Sydney Ndlovu v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/163/2021
HARARE, 16 JUNE 2021 &
8 OCTOBER 2021
CASE NO LC/H/72/19
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/163/2021

HARARE,  16 JUNE  2021 &			   CASE NO LC/H/72/19

8 OCTOBER  2021

In the matter between:-

SYDNEY NDLOVU					APPELLANT

And

ZIMBABWE REVENUE AUTHORITY		RESPONDENT

Before the Honourable Kudya J

For the Applicant			Chirenda (Unionist)

For the Respondent			Bhebhe  (Legal Practitioner)

KUDYA, J:

This judgement only deals with points in limine raised by the respondent employer. The 2 points are, that there is no clear relief sought by the appellant thus making the appeal fatally defective and susceptible to being struck off the roll.  The 2nd point is that appellant has raised in grounds 1 and 8 review issues in an appeal.  Ground 1 pertains to flouting of timelines by the respondent employer and ground 8 relates to issues around minutes of the disciplinary proceedings. In like manner it is respondent’s view that these 2 grounds have to be expurged from the record for being bad at law as they are review and not appeal issues.

The appellant contests both points and maintains that his appeal is good at law.  He argues that reference to a reversal of his dismissal should be read to be synonymous with asking that the appeal he has made be allowed and that the decisions of the appeals and other lower internal tribunals be set aside.  Her contends that grounds 1 and 8 are points of law so to that extent qualify as appeal grounds. In the result he prays that the points in limine be dismissed and that the matter proceeds to the merits.

It is settled law that appeal grounds have to be clear and concise. See case of Dr Kunonga v C.P.C.A.  SC 25-117.  It is equally settled that the relief sought has to be clear for an appeal to be adjudged a proper appear.  See Mudyavanhu v Saruchera and others  SC-75-17. A reading of the paragraph setting out the relief sought by appellant falls foul of the case of John (supra).  It is indeed not clear what exactly the appellant is seeking and equally unclear as to what should happen to the lodged appeal as well as what should happen to the decisions of the lower tribunals.  The court is therefore persuaded that the point in limine raised is not merely technical but goes to the root of the appeal itself.  To that extent the point should succeed.  It is also important to remind the appellant of the remarks made by the Supreme Court in Ndebele  v Ncube 1993 (1) ZLR 288 L50 that time has come to stop parties from  flouting rules  willy nilly and just pleading mercy with the court.  Pleadings have to be crafted properly for the smooth flow of the  administration of justice.  Such has not happened in the case at hand and the point must of necessity succeed.

Whilst this could have been the end of the enquiry as the ruling on the 1st point is dispositive of the matter the  court has deemed it necessary to decide on the 2nd point just for completeness of record.  The rules are clear that the remedies of appeal and review are available for different scenarios. Review clearly is about the procedural  niceties of the matter which is clearly what grounds 1 and 8 speak to. There is no point of law to be determined on that as copied by the appellant. The point of law definition has been settled by a plethora of cases chief among them Sable Chemicals v Easterbrocke  SC-18-10.  This court is satisfied that the minutes and time issues have no legal debate which the  Supreme court has to conclude on what the law is or should be.  In the result the court is satisfied that ground 1 and 8 have been brought up irregularly in an appeal and should not see the joy of the appeal.  They should equally be struck off for being in the wrong place.  In the ultimate it is clear that both points in limine being merited they should succeed.

IT IS ORDERED THAT

The points in limine being merited be and are hereby upheld. The appeal is struck off the roll with costs.

Kantor and Immerman – Respondent’s Legal Practitioners