Samuel Hova v PetroZim Line (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/244/25
HELD AT HARARE 02 JULY 2025
CASE NO. LC/H/468/25
AND 14 JULY 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/244/25 HELD AT HARARE 02 JULY 2025	CASE NO. LC/H/468/25

AND 14 JULY 2025

IN THE MATTER BETWEEN:

SAMUEL HOVA	APPLICANT

v

PETROZIM LINE (PVT) LTD	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For the Applicant	Mr. Mutasa

For the Respondent	Mr. T Mashingaidze

MURASI J,

This is an application for review in terms of section 92 EE of the Labour Act, (Chapter 28:01) as read with Rule 20 of the Labour Court Rules, 2017.

FACTUAL BACKGROUND

The applicant was employed by the respondent, PetroZim Line (Pvt) Ltd. The applicant was dismissed from employment and made an application for review under case number LCH/180/24, challenging his dismissal. The review was upheld, and the respondent was ordered to convene a fresh disciplinary hearing within 60 days. The respondent failed to conduct the hearing within the timeframe ordered by the Court, and the applicant approached the Court with another application for review. The review was again upheld, and the respondent was directed to convene another fresh hearing within 30 days. On 23 April 2025, which was the 30th and final day for the respondent to convene a hearing, Applicant was brought before the Disciplinary Committee. He alleged that the respondent failed to act diligently, resulting in belated notification to the representatives, thereby contravening mandatory procedural requirements. The hearing was postponed to 28 April 2025. The applicant submitted that he informed the committee that the Disciplinary Committee

was no longer clothed with jurisdiction to hear and determine the matter by reason of non- compliance with the 30-day period provided in the Court’s order. The applicant served the respondent with a letter on 29 April 2025 requesting to be reinstated as per the Court order. Instead, he received a letter dismissing him from employment. He alleged that this was done against the provisions of the Court order to reinstate him if the hearing was not conducted within 30 days. Applicant prays for the setting aside of respondent’s decision and that he be reinstated and that if reinstatement is no longer tenable, he be paid damages in lieu of such reinstatement.

GROUNDS FOR REVIEW

The decision to dismiss the applicant was irregular as the hearing was conducted outside the 30-day period mandated by the court thus triggering the alternative of reinstatement or payment of damages as per the court order.

The disciplinary proceedings are a nullity as they were founded on an invalid notice which deprived the committee members of the requisite seven-day for the receipt of the documents upon which the proceedings were based.

PROCEEDINGS BEFORE THIS COURT

At the hearing, Mr. Mashingaidze sought postponement of the hearing on behalf of Mr. Phiri, the respondent’s legal practitioner. He submitted that Mr. Phiri had gone to attend to a matter in the High Court, which had been set on the same date as this matter. Mr. Mutasa opposed the application, claiming that, before this Court is a simple matter that has been prolonged. He further submitted that the respondent had not informed him that he was unavailable to proceed with the matter.

It is settled law that postponement of a matter is not a right obtainable on demand but is at the court’s indulgence. As such, it involves an exercise of discretion, which discretion must be exercised judicially. This position was enunciated in Apex Holdings (Pvt) Ltd v Venetian Blinds Specialists Ltd SC 33-15, where it was held that:

“An application for the postponement of a matter which has been set down for hearing is in the nature of an indulgence sought, the grant of which is in the discretion of the judge or court before which it is made. The applicant must therefore show that there is good cause for

the postponement or that there is a likelihood of prejudice if the court refuses the indulgence being sought.”

This position was also laid out in D’ Anos v Heylon Court (Pty) Ltd 1950 (1) SA 324 C at 335- 336, where the court held that:

“The non-availability of counsel cannot be allowed to thwart the bringing before the court of the matter in issue. In all but the rarest of cases suitable counsel will be available. This is not the convenience of counsel; it is the reasonable convenience of the parties- and by that, I mean both parties- and the requirement of getting through the court’s work which must be the dominant considerations. The availability of counsel is a subsidiary consideration. A party’s predilection for a particular counsel to take his case can, in my view, seldom if indeed ever be regarded as a decisive objection to a date of set down which is in all other respects reasonable and acceptable to both parties.”

