Tawanda Gamira v Pat Dunn & Mark Futter (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 5 FEBRUARY 2025
JUDGMENT NO. LC/H/41/25
CASE NO. LC/H/1247/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 5 FEBRUARY 2025

AND 6 FEBRUARY 2025

IN THE MATTER BETWEEN:

JUDGMENT NO. LC/H/41/25 CASE NO. LC/H/1247/24

TAWANDA GAMIRA	APPLICANT

AND

PAT DUNN & MARK FUTTER (PVT) LTD	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Ms. N. Matongwana

For Respondent	Mr. B. S. Ziwa

MURASI J.,

This is an application for leave to appeal to the Supreme Court in terms of section 92 F (2) of the Labour Act as read with Rule 43 of the Labour Court Rules, 2017. Both parties raised preliminary issues at the commencement of the proceedings and the Court reserved judgment stating that it would furnish its reasons. The decision is as follows.

Mr. Ziwa was the first to raise preliminary issues. He proceeded to address the Court on these. However, Ms. Matongwana raised the point that she had wanted to address the Court first as her issues would not have allowed Mr. Ziwa to speak. She stated that she had allowed Mr. Ziwa to proceed as he was already on his feet. I will thus begin with the submissions made by Ms. Matongwana even though she addressed the Court after Mr. Ziwa had done so. This is because the issues she subsequently raised have an effect on whether Mr. Ziwa had the right of audience before the Court.

The first point raised by Ms. Matongwana was that Respondent’s Counsel had not filed an Assumption of Agency as required in terms of Rule 25 of the Labour Court Rules. She added that in the previous hearing, the Respondent was represented by Mr. Makings and therefore the legal practitioners were duty-bound to file an Assumption of Agency. The second issue was that the Respondent had used the wrong Form in filing its documents. She stated that Respondent was not supposed to file a Notice of Response but a Notice of Opposition as the former related to appeals

and the latter to applications. She therefore concluded by saying there was no proper opposition to the application.

In response to these issues, Mr. Ziwa conceded that they had not filed an Assumption of Agency in the matter as well as the fact that it was must have been an oversight to state that it was a Notice of Response instead of terming it a Notice of Opposition. He submitted that it was an oversight on the part of the legal practitioners not to file the Assumption of Agency. He asked the Court to have regard to Rules 32 and 12 of the Labour Court Rules. He submitted that the Court should not be concerned with form over substance. He also relied on the Mapondera case SC 81/22.

Clearly, Respondent’s legal practitioners did not file an Assumption of Agency as required in terms of Rule 25 of the Labour Court Rules. Mr. Ziwa asked the Court to condone such failure. As far as the filed documents are concerned, it is the Notice which is titled ‘Notice of Response’. The accompanying Affidavit is titled “Respondent’s Opposing Affidavit”. It does not refer to the document as a ‘Response’. In other words, it depicts what it should be. It has been submitted by Respondent’s Counsel that the Court should rely on rules 32 and 12 and condone the infractions by the Respondent. Rule 12 (2) enjoins the Court to ‘avoid formality in its proceedings and may, where circumstances warrant it, depart from any enactment or rule of law relating to the admissibility of evidence before the courts of law generally.’ Rule 32, on the other hand, allows a Court to depart from the rules as required in the interests of justice.

Many a precedent has dealt with the issue of condonation of the non-compliance with the Rules of Court. Procedural considerations should not, always, be allowed to vitiate proceedings unless it can be shown that the other party would suffer prejudice. In Passmore Malimanjah v Central African Building Society SC 319/05, The Labour Court was held to be a court of equity, concerned not with the formalities and technicalities of the legal profession but with achieving just and equitable resolution of disputes between the parties. In Legrand v Carmelu (Pvt) Ltd 1978 RLR 40, it was held as follows:

“The civil courts, in common with criminal courts exist to do justice and not to provide some practitioners with a forum in which relying upon technical and wholly academic points to attempt to prevent a court adjudicating upon the real issues.”

In this context, a civil trial should not be allowed by a Presiding Officer to degenerate into a contest on technical and wholly academic points which tend to obscure or frustrate the determination of the real issues. This was the position taken by the Supreme Court in Edmore Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited SC 81/22. In the present matter, it has not been Applicant’s position that there was any prejudice suffered by the non-compliance with the Rules by Respondent’s legal practitioners. The failure to file Assumption of Agency is a matter that has dogged the courts on many occasions. Many legal practitioners are guilty of this rudimentary requirement. Should a Court forego the hearing of a matter because of this non- compliance? I think not. However, I do not say it as an encouragement for non-compliance. Each case must be taken on its merits. I would also take the same view as regards the titling of the Notice as ‘Notice of Response’ instead of ‘Notice of Opposition’. I did not hear Ms. Matongwana to state

that any prejudice accrued to the Applicant as a result of this infraction. The failures by the Respondent are hereby condoned. Applicant’s preliminary points are accordingly dismissed.

