Dumisani Nyathi v Republic of South Africa (South Africa Embassy Harare)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/299/25
HARARE, 15 MAY, 2025
CASE NO, LC/H/134/19
DUMISANI NYATHI
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE	JUDGEMENT NO. LC/H/299/25 HARARE, 15 MAY, 2025		CASE NO, LC/H/134/19

DUMISANI NYATHI	APPELLANT

REPUBLIC OF SOUTH AFRICA (SOUTH AFRICA EMBASSY HARARE)

Before the Honourable G. Musariri, Judge:

RESPONDENT

For Appellant For Respondent

T. Marimo, Attorney

M.Mbuyisa. Attorney

T. Vudzijena, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal was made in terms of Section 92D of the Labour Act Chapter 28:01.

At the onset of oral argument appellant raised a point in limine. The point is captured in appellant’s supplementary heads of argument thus,

“8.  It is not possible for the court to come to a just conclusion without the minutes of the hearing which contain Appellant’s arguments on the merits.

The Respondent seem unwilling to quash the proceedings on its own.

It is manifest from the facts and admissions by the Respondent that the record of proceedings is unavailable. The court is urged to exercise its inherent power of appeal to remit the matter for a hearing de novo.”

Respondent’s supplementary heads of argument countered that

“3.  While it is admitted that the court needs a record of proceedings of the disciplinary authority, it is submitted that the record is not needed in respect of admitted facts. Section 36 of Civil Evidence Act is clear on that. The importance of the admission is that it is thus seen as limiting or curtailing the procedures before the Court in that where it is not withdrawn, it is binding on the Court and in its face, the Court cannot allow any party to lead or call for evidence to prove the facts that have been admitted.

4.	It is also elementary that obiter remarks do not bind the court.

6.  The court is at liberty to make its further enquiries about what transpired in the disciplinary proceedings. This is achievable if regard is had to Section 90A of the Labour Act (Chapter 28:01) which unshackles the court from the vice grip of rigid rules, formality and technicalities.”

Anlaysis

The point in limine was apparently prompted by the judgment LC/H/184/23 written by my learned sister Justice Chivizhe. The case involved the same parties herein. Chivizhe J opined that

“In this case Respondent contends that it can no longer locate the record of proceedings for reasons as indicated above. Given the circumstances it would only be fair and just for Respondent to quash the disciplinary proceedings and conduct fresh proceedings if so desired.”

However the Judge went on to strike off the application to compel respondent to furnish the minutes of the disciplinary hearing. Clearly the Judge’s comments amount to obiter dictum as they do not underpin the order she gave. They are not the ratio decidendi and thus are not binding.

Rule 19 of the Labour Court Rules 2017 provides that

“(2)	The respondent shall, within ten days of receiving a notice of appeal-

(f)  make copies of any documents which are  in his or her possession and have not been availed by the appellant and at the time of filing the response file them with the Registrar and thereafter serve the appellant.”

It is clear that the respondent in casu was only obliged to file documents in its possession. Apparently the documents are no longer in its possession. Non-possession of the documents per se does not entitle appellant to quashing of the proceedings and remittal for a re-hearing. The appeal can still proceed on the basis of such documents as the parties have availed.

The AirZim v Chiku Mensa (*) case cited by appellant is distinguishable. The dicta relied on dealt with the power of remittal. It did not deal with the absence of material documents.

In light of the above analysis, it is concluded that the point in limine was poorly-taken.

Wherefore it is ordered that;

Appellant’s point in limine be and is hereby dismissed;

*Air Zimbabwe v Chiku Mensa SC 89/04

The Registrar of this Court shall reset the matter for continuation at the earliest available date; and

Costs shall be costs in the cause.

G. MUSARIRI

J-U-D-G-E