Accordingly, the application for postponement was dismissed.

Preliminary Point

As a result of the postponement being denied, Mr. Mashingaidze abandoned his application for postponement and proceeded to deal with the matter. He raised a point in limine claiming that the applicant waived his right to challenge the procedural propriety of the disciplinary hearing in respect of the notice to prepare for the hearing. His view was that, because the applicant swam along with the hearing, he waived his right to raise the issue. The Court stated that a preliminary point raised must be meritorious and should be able to dispose of the case or a significant part of it without needing to address the substantive merits. In this case, the point in limine is essentially a defence on the merits, hence, it should be raised at the appropriate stage of proceedings.

It was observed in Telecel Zimbabwe (PVT) Ltd v Potraz & Ors HH 446-15 that:

“Legal practitioners should be reminded that it is an exercise in futility to raise points in limine simply as a matter of fashion. A preliminary point should only be taken where firstly, it is meritable and secondly, it is likely to dispose of the matter.

This point in limime has no merit and is accordingly dismissed.

THE MERITS

Applicant’s Submissions

Mr. Mutasa pointed out that the same matter has appeared twice before two Honourable Judges. He stated that, in the first judgment handed down by Hon. Musariri J, the respondent was given sixty days to create a new hearing, but he waited until the last day, and the applicant appeared before Hon. Chivhizhe J challenging the hearing. In the second matter, respondent was given thirty days to set a fresh hearing, in which the respondent again waited until the last day to hear the matter. On 23 April 2025, when the matter was set down, the applicant raised a preliminary objection that the respondent had not given the Directory seven-day notice to prepare for the hearing. He stated that the committee agreed with the applicant that the hearing was now outside the timeframe set in the judgment, thus meaning the hearing was irregularly convened. The thirty- day period ended on 23 April 2025. He claimed that the respondent then called for another hearing on 28 April 2025, three days out of the timeframe. The respondent was advised to seek to extend the timeframe or to proceed in terms of the court order and reinstate the applicant, but it proceeded with the hearing and dismissed the applicant. Mr. Mutasa stated that in the judgment handed down by Hon. Chivizhe J, it was ruled that failure to comply with the seven-day notice was a nullity, and the Court clearly stated its displeasure that the respondent continues to waste the Court’s time by failing to comply with the court orders.

Mr. Mutasa submitted that the respondent deliberately misinformed the Court by stating that the applicant was dismissed on 23 April 2025, when it is common cause that on the 23rd, the committee purported to postpone the hearing to the 28th of April 2025 following the seven-day notice period objection. He pointed out that Hon. Chivizhe J ordered that in the event that the respondent fails to comply with paragraph 3 and 4, the applicant shall be reinstated without loss of salary and benefits from the date of initial suspension and should reinstatement be no longer tenable, he shall be paid damages in lieu of reinstatement the quantum of which shall be agreed between the parties. Therefore, when the meeting was convened outside the thirty-day period, it was clear that the respondent was supposed to obey the court order. He relied on Chiwenga v Chiwenga SC 2-14, where the court stated that the law is clear that an extant order of this court must be obeyed or given effect to unless it has been varied or set aside by this court and that parties could not consent to vary such an order. Mr. Mutasa submitted that the respondent did not appeal against the judgment given by Hon. Chivizhe J, hence it had an obligation to obey the Court order.

Mr. Mutasa further submitted that on 28 April 2025, the committee had no jurisdiction to hear the matter because it was outside the timeframe set by the court. He stated that any act done in breach of a court order is a nullity, thus, the disciplinary committee lacked competency and its proceedings were irregular. He further quoted Traditional Medical Practitioners Council v Guhwa SC 19-25, the court stated that anything done outside the set timeframe is a nullity. He submitted that there is no doubt that the disciplinary committee sat outside the thirty days provided in the Labour Court order, hence this application must be granted. He submitted that costs should be paid on a higher scale.