I now turn to the preliminary issues taken by Mr. Ziwa. He submitted that a reading of the prospective grounds of appeal shows that grounds of appeal number 2 to 6 are a repetition of the grounds of appeal laid before the NEC Appeals Board and the Court a quo. He stated that grounds of appeal should be based on the findings of the court whose decision is sought to be appealed against. Mr. Ziwa further submitted that in the present case the findings of the Court were not referred to at all. It was argued that it was improper for the Applicant to request the Court to refer the matter to the Supreme Court in the circumstances. In this regard, Mr. Ziwa stated that the grounds of appeal were defective. It was also suggested that there was no point of law that was being raised in these grounds of appeal. Addressing the first prospective ground, Mr. Ziwa stated that the ground of appeal was vague because it remained obscure as in what manner the court a quo had misdirected itself. He further argued that grounds of appeal have to precise and concise. He prayed that the application be struck off the roll with costs.

In response, Ms. Matongwana submitted that the Applicant was aggrieved by the decision of the Court a quo and the grounds of appeal were filed because the Court a quo had not decided on the issues brought before it. As far as the first prospective ground of appeal was concerned, she submitted that the ground of appeal was not vague and was ‘straightforward.’ For the rest of the grounds, Ms. Matongwana argued that, though they were repetitive, they showed the nature of the Applicant’s aggrievement over the decision.

Asked by the Court whether the prospective grounds of appeal raised points of law as prescribed in section 92 F (2) of the Act, she responded that it was their belief that they raised points of law. She added that Applicant was not even aware when he was dismissed which showed that the Court a quo had not dealt with the issue.

I am of the view that the preliminary point which is dispositive of the matter is whether the prospective grounds of appeal raise points of law. In Muzuva v United Bottlers (Pvt) Ltd 1994

(1) ZLR 217, it was stated that the word question of law has three distinct meanings which are follows:

A question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question its thinks fit, in accordance with what is considered to be the truth and justice of the matter.

A question as to what is the law. An appeal on a question of law means one in which the question for argument and determination is what the true rule of law is on a certain matter.

A question which is within the province of the judge instead of the jury.

In Dr Nobert Kunonga v The Church of the Province of Central Africa SC 25/17, GARWE JA (as he then was) had cause to delve into the issue of grounds of appeal. He had this to say at page 15 of the cyclostyled judgment:

“Firstly, the notice must specify details of what is appealed against (i.e. the particular findings of fact and rulings of law that are to be criticized on appeal as being wrong) and secondly, the grounds of appeal ) i.e. it must indicate why each finding of fact or ruling of law that is to be criticized as wrong is said to be wrong) For example, because the finding of fact appealed against is inconsistent with some documentary evidence that shows to to the contrary; or because it is inconsistent with the oral evidence of one or more witnesses; or because it is against the probabilities.”

The above cited case relates to grounds of appeal generally. A reading of the Applicant’s prospective grounds of appeal show that they are a far cry from the required standards stated in the above judgment.

Do these grounds of appeal raise any point of law? Ms. Matongwana was unable to single out any point of law that was being raised in the prospective grounds of appeal. In fact, all the prospective grounds of appeal raise factual issues. In The Trustees of the Leonard Cheshire Home Zimbabwe Central Trust v Robert Chiite & Others SC 24/15, MALABA DCJ (as he then was) had this to say:

“Once a question requires a court to consider whether certain facts have been established in order to answer it, the court is to determine a question of fact.”

It would appear that the Applicant is requesting the Supreme Court to ‘re-consider’ the decision made by the Court a quo as the grounds of appeal are a general ‘disgruntlement’ with the decision of the Court a quo. Section 92 F (2) requires that such an appeal be on a question of law or where there is a gross misdirection on the facts which is so unreasonable that no sensible person who had applied his/her mind to the facts would have arrived at such a decision.

It is therefore my considered view that Respondent’s point in limine of the issue that the grounds of appeal do not raise points of law should be upheld.

The following Order is appropriate:

Applicant’s preliminary points are hereby dismissed.

Respondent’s preliminary point is hereby upheld.

The application for leave to appeal to the Supreme Court is hereby struck off the roll by reason of defective grounds of appeal.

Applicant to meet Respondent’s costs.

Applicant shall not institute any proceedings against the Respondent in this Court on the same cause of action without complying with paragraph 4 above or filing a waiver from Respondent for such noncompliance.

GEEMCEWU-	Applicant’s representatives

GILL GODLONTON & GERRANS	Respondent’s legal practitioners