Peter Katamba v Sally Mugabe Central Hospital & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/86/2023
HARARE, 20 MARCH, 2023 27 MARCH
CASE NO LC/H/397/22
2023
PETER KATAMBA
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE
HARARE, 20 MARCH, 2023 27 MARCH
2023

JUDGMENT NO LC/H/86/2023
CASE NO LC/H/397/22

PETER KATAMBA
APPELLANT

SALLY MUGABE CENTRAL HOSPITAL
1ST RESPONDENT

MINISTRY OF HEALTH AND CHILD CARE
2ND RESPONDENT

Before the Honourable Musariri Judge:

For Appellant - Mr P. Katamba (Appellant)

For 1st Respondent – Ms N. Chiro (Officer)

For 2nd Respondent – Ms N. Chiro (Officer)

MUSARIRI, J:

At the onset of oral argument in this Court, the respondents raised a point in limine which appellant opposed.

The point was that the appeal to this Court was filed out of time and hence the matter ought to be struck off the roll. A brief background of the matter is apposite.

1. Appellant worked for Respondent as a security guard at S. Mugabe Hospital in Harare.
2. On the 27th September 2021 he was charged with misconduct.
3. A disciplinary hearing was held on the 1st October 2021.
4. By letter dated 4th October 2021 appellant was found guilty and dismissed from employment.
5. Appellant appealed to the Health Services Board (HSB).
6. By letter dated-stamped 7th December 2021 the A/Executive Director of the HSB notified that the appeal was dismissed.


7. On the 9th May 2022 Appellant appealed to this Court against the decision of the HSB.

8. Respondents filed a notice of opposition together with an opposing affidavit/

On the basis of the above facts Respondents argued through their opposing affidavit thus,

“3. I have read and understood the founding affidavit and wish to respond thereto as follows;

Points in limine

The appeal is out of time. The appellant was dismissed in December 2021 and appealed on 09 May 2022. The appellant delayed by almost five months. Under the premises, the appeal must be struck off the roll.”

Appellant did not respond to the point either by an answering affidavit or heads of arguments. He simply stated in oral argument that he received the decision of the HSB on the 9th May 2022 and proceeded to file the present appeal.

Rule 19(1) of the Labour Court Rules S.I. 150/17 requires appellant to file his appeal “within twenty-one days from the date when the appellant received the decision”. This must be read together with Rule 4(2) which provides that

“A person shall be deemed to have received –

(c) for the purpose of rule 19(1) –

(II) a determination made under an employment code in terms of section 101 of the Act, by the fourteenth days after the date indicated on that determination as the date of issue thereof;”

Since the determination in case was issued on the 7th December 2021, appellant is deemed to have received within fourteen (14) days thereof. Thus, the deadline for filing his appeal expired towards the end of December 2021. Appellant could not rebut the presumption against him just by his ipse dixit from the bar. He needed to show that despite the presumption in the Rules, he actually got the HSB’s decision on the date he claims to have received it. He tendered nothing in support of his claim. Therefore, the presumption prevails to the effect that he received the decision in December 2021. Accordingly, his “appeal” to this Court, having been filed out of time, amounts to a nullity.


Wherefore it is ordered that,

1. The respondents’ point in limine be and is hereby upheld; and

2. The appeal, having been filed out of time, is struck off the roll

G MUSARIRI
J-U-D-G-E
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