Respondent’s Submissions

Mr. Mashingaudze indicated that the respondent convened the hearing within the timeframe as set by the Court because it started on 23 April 2025. The Court reminded Mr. Mashingaidze of the Traditional Medical Practitioners Council v Guhwa SC 19-25 quoted by the applicant, in which the Court indicated that the hearing should be completed within the fourteenth-day period. Therefore, if the 23rd of April 2025 was the thirtieth day, it’s the day the hearing was supposed to end, not to start the hearing. Mr. Mashingaidze indicated that the respondent’s interpretation was that the hearing could start on the 23rd. The court indicated to him that it is a wrong interpretation of the word ‘within’. Mr. Mashingaidze contended against the allegation that the disciplinary proceedings were a nullity. He submitted that the applicant was given an additional two days to prepare and ensure substantial compliance with the Code of Conduct. He submitted that the applicant waived the right to challenge the procedural propriety of the disciplinary hearing because he accepted the two-day extension without further objection; thus, the review ought to be dismissed. He prayed for costs to be paid on an ordinary scale.

ANALYSIS

In terms of section 89 (dl) of the Labour Act [Chapter 28:01], the Labour Court shall exercise the same powers of review as would be exercisable by the High Court in respect of Labour matters. An application for review is concerned with the method or process which led to the decision. A review is therefore not concerned with correcting a decision on the merits but is aimed at the maintenance of legality. In Liberty Life Association of Africa v Kachelhoffer 2001 (3) SA 1094, it was stated as follows:

“Review and appeal are dissimilar proceedings. The former concerns the regularity of the proceedings whereas the latter concerns the correctness or otherwise of the decision that is being assailed on appeal. Because of that fundamental difference between review and appeal, they are inconsistent remedies in the sense that if both are available, an appeal can be considered only after the review proceedings have been finalized as a decision in respect of the appeal would preclude the granting of relief by way of review. Similarly, a successful review obviates the need to consider the merits of an appeal.”

The Applicant has approached this Court on review. This therefore, entails that this Court considers the method and process of adjudication in the tribunal a quo.

Whether or not a party to a legal dispute can disregard a court order

The first issue that arises is that it is common cause that respondent did not convene the Disciplinary Committee hearing to determine applicant’s misconduct WITHIN the thirty days given by the Court. Further, the applicant submitted that a Court Order was issued by Hon. Chivizhe J stating that in the event that the respondent fails to comply with paragraph 3 and 4, the applicant shall be reinstated without loss of salary and benefits from the date of initial suspension and should reinstatement be no longer tenable, he shall be paid damages in lieu of reinstatement the quantum of which shall be agreed between the parties. The respondent did not appeal against the order, and it remained extant. The respondent, however, proceeded to convene a hearing outside the timeframes set by the Court instead of abiding by the provisions of the Court Order. The duty to obey Court Orders has been set in various cases. In Mauritius & Anor v Versapak Holdings (Pvt) Ltd & Anor SC 2-22 para 20, the Court stated:

“It is trite that once a court has made an order it binds all and sundry concerned. Everyone bound by the court order has a duty to obey the order as it is until it has been lawfully altered or discharged by a court of competent jurisdiction or statute”.

Hadkinsov v Hadkinson [1952] AII ER 567 (CA) is a landmark case emphasising the critical role of compliance with court orders in the legal system. It was emphasised that individuals cannot benefit from their wrongdoing and must comply with judicial decisions before seeking further legal remedies. It was stated thus:

“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of the obligation is shown by the fact that it even extends to where the person affected believed it to be irregular or even void”

In casu, the respondent failed to convene a disciplinary hearing within 30 days as ordered by the Court. The provisions of the court order were very clear. The conduct of the respondent was thus unlawful and nullity. The decision of Hon. Chivizhe J has not been appealed against and remains a judgment of this Court.

