Gilbert Mushure v National Employment Council for Transport Operating Industry

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/216/25
HELD AT HARARE 5 JUNE 2025
CASE NO. LC/H/265/25
AND 12 JUNE 2025
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 5 JUNE 2025

AND 12 JUNE 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/216/25 CASE NO. LC/H/265/25

GILBERT MUSHURE	APPLICANT

AND

NATIONAL EMPLOYMENT COUNCIL FOR

TRANSPORT OPERATING INDUSTRY	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

Applicant	In person

No Appearance for Respondent

MURASI J.,

In case number LC/H/1249/24, Applicant made an application for condonation which was struck off the roll by the Court on 27 January 2025. The operating part of the Order rendered by the Court read:

“1. The application for condonation is hereby struck off the roll by reason of non- compliance with the Rules, that is, failure to attach the requisite draft application, judgments sought to be appealed against.”

Pursuant to this Order, Applicant filed another application which was titled thus:

“Take note that I make this application in terms of the Labour Act 17 Section 92 C (1) (a)

(b) (c) with the heading which says Rescission or Alteration by Labour Court of its Own Decisions)”

In a judgment dated 12 March 2025, this Court dismissed the application. The Applicant is dissatisfied with this outcome and intends to approach the Supreme Court for relief. This is

therefore an application for leave to appeal to the Supreme Court in terms of section 92 F (2) of the Act as read with Rule 43 of the Labour Court Rules, 2017.

I should state from the outset that the Respondent has stopped from participating in all the proceedings where it is cited by the Applicant even after having been served with the process. The reasons have not been made known to the Court.

It is pertinent that I reproduce Applicant’s prospective grounds of appeal as they appear in the application. These are they:

“Here are grounds of appeal and facts where the honourable Judge made gross errors leading to miscarriage of justice on the following points of law.

Ground One.

The Judge erred in dismissing my application for rescission contrary to the Act Section 92 C (1) (a)-(c) because he averred that I did not attach judgments without specifying which particular judgments were not attached especially since the cause of action did not need attaching of any judgments.

Ground Two

The Judge erred in dismissing my application for rescission of his order saying no draft application was attached to the application without specifying and being clear which application he was referring to, when already the Judge had to the application for condonation I had made. Failure to articulate and differentiate the application being referred to in (is) particularly confusing.

Ground Three

The Judge did not abide by Court Rule 35 (2) which informs that when the application for rescission is declined the order should give a specific directive instructing what needs to be rectified. No such directive was given. The directive must not be inferred. To say the application for condonation is struck-off for failure to attach the draft application and the judgments appealed against are just explicit statements and not directives.

Ground Four

The Judge erred in dismissing my application for rescission based on the wrong understanding that I did not attach the application for condonation for late filing of proof of service yet there is indisputable physical and direct evidence in form of the INDEX found on page 9 of Annexure B of case record LCH/1249/24 which show that I did.

Ground Five

The Judge erred in dismissing my application for rescission based on the misunderstanding that I did not attach the judgment being appealed against when in fact by ‘judgment’ he meant the pro- forma letter which was actually attached on page 11 Annexure B of case record LCH/1249/24.

Ground Six

The Judge erred in failing to observe that the Affidavit of Proof of Service on page 12 of Annexure B of the Evidentiary Document attest to the fact that an application was indeed made and was filed. The heading of the affidavit is clear and it says: Application to Reverse the Abandonment of Case LCH/532/22.

Prayer: The Relief Sought: I Pray that:

The order dismissing my application for rescission of the judgment which struck-off my case should be ordered null and void.

The application for condonation of the late filing of proof of service should be granted and the main case LCH/532/22 be put back on the roll.

Submissions by Applicant

In motivating the application, Applicant stated that he had made an application for condonation and his application had been struck off the roll for failure to attach documents. He further stated that the Court had overlooked certain issues. He submitted that he intended to appeal against the judgment that dismissed his application for rescission. He added that the Court had indicated that he had failed to attach documents yet Rule 35 (2) provided that the Court should issue directives as to what is supposed to be done and the Court had not done so. He argued that a directive in those circumstances cannot be inferred. Applicant further submitted that the Court, in the last judgment, had accepted the errors but had not given the judgment in his favour.

Applicant further submitted that a Registrar does not write judgments and therefore it was not correct for the Court state that a judgment was supposed to be attached. Applicant averred that the Registrar had issued a pro-forma letter which is what the Applicant had attached to the application. He made the concession that he had attached the Index to the application showing what documents had been attached in the previous proceedings and argued that this should have sufficed to show that he had filed these documents. Applicant submitted that Rule 12 called for informality of proceedings and the Court may depart from the Rules as regards admissibility of evidence and that the Court should have accepted the Index as proof. He stated that;

“There is sufficient evidence that application was made despite that the actual document was not there.”

Applicant further argued that there was no judgment that needed to be attached to the application and that the cause of action was the letter from the Registrar. Applicant further argued that the Court had decided to ignore the rule of law as required in terms of Rule 35 (2). After being reminded of the nature of the application before the Court, the Applicant proceeded to read through the prospective grounds of appeal and stated that the issues had been addressed in his opening statement and further submissions,

ANALYSIS

It is the Court’s view that the grounds of appeal raise one single issue which is whether Applicant submitted the documents with the application to enable the Court arrive at a judicious decision.

