Misheck Mubvumbi & 3 Ors v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/380/2014
HARARE, 12 JUNE 2014
CASE NO. LC/H/380/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/380/2014

HARARE, 12 JUNE 2014		                           CASE NO. LC/REV/H/26/14

AND 04 JULY 2014

In the matter between:-

MISHECK MUBVUMBI & 3 ORS			Applicants

And

CITY OF HARARE						Respondent

Before Honourable B.S. Chidziva, Judge

For Applicants		Mr S. Banda (Legal Practitioner)

For Respondent		Mr. J. P. Mutizwa

Ms R. Nemaramba (Legal Practitioner)

CHIDZIVA J:

This is an application for review of the events that eventually led to the applicants’ retirement/dismissal from employment.  It is alleged that the Town Clerk acted ultra vires his mandate in that he made the decision mero motu in the absence of a Council Resolution to retire the first and 2nd Applicants.   It has also been submitted to the court that the 3rd and 4th Applicants’ offices have been abolished by the Respondent and thus abolition amounts to a defacto retrenchment exercise.  The Applicants have told the court that this is a unilateral variation of the employment contract.

The Respondent in response told the court that;

The respondent retired first and second applicants in accordance with Council resolution.

It is the employer’s prerogative to retrench its organization hence the abolition of 3rd  and 4th respondent’s offices.

The 10th and 3rd Applicants are just abusing court process because the Respondent has not yet finalized the decision against them.

At the beginning of the hearing the Respondent raised two points in limine that is that

Whether the 2nd applicant was tendering costs, since he had withdrawn his application.

The Respondent indicated that they wanted costs from him.  The Applicant through his lawyer Mr. Banda indicated that there was no need to tender costs at this stage although they were prepared to tender costs.

It is this court’s decision that costs will be in the cause.

The second point in limine is that this matter is not properly before this court because the procedure they have adopted is not provided for in the Labour Court Rules (SI 59/2006).  The Respondent pointed out that the rules do not have a procedure for Urgent Chamber Application in the form that the applicant has used.  Furthermore the application did not follow Rule 16 or was not filed with Form LC 4.  The Application is also defective in that the Certificate of Ugency was signed by Vincent Mazhetese a legal practitioner in the firm that is representing the applicant.  The Respondent went on to submit that the applicants are using Rule 247 of the High Court Rules which requires that an Urgent Chamber Application should be accompanied by a provisional order and this was not done.

To start with Rule 21 (1) states that

“1. Save where a President or Court has directed otherwise, the Registrar shall as far as reasonable possible set down matters on a first come first served basis.

“Provided that in urgent cases shown the Registrar may, at the request of one or more of the parties and in consultation with the Senior President allocate a fixed date for the hearing of a case whether in or out of term.”

There is no proof that the Applicants made a request to the Registrar that the matter be set down on an urgent basis.  No proof has been furnished to show that the Senior Judge was consulted before the matter was set down for hearing.

Rule 16 of the Labour Court Rules SI 59/2000 also provides that such an application should be accompanied by Form LC 4.  This rule was not complied with either.

Take it that the Applicants decided to use the High Court rules it is provided that a certificate of Urgency should not be signed by a legal practitioner in the firm representing the applicant.

CHEDA J in the case of Chafanza vs Edgars Stores and Anor 2005 (1) ZLR 301 also had this to say,

“In my view it is improper for a legal practitioner to act (that is. To sign a Certificate of Urgency in the Chamber Application he is filing on behalf of his client) in that manner as he has an interest in the matter at hand.  The interest in the matter is grounded on two factors.

Firstly, in that he has a pecuniary interest in the earning of fees from the said client.

Secondly, that he is interested in pointing the goodwill of his company by bringing his client’ s affairs to a successful conclusion.  In other words, it means a financial and not a more social ethical interest or view.  This principle was clearly laid down in Smith vs Hacock 1984 (2) CH D 377, The same principle was also adopted in the case of Pretoria  Bill & Pasting Company vs Hiss 1911 TPD 360 1911 TPD 360 ----- to my need it is totally undesirable for a legal practitioner to either attest to an affidavit or sign an urgent certificate for and on behalf of client who is being  represented at his firm as such lawyer clearly has an interest in the matter at hand”

From what has been explained above the certificate of urgency is defective since it was signed by Vincent Mazhetese a legal practitioner in the firm representing the applicant.

In the light of the foregoing this court finds that this matter is not properly before the court.

Accordingly

The application is struck off the roll for lack of compliance with the Labour Court Rules.

J MAMBARA & PARTNERS, Applicant’s legal practitioners

CHIHAMBAKWE, MUTIZWA & PARTNERS, Respondents’ legal practitioners