The effect of an act done outside the timeframes given in a court order

The Applicant submitted that the hearing was convened outside the timeframe set by the Court and was thus a nullity, which was the lapse of the given timeframe. One significant case in this regard is Traditional Medical Practitioners Council v Guhwa SC 19-25, wherein the respondent was suspended by the appellant for alleged misconduct, but the disciplinary hearing was delayed beyond the 14-day statutory requirement. The Supreme Court ruled in her favour, reinstating her, emphasising that the delay rendered the disciplinary proceedings invalid. The Court ruled:

“Upon the lapse of the 14 days, the disciplinary authority ceases to have jurisdiction to determine the matter”

In Sithole v Sithole & Ors HH 139-18 page 4, the court stated:

“A deliberate disregard of a court order constitutes contempt of court. It has the effect of violating the court’s dignity, repute and authority. It is the duty of the court to regulate its own orders. Courts cannot sit back and watch whilst its orders are being disobeyed. As a result, the courts regard anything that is done contrary to a court order to be of no force and effect and is regarded as not having been done at all”.

Further, in Schierhout v Minister of Justice 1926 AD 99, INNES CJ had this to say at 109:

“It is a fundamental principle to our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done- and that whether the law giver has expressly so decreed or not- the mere prohibition operates to nullify the act.”

The respondent in this case did not comply with the court order. The purported proceedings against the Applicant are clearly a nullity regard is had to the precedents cited above. The respondent failed to convene the hearing within the 30-day period as directed by the Court and disregarded the order to reinstate the applicant. The word ‘within’ is quite clear. If the 23rd of April marked the end of the prescribed 30-day period, all the proceedings should have ended on 23 April 2025. The

disciplinary committee no longer had the jurisdiction to hear the matter. The respondent’s argument is thus without merit.

I believe it necessary to determine the issue of costs. It is common cause that this is the third time that Respondent has been brought to Court on the same cause of action. In the first instance, Honourable Musariri J, ordered that Respondent conduct a new hearing within sixty days. This was not done. In the second matter, Honourable Chivizhe J, ordered that a hearing de novo be carried out within thirty days. Again, this was not complied with. It is clear that the present hearing is a result of Respondent’s refusal to comply with the previous court orders. Applicant’s representatives have requested costs on an attorney/client scale. In Selexes v State Procurement Board & Ors SC 45/16, it was held as follows:

“While parties and lawyers are entitled to have their day in court, they must exercise that right responsibly with due care and diligently not abuse court process. It is rather unethical and abuse of court process for litigants and particularly lawyers to waste the court’s valuable time presenting dead unarguable cases in the vain hope that flogging a dead horse will somehow resurrect it to life.”

In the present case, Respondent made a vain attempt to argue that the applicant had waived his right and agreed to the proceedings despite the fact that the respondent had not complied with the court order. It is trite that parties cannot agree to do that which is outside the provisions of the law. Respondent’s legal practitioners ought to be aware of this. However, they deemed it fit to advance such a spurious argument before the Court. I am of the considered view that this is one of those cases deserving of punitive costs. If Mr. Phiri had appeared before the Court, the court would have considered imposing costs de bonis propriis.

DISPOSITION

It is clear that the respondent failed to abide by the court order. The Court is supposed to ensure that its orders are obeyed. This is the third time the respondent is appearing before this Court on the same basis, and that amounts to gross disrespect and such actions cannot be condoned. The applicant’s case is with merit and the application for review ought to be granted.

In the result, the Court makes the following order:

The application for review is hereby granted with costs on an attorney client scale.

The disciplinary proceedings by respondents against Applicant are set aside.

The Respondent shall comply with the provisions set under Judgment LC/H/101/25 particularly paragraphs 5 & 6 which read as follows;

“5. In the event that Respondent fails to comply with paragraphs 3 and 4 above, the Applicant shall be reinstated without loss of salary and benefits from the date of initial suspension.

6. Should reinstatement be no longer tenable, he shall be paid damages in lieu of

shall be agreed between the parties.”

National Employment Council for the Zimbabwe Energy Industry-  Applicant’s Legal Practitioners

Muvingi and Mugadza-	Respondent’s Legal Practitioners