Unknown V Unknown

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Case No. LC/H/1255/24
Judgment No. LC/H/341/25
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THE LABOUR COURT OF ZIMBABWE BULAWAYO, 4 MARCH 2025, 25 SEPTEMBER 2025

For the applicant; Mr.F Mahere

For the respondent; Prof. L.Maduku & Mr. Mudhara

JUDGEMENT

Case No. LC/H/1255/24

Judgment No. LC/H/341/25

HOVE J: This is an application for leave to file and serve further affidavit in a matter that is currently pending before the court involving the two parties in casu that is LCH/404/23 being an application for review.

The respondent filed an application for review under LCH/404/23 alleging that the applicant in casu was seeking to proceed with disciplinary proceedings against her out of time. She alleges further that the applicant was seeking to apply its code retrospectively against her and this would be unlawful and would also prejudice her.

This application for review is pending before the Labour Court. While it’s pending, the applicant in casu alleges that it has uncovered new evidence which would render it unnecessary for the court to continue to hear the application for review. It is alleged that they have evidence which will show that the respondent repudiated her contract with the applicant in that she accepted employment while she was on suspension at applicant’s. The applicant now seeks the court’s indulgence and it be allowed to file a further affidavit or new evidence before the court in the application for review.

The application is opposed.

The respondent raises a point of law, that there is nothing in the Rules that allow for this kind of application. The respondent argued that there is nothing in rule 26 (6) that allows for the filing of a supplementary notice of opposition nor does it provide for the loading of further evidence. The application it was argued, was improperly before the court.

I do not believe that there is any merit in this preliminary point. The rule provides as follows;

“After heads of argument have been lodged with the registrar, no further papers may be lodged without the leave of the court.”

What the rule is saying is that if a party wishes to file any further papers with the court after heads have been filed. This must be done or can only be done with the leave of court.

The discretion is given to the court to consider and allows or even deny the filing of further papers after heads have been filed. The rule does not say what papers it simply says no further papers can be filed. A party to the litigation may wish to file a supplementary affidavit answering affidavit, further evidence or new evidence as is the case in casu. The rules allow the filing of further papers. The only caution by the legislature is that such party must first seek leave of court. The court can now decide in the interest of Justice, what can or what cannot be allowed.

I am of the view that a closer look at the wording of rule 26 (6) will reveal that an application such as the one in casu can properly be brought under the rule. When a party believes that new evidence can assist the court in determining an issue before it, I do not believe they can be barred from approaching the court under this rule seeking leave of the court to bring that evidence. It would be up to the court, as it does justice between men and men to consider the merits of such application and, as has been quoted from the case of S V Kachipare 1998 (Z) ZLR 271 (S), find an interpretation which achieves, “Sense rather than nonsense, Justice rather than injustice.”

I am of the considered view that the application is properly before the court. The preliminary point should not have been taken. It lacks merit.

THE MERITS

The respondent in case number LCH 494/23 is seeking review of the applicant’s intention or decision to discipline her in a manner that she argues is contrary to established principles of law. The new evidence that is being sought to be led is to the effect that there no longer is an employer/ employee relationship. The employee repudiated her contract of employment. If it is found that the respondent repudiated her contract of employment, then there would not be any need to discuss whether or not the respondent should be disciplined at all. In my view, it is in the interest of justice to have these allegations placed before the court for it to consider whether or not there is any truth in the allegations and if there is, what would be the implications on case number LCH/404/23, should the court allow the case to proceed?

In Khupe and another V Parliament of Zimbabwe and another CCZ 20/19 of page 7 to 8, the court stated that;

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy.”

The role of the court is to deal with real issues and not to deal with academic issues. It is therefore important and desirable for the court to allow itself to hear this new evidence to see whether or not that new evidence is valid. If it is valid, to consider whether continuing with the matter would not just be academic.

No prejudice will be suffered by the respondent who will have opportunity to challenge whatever evidence is alleged to have a bearing on the main matter and even to advance its own position as to whether or not the considering of the main matter will be rendered academic. Both parties will have the opportunity to be heard.

See the case of Zimbabwe Mining Development Corporation and another V Africa consolidated Resources PLC SC 1/10. It will be in the interest of fairness and justice for the evidence to be placed before the court and for the respondent to be given her right to be heard vis a vis the new evidence.

In accordance with the principles laid down in Revesai V Windmill (Pvt) Ltd

HH163/16, the applicant in casu, has explained why it is seeking to file an additional affidavit

and given an acceptable explanation as to why the evidence was not placed before the court earlier. The court has been placed in a position that enables it to consider the reasonableness or otherwise of the application. It is in the court’s discretion, as earlier stated, to allow new evidence or to disallow. The interests of justice will be served by allowing both parties to ventilate all the relevant issues that surround a particular dispute. Justice will be served by allowing both parties to ventilate all relevant issues that surround a particular dispute.

I am not persuaded by the respondent’s argument that;

“An application for review is determined on the basis of reviewable conduct or a reviewable decision and events taking place outside the reviewable conduct or decision are irrelevant”.

I say so because in certain circumstances evidence outside the reviewable conduct might have the effect of rendering the whole review process academic. These events may be outside the reviewable conduct but have an impact on the prosecution of the review application. An example would be where, an employee dies. This would certainly have an impact in the manner the proceeding may proceed.

The Constitutional cases of Mapungu V Minister of Justice, legal and Parliamentary Affairs CCZ 7/21 and Liziwe Museredza and 303 others V Minister of Agriculture, Lands, Water and Rural Resettlements and 10 others CCZ 1/22 are clearly distinguishable from the current case. In the first matter Patel JCC was underscoring the need to observe and comply with the rules of court and that failure to observe or comply with the rules would inevitably cause the application to be non- suited. In the second matter, Gowora JCC also states that the right of access to courts does not give a litigant the license to unilaterally decide on the procedure for accessing the courts. In the present application, the applicant has properly approached the court in terms of its rules, that is, rule 26 (6) of the Labour Court rules 2017. It is in this way that the two cases are distinguishable. The applicant has not unilaterally decided on the procedure to access the court. The applicant has also acted in compliance with the Rules.

In the result, I find that there is merit in the application and make the following order:

ORDER

The application be and is hereby granted.

The applicant be and is hereby given leave to file and serve its further affidavit in LCH/404/23 within five (5) days of this order.

The respondent, if so minded, may within five (5) days of service of the applicant’s further affidavit, file and serve a responding affidavit to the applicant’s further affidavit in LCH/404/23; and

Each party bears its own costs.

Gill, Godlonton and Gerrans legal practitioners - Applicant Mundia and Mudhara legal practitioners - Respondent