Cleopas Zwimba v Maranatha Ferrochrome (Private) Limited & S. Zimuto N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/284/25
HARARE, 5 JUNE, 2025 AND 6 AUGUST 2025
CASE NO. LC/H/365/25
CLEOPAS ZWIMBA
APPLICANT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 5 JUNE, 2025 AND 6 AUGUST 2025

CLEOPAS ZWIMBA

JUDGMENT NO. LC/H/284/25

CASE NO. LC/H/365/25

APPLICANT

MARANATHA FERROCHROME (PRIVATE) LIMITED

S. ZIMUTO N.O.

1ST RESPONDENT

2ND RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant

For 1st Respondent

For 2nd Respondent

- C. Zwimba, Applicant

- H. Muromba, Attorney

- No appearance

MUSARIRI, J:

At the onset of oral argument in this Court 1st Respondent raised 3 points in limine which

Applicant opposed. The points shall be addressed ad seriatim.

A. That applicant improperly seeks to appeal unterminated proceedings:

The 1st respondent’s opposing affidavit stated that;

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“6.3 1st Respondent submits that a litigant cannot seek leave to appeal against unterminated proceedings as this Honorable Court did not engage in the merits of the so called application. I am advised, which advise I accept is correct, that the Supreme Court does not engage in unterminated proceedings of inferior courts.

6.4 1st Respondent thus submits that the present application is improperly before this Court

and, if Applicant was aggrieved by the judgment of this Court, ought to have utilized the remedies available in the Rules in order to obtain a determination on the merits.”

Applicant’s heads of argument dated 21 May 2025 do not directly address the point. The impugned judgment concluded with the following order;

“Wherefore it is ordered that

1. The application for condonation be and is hereby struck off the roll as a nullity; and 2. Each party shall bear its own costs.”

Clearly this was a final order disposing of the application for condonation. That application cannot be revisited unless the Supreme Court upon appeal, reverses the order. Therefore the argument that proceedings have not terminated is untenable.

B. That the order sought cannot be granted:

The opposing affidavit stated that;

“7.1 Applicant in the matter essentially seeks for this Honorable Court to rescind its

judgment in LCH 95/25 via an application for leave to appeal. This is expressly provided for in his draft order which appears on page 19 of the application.

7.2 In terms of the law, the application for leave to appeal is an application in which an Applicant is seeking to be granted audience with the Supreme Court on issues of law. In the instant matter, a reading of not only the draft order but the founding affidavit, demonstrates that Applicant is essentially seeking an order for rescission under the guise of an application for leave to appeal to the Supreme Court.”

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The impugned draft order reads as follows;

“It is ordered that

1. The applicant be and is hereby granted leave to note an appeal to the Supreme Court. 2. The Order of the court a quo in case LCH 95/25 be and is hereby set aside.

3. That there be no order as to costs.”

The point actually relates to the 2nd paragraph of the draft order. The paragraph seeks a rescission of the impugned judgment by this Court. This Court can only rescind its own judgment upon a proper application for rescission of judgment in terms of Rule 40. However paragraph 1 and 3 of the draft are competent orders in an application for leave to appeal as in casu.

C. That the application is defective as the intended appeal is defective:

1st respondent complained that;

1. The draft notice of appeal does not conform to the prescribed Form. 2. The draft does not set out the exact nature of the relief sought.

3. The draft does not tender security for costs as required.

Theprescribed notice of appeal is Form 13 in the First Schedule to the Supreme Court Rules, 2025.

A comparison of the prescribed form and draft appeal in casu shows that the draft is substantially compliant with the said, despite that it does not use the exact wording in the Form. The same goes for the relief sought. It could have been better worded but it is clear enough. The 2nd paragraph of the draft does tender security for costs.

Conclusion

As the above analyses show above each of the points in limine was poorly taken. Perforce the

points ought to be dismissed as devoid of merit.

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Wherefore it is ordered that,

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

2. Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E

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