovu & Anor SC 133/02, MALABA JA (as he then was) held that:

“The exact nature of the relief was not stated. What was p[rayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”

What is evident from the above cited prayer by the Appellant is that Appellant failed to highlight what order it seeks to substitute in the event that the appeal is allowed. Mr. Kanokanga submitted that an amendment could therefore be made in the circumstances. It is the position of the law that a fundamentally defective application is considered a nullity and cannot be fixed through amendment because the flaw is so severe that it goes to the root of the case. A nullity is a process that is void from the start, meaning it lacks legal force or effect, and any subsequent action, including an amendment, is also without effect. In Jensen v Acavalos 1993 (1) ZLR 216 (S), KORSAH JA said at 220 B-D:

“The reason is that 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.”

The same sentiments were further expressed in ZACC v Mangwiro & Anor SC 11-22 p 10 per KUDYA AJA (as he then was). The Court held:

“The defective ground of appeal renders the application, before me, a nullity. It is trite that

a nullity cannot be condoned or amended.”

A defective prayer cannot be amended as it renders the whole application fatally defective. In my view, a finding on a dispositive issue should mark the end of the Court’s inquiry and any curiosity in the matter. The application ought, therefore, to be struck off the roll.

Accordingly, it is ordered that: