Triangle Ltd v Nicholas Ngorima

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/611/14
HELD AT HARARE 25TH JULY 2014
CASE NO LC/H/611/14
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/611/14

HELD AT HARARE 25TH JULY 2014			CASE NO LC/H/141/13

& 26TH SEPTEMBER 2014

In the matter between:-

TRIANGLE LTD						Applicant

And

NICHOLAS NGORIMA					Respondent

Before The Honourable E Makamure, Judge

For Applicant			Mr E.T. Moyo

with him M Mazambani (Industrial Relations Manager)

For Respondent		Ms S Nyagura (Legal Practitioner)

MAKAMURE, J:

This is an application for leave to appeal a judgment of this Court, judgment number LC/H/746/13, to the Supreme Court.  The Court in that judgment remitted the matter back to the applicant and ordered the applicant in the present application to record mitigation before approaching this Court.  The order was made because the appeal was not properly before the Court.    An adjudicating authority is enjoined by section 12 A (4) of the Labour Act [Chapter 28:01] to consider mitigation before pronouncing a penalty especially where dismissal is a possibility. In that regard therefore it would have been inappropriate for the court to consider the grounds for review where the matter was not properly before the Court. Hence the matter was remitted back to employer so it could comply and then that would leave the employee to come back to this court after a penalty which was passed with mitigation having been properly considered. Instead of complying with the order of the Court and then have the matter placed before the Court for a proper review application, the applicant chose to appeal that decision to the Supreme Court.  That is in appropriate.  The review was not heard because the matter was not properly before the Court.  There is therefore no reason to appeal.  The judgment of this Court is clear.  I am in respectful agreement with the respondent’s submission this Court dealt with procedural irregularities and not the merits.  (See Pichanik N.O. v Paterson 1993 (2) ZLR 163 (H)).  Such irregularities must be corrected.  A multiplicity of applications only serve to delay the finality of proceedings.  This is undesirable.

On appeal there has to be reasonable prospects of success.  My view is that there are no reasonable prospects of success.  That being the case I am of the considered view that faced with the same facts, a different Court will not make a different decision.

In view of the above I find that there is no merit in the application.  In the result the application fails.  The applicant ought to record mitigation and pass the appropriate sentence so that the matter can be properly before this court for review.  This is the principle which was enunciated in Dalny Mine V Banda 1999 (1) ZLR 220.

Accordingly it is ordered that the application for leave to appeal to the Supreme Court be and is hereby dismissed with costs.

Scalen & Holderness, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners