Stewart Mandongwe v Albritim Construction (Private) Limited & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/398/2025
CASE NO. LC/H/707/25
HARARE, 9 OCTOBER 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/398/2025

CASE NO .	LC/H/707/25

HARARE, 9 OCTOBER 2025

and 21 OCTOBER 2025

STEWART MANDONGWE	APPLICANT

ALBRITIM CONSTRUCTION (PRIVATE) LIMITED	1st RESPONDENT ENITA HOTYO N.O.	2nd RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	- S. Chihombe, Attorney

For Respondent	-T. Takawira, Manager

MUSARIRI, J:

Applicant applied to this Court for the review of his dismissal from employment by Respondent. The application was made in terms of section 89 of the Labour Act Chapter 28:01 as read with rue 20 of the Labour Court Rules 2017.

Respondents opposed the application

APPLICANT’S CASE

The material parts of the founding affidavit narrated that

“8. On 27 June 2025, I was served with a suspension letter by the 1st Respondent.

At the time of my suspension, it was alleged that I was doing moonlighting by rendering services to another unnamed company.

During my suspension, my counsel wrote a letter to the 1st Respondent demanding my salary arrears.

Since then, I never heard anything from the 1st Respondent except that on the 16th of July 2025, 1st Respondent caused my arrest by members of ZRP from Highlands police station on allegation of theft of its tools.

I was taken to the police station and lodged in police cells on that day and the whole of 17 July 2025. I was only released at Rotten Row Magistrates Court on the 18th of July 2025 when the prosecution declined to prosecute the matter based on the insufficiency of the evidence.

13. I also learnt that the police officers were in possession of a letter from the 1st Respondent showing that I was supposed to attend a hearing on 16 June 2025.

Looking at these documents, I was surprised

Firstly, I was surprised why I was being given the notice of hearing on 17 July 2025 for a hearing that had already been conducted on 16 June 2025.

Secondly, I observed that the notification summoning me to the hearing was directed to Mbudzi Interchange construction site

I was surprised why the notification would be addressed to that address when the Respondent is aware of my home address as evidenced by the suspension letter.

Third, I am surprised and not even sure of the exact date the hearing was conducted. Was it 16 June 2025 as per the notice of hearing which I belatedly received at the police? Was it 17 July 2025 as per the letter informing me of my dismissal?

Grounds for review are these;

The Disciplinary Authority erred at law and procedurally in that it convened and conducted a hearing on the 17th of July 2025 in my absence. The hearing was conducted arbitrarily and without affording me a fair opportunity and right to defend myself.

My right to a fair hearing was trampled upon in that I was tried, convicted and dismissed without having knowledge of the proceedings. The principle of audi alteram partem rule was breached to my prejudice.”

Applicant then prayed for his reinstatement or damages in lieu of reinstatement or damages.

Respondent’s case

1st Respondent’s opposing affidavit countered in the main that,

“35. The 1st Respondent vehemently disputes the grounds of review as they have no merit for the following reasons;

The 1st Respondent (sic) was duly served the Notice to Attend Disciplinary Hearing on the 11th of July 2025 as shown by Annexture R11. He had full knowledge of the date and time of the proceedings.

The Disciplinary hearing was conducted on the 16th July 2025 and deliberations of the outcome of the Disciplinary Hearing were held on the 17th of July 2025. On 16th of July 2025, the Applicant chose not to attend these hearings.

The Disciplinary Authority extensively dealt with the Applicant’s failure to attend his Disciplinary Hearing as shown in the Minutes for Disciplinary Hearing annexed as Annexture R2.

It is the Applicant who has been attempting to frustrate the 1st Respondent’s efforts to conduct a fair hearing. This is evidenced by the following:

Applicant’s refusal to reveal his real place of residence (which was later revealed by the Police upon investigations).

Applicant’s refusal to undertake a handover takeover process of 1st Respondent’s property.

His refusal to acknowledge receipt of his letter of Suspension and Notification of Disciplinary Hearing.

His false claim that he was incarcerated at the time of the hearing despite being arrested well after the Hearing had been concluded and before the 1st Respondent had even reported the case to the Police.

Creating a false document showing that the hearing was held on the 16th of June 2025 despite it being allegedly authored on the 11th of July 2025.”

Respondents prayed that the application be dismissed.

ANALYSIS

The application and response thereto raise the sole issue: Whether the respondent denied applicant the right to be heard.

It is axiomatic that he who alleges must prove. Therefore applicant bore the burden to prove his claim

Applicant stated that he was not notified of the hearing set for the 16th July 2025. On the other hand respondents averred that they served applicant with the notification of hearing They further filed an affidavit by Stephen Mawushe which deposed that,

“I am employed by Albritim as a Driver, On the 11th of July 2025 I served Stewart Mandongwe at 1600 hours at Tamrol Construction (Private) Limited whose address is Fossil Construction A Notice to Attend Disciplinary Hearing.”

In addition respondent filed the notice dated 11 July 2025 notifying applicant of the hearing set for 16th July 2025. The Court is thus faced with the classic he-said and she-said standoff. Either

the Court believes applicant who says he was not notified or the 1st respondent who says he (applicant) was notified. Given the state of the evidence applicant was required to specifically deal with Mawushe’s affidavit. Yet applicant did seek leave to file an answering affidavit. Neither did he deal directly with Mawushe’s affidavit in his heads of argument. Mawushe was 1st respondent’s driver who would be expected to deliver documents such as the notice in question. His integrity was not impugned in any way. The Court therefore finds on a balance of probabilities that applicant was served with the notice of hearing. This co-finding aligns with the standard of proof in civil matters as set out in the case of,

Zesa v Dera  1998(1)ZLR 500 (s)

McNally JA quoted at P 503

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.”

CONCLUSION

The above finding by this Court effectively collapses applicant’s case that respondents violated the audi alteram partem rule. Therefore his application ought to be dismissed as devoid of merit.

Wherefore it is ordered that;

The application for review be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E