Dr Gadzamoyo Dewah v City Parking & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/147/2020
HARARE, 19 FEBRUARY 2020
CASE NO. LC/H/APP/676/19
AND 3 JULY 2020
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IN THE LABOUR COURT OF ZIMBABWE 	           JUDGMENT NO. LC/H/147/2020

HARARE, 19 FEBRUARY 2020 				CASE NO. LC/H/APP/676/19

AND 3 JULY 2020

In the matter between:

DR GADZAMOYO DEWAH						APPLICANT

versus

CITY PARKING								1ST RESPONDENT

MR SABILIKA N.O.							2ND RESPONDENT

Before The Honourable Makamure  J

For the Applicant			In person

For the 1st Respondent		Ms R. Mhlanga (Legal Practitioner)

For the 2nd Respondent		No appearance

MAKAMURE J:

This is an application for leave to appeal. A preliminary point regarding citation of the 1st respondent was raised before the application could be heard. The preliminary issue was that the 1st respondent was not party to proceedings which are now being appealed and therefore there was improper citation of parties. At the conclusion of the hearing of the preliminary issue, the court found merit in the issue raised. Consequently, the court struck the matter off the roll. This is further explained below.

The 1st respondent in the earlier proceedings was Easipark Harare. See Judgment No. LC/H/344/19. The 1st respondent, City Parking, as cited in the present application for leave to appeal to the Supreme Court was not party to the earlier proceedings. There was no application for joinder of City Parking to the initial proceedings. That party can therefore not be party to the present application. There is no link between the current 1st respondent and the judgment which is being appealed. It was not suggested that the 1st respondent as cited in the current proceedings was in existence when the matter was initially brought before the court. The applicant strenuously argued that the management and employees of Easipark Harare are the same as those of City Park. For that reason, the applicant submitted that the 1st respondent is properly cited and properly before the court. There was no suggestion that there was a transfer of undertaking from Easipark to City Park in terms of s 16 of The Labour Act [Chapter 28:01]. Such transfer would have been supportive of applicant’s submission. These are therefore two different entities. The applicant is alive to that.

The appropriate citation is crucial in legal proceedings.

In JDM AGRO – CONSULT & MARKETING (PVT) LTD v THE EDITOR OF THE HERALD NEWSPAPER and THE HERALD NEWSPAPER HH 61 – 2007 a plaintiff who had not existed as a natural or legal persona at the time that proceedings were instituted was found not to be properly before the court. I make the same findings and respectfully associate myself with the sentiments expressed in that judgment. See also Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Ltd 1996 (2) ZLR 655 (S); Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H).

It is in view of the foregoing that the following order was made.

1.	The application for leave to appeal to the Supreme Court be and is hereby struck off the roll.

2.	Costs be costs in the cause.

Kanokanga & Partners, 1st Respondent’s Legal Practitioners