I believe it is necessary to put the matter in its proper perspective. The applicant’s matter was before MUSARIRI J as shown in Case Number LC/H/ 532/22. That matter is an application for leave to appeal to the Supreme Court. This is the matter which was deemed abandoned by the Registrar for non-compliance with the Rules. Applicant had failed or neglected to file proof of service in the matter. That the Registrar issued a pro forma letter is without question even though Applicant challenges this fact and states that the letter was only served on the Respondent.

Applicant thereafter made an application for condonation for late filing of the Proof of Service under Case number LC/H/1249/24. This matter was struck off the roll as shown elsewhere in this judgment. That there is a judgment by MUSARIRI J which the Applicant intends to appeal against is without question. It is also on record that the Applicant wrote a letter dated 8 April 2025 addressed to both Justice Musariri and this Court where certain pleas were made to have the matter heard ‘de novo.’

It is trite that an appellate court will only interfere with the factual findings of a lower court or tribunal where there is evidence of a misdirection or irrationality. Several cases have dealt with this point. In ZINWA v Mwoyounotsva SC 28/15, it was stated thus:

“It is settled that an appellate court will not interfere with the factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it: or that the decision was clearly wrong.”

In short, a litigant who intends a decision to be set aside has to demonstrate that the reasoning of the court a quo was so flawed that a reasonable tribunal, dealing with the same facts, could not have arrived at that conclusion. This is what Applicant in casu was required to do.

The second issue is that it is a requirement in terms of section 92 F (2) of the Labour Act that the grounds of appeal must raise points of law or, if based of factual findings, that there was a gross misdirection.

I will begin with Applicant’s submissions. Elsewhere in this judgment I reproduced a quotation of what Applicant stated in oral submissions that he admits that he only attached an Index to the application. That position taken by Applicant is confirmed with the following written submissions:

“The index is admissible evidence albeit not showing the nitty-gritty details of the application which for this purpose is not necessary is what’s required is only to prove the application for condonation was made.”

Section 36 (1) of the Civil Evidence Act, (chapter i8:01) provides:

“An admission as to any fact in issue in civil proceedings, made by or on behalf of a party to those proceedings, shall be admissible as proof of that fact, whether the admission was made orally or in writing or otherwise.”

This legal position was confirmed in Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC 25/12 where it was stated as follows:

“a formal admission made in pleadings cannot be ignored by the court before whom it is made. Unless withdrawn, it prevents the leading of any further evidence to prove or disprove the admitted facts. It becomes conclusive of the issue of facts admitted. Thus, where liability in full, as in casu, is admitted, no evidence is permissible to prove of disprove the defendant’s admitted liability. 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 nits face, the court cannot allow any party to lead or call for evidence to prove the facts that have been admitted.”

Case number LCH 1249/24 was an application for condonation. It is trite that a court may on good cause shown condone any non-compliance with the rules. The circumstances or cause must be such that a valid and justifiable reason exists why compliance did not occur and why non- compliance should be condoned. Applicant had failed to file proof of service in a matter before Musariri J. The record of proceedings related to that matter before him. Any other Judge dealing with any ancillary matter would perforce need documents showing the nature of the case and why it was necessary to grant the plea requested. Documents were a necessity. Applicant concedes that he only attached an Index and argues that this should have sufficed. A court must be satisfied that a valid and justifiable reason existed to grant the order. If such evidence has been withheld, it becomes wellnigh impossible to determine the matter. The Supreme Court is unlikely to find in Applicant’s favour in the circumstances.

There is a point that Applicant refers to extensively in the present application. It relates to the provisions of Rule 35 (2) of the Labour Court Rules. It provides:

“Where a Court either postpones a matter sine die or removes it from the roll, the Court shall direct what a party must do and the time frames by which the directive must be complied.”

There were no proceedings where any matter was postponed or removed from the roll. The Rule therefore does not apply to the proceedings that were before the Court. It is pertinent to point out

that the order to remove a matter from the roll and striking a matter from the roll are clearly different procedures.

Elsewhere in this judgment I pointed out that the grounds of appeal must raise points of law as required in section 92 F (2) of the Act. A reading of all the six grounds of appeal does not show what points of law are being raised in the proposed appeal. The prospective grounds of appeal simply show a disgruntlement with the decision arrived at by the Court. However, this is not enough. Further, the inelegant manner in which the grounds of appeal have been formulated has to be improved. The Court takes cognizance of the fact that Applicant is a self-actor. However, a minimum standard has to be observed in the circumstances for the legal proceedings to maintain a modicum of decency.

It has been stated in many a precedent that there has to be finality in litigation. As I write this judgment on an application for leave to appeal to the Supreme Court, Justice Musariri is waiting in the shadows to deal with an application for leave to appeal from the same litigant on the same matter and between the same parties. In Ismail Moosa Lunat v Mohammed Patel SC 47/22, CHATUKUTA JA quoted LORD WILBERFORCE in The Ampthill Peerage [1977] AC 569 at page 13 of the cyclostyle judgment thus:

“Any determination of dispute of fact may, the law recognizes, be imperfect; the law aims at providing the best and safest conclusion compatible with human fallibility, and having reached that solution it closes the book. The law knows. And we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, bit, in the interest of peace, certainty and security it prevents further inquiry.”

All is all, I am of the considered view that the application for leave to appeal lacks merit.

In the result, the application for leave to appeal to the Supreme Court is hereby dismissed with no order as to costs.