Tafara Dominic Mlambo v Zimbabwe Newspapers 1980 Ltd t/a The Herald

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGEMENT NO. LC/H/3/25
HELD IN HARARE, 7TH NOVEMBER 2024
AND 3RD JANUARY 2025
CASE NO. LC/H/678/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGEMENT NO. LC/H/3/25 HELD IN HARARE, 7TH NOVEMBER 2024

AND 3RD JANUARY 2025	CASE NO. LC/H/678/24

TAFARA DOMINIC MLAMBO	APPELLANT

ZIMBABWE NEWSPAPERS 1980 LTD T/A THE HERALD	RESPONDENT

Before the Honourable G. Musariri, Judge

For Applicant:	T.D. Mlambo, Appellant

For Respondent:	B. Museba, Respondent

MUSARIRI, J:

At the onset of oral argument in this Court, the both parties raised points in limine. Appellant’s points mainly attack the validity of the Response filed on behalf of respondent whilst respondent’s points attack the validity of the appeal. The Court is sitting as a result of the appeal filed by appellant. If the appeal is invalid as argued by respondent then all the other points fall away. This is because the Court’s jurisdiction is triggered by the filing of a valid appeal. As a result the Court will consider respondent’s points first.

Respondent’s points in limine

That the grounds of appeal are vague and embarrassing:

The five (5) grounds of appeal read as follows’

“A)  The Arbitrator erred at law by upholding an unfair dismissal against provision of critical points of law cited as Statutory Instrument number 31 of 2003, SI 15 of 2006 and Labour Act Chapter 28:01 section 101 Subsection 1 article F.

The Arbitrator misdirected himself on the facts that amounted to an error in Law by disregarding Appellant’s submissions on the first of the 2 records of disciplinary hearing proceedings in the premises at the Herald.

Facts are that the respondent’s case is fatally defective at Law as internal remedies of appeal for both hearings were denied as no appeals record of proceedings were submitted by respondent before the Arbitrator.

Arbitrator turned a blind eye and a deaf ear to Appellant’s pleadings in submissions that offences in all circumstances apparently are not dismissible in the applicable Code’s schedule of offences.

Appellant’s documentary evidence that Zimpapers owes in terminal benefits comprising outstanding pension Salary arrears, outstanding General and Accommodation allowance which are contractual obligations of Zimpapers as a party to particulars of a contract of employment was disregarded by the Arbitrator.

Wherefore applicant prays for:

A court order compelling Zimpapers to pay Appellant’s terminal benefits amounting to USD 10476 rtgs 15 000 000, an Order of reinstatement for Appellant, His General and Accommodation allowance without loss of salaries and benefits since the 27th of October 2023 or Alternatively Zimpapers to pay benefit in lieu of reinstatement equivalent of salaries and benefits with increments till applicant’s retirement age.”

The 1st ground states that the Arbitrator (Abtr) erred by upholding appellant’s

dismissal against provisions of the Labour Act and named Statutory

Instruments. Though specific provisions of the instruments are not identified, a specific provision of the Act is referenced. The ground being partly concise is acceptable as it is. The 2nd ground is incomprehensible. Further it purports to challenge the conduct of the arbitration process which is matter for review rather than appeal. Likewise the 3rd ground raises issues to do with the arbitration process which is a matter for review. The 4th ground attacks the propriety of dismissal in light of the provisions of the applicable employment code. Though it could have been worded in clearer terms, its import is discernible. The 5th and last ground states that the Arbitrator erred in ignoring documentary evidence of pension salary arrears and allowances owed to appellant by respondent. That is clear enough, Therefore

respondent’s point is well-taken save for the 2nd and 3rd grounds which raise matters for review.

That the notice of appeal does not state whether the whole or part only of the judgment is being appealed:

The Labour Court Rules, 2017 provide for appeals in rule 19. None of the 4 sub-rules requires that the appeal should state whether they

are appealing against the whole or part of the impugned judgment. The point thus lacks merit.

That the notice of appeal does not seek to have the appeal allowed and the arbitral award set aside;

The point raises minor infractions which are immaterial in the resolution of labor disputes. The Court is fortified in this view by the dicta in Mapondera v Freda Rebecca SC 81/22 Para (24)

That the grounds do not raise points of law:

The 1st ground references a statutory provision and thus a point of law.

The 4th ground raises gross error in interpretation of the applicable c ode regarding penalties.

The 5th ground also raises gross error in the award of items due to appellant.

Appellant’s points in limine

1	That there is no proper response before the Court.

Appellant argued that the response filed does not comply with the Court’s Rules. Rule 19(2) requires respondent to file a response inform LC2. The Form itself requires respondent to attach an affidavit in support

of its case. Respondent filed a statement signed by its attorney. Such statement cannot be equated to the affidavit sworn and signed by respondent as required by the Rules. Respondent sought to rely on rule 47 which states

“(1) The forms prescribed in the schedule shall be used in all proceedings to which they are applicable with such modifications as the circumstances may require.”

With due respect, the rule does not avail. It refers to modification of the prescribed form. Omission of the required affidavit cannot be considered a modification. It is a wholesale departure from the rule. Accordingly the point in limine is well- taken. The failure to comply with mandatory requirements of the rules renders a pleading a nullity.

See Mazambani v International Export 2021 (1) ZLR 1418 (S) at 1423D. Conclusion

The net result of the foregoing analysis is that there is a valid appeal albeit minus 2 grounds of appeal. On the other hand there is no valid notice of response.

Wherefore it is ordered that

The Appellant’s point in limine be and is hereby upheld;

The Respondent’s Notice of Response is hereby struck off the record as

being a nullity; and

3	The Registrar of this Court is directed to re-set the matter for

continuation during the Court’s 1st term in 2025.

J-U-D-G-E