Violet Masunda v Senzeni Tokoyo & Another

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/195/25
ZIMBABWE
CASE NO. LC/H/272/25
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 20 MAY 2025

AND 27 MAY 2025

JUDGMENT NO. LC/H/195/25

CASE NO. LC/H/272/25

IN THE MATTER BETWEEN:-

VIOLET MASUNDA	APPLICANT

AND

SENZENI TOKOYO

DADIRAI KAMUDYARIRWA

FIRST RESPONDENT

SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For theApplicant

For the First and Second Respondent

Mr. Kabuya

Mr. Marufu

MURASI J.,

This is an opposed application for leave to appeal to the Supreme Court against an order issued by this Court on the 11th of March, 2025 under case number LC/H/68-25 and order number LCHORD 226-25. The application is brought in terms of section 92 F of the Labour Act [Chapter 28:01], as read with Rule 43 of the Labour Court Rules, 2017.

FACTUAL BACKGROUND

The respondents were employed by the applicant as domestic workers. They had been employed for two and three years, respectively, until the 12th of January, 2024, when they removed their belongings from the workplace following theft accusations. An attempt was made to settle the dispute through conciliation and the matter was subsequently referred to arbitration. TheArbitrator ruled in favour of the respondents, ordering their reinstatement or, if reinstatement was no longer

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tenable, the payment of damages.Aggrieved by the decision of the arbitrator, the applicant, through her legal practitioners noted an appeal to the Labour Court under case number LC/H/68-25. The matter was struck off the roll in chambers after this Court cited defects in the relief sought in the notice of appeal, which the Court deemed rendered the notice of appeal fatally defective. The applicant now seeks leave to appeal this order in the Supreme Court. It should be recorded that the present application for leave to appeal is being made in the absence of the Court’s judgment, detailing the reasons for its decision to strike the matter off the roll. What the applicant only has in her possession is the Court order which reads as follows:

1. The appeal is hereby struck off the roll by reason of a defective Notice of Appeal, that is, a failure to provide a substitutive order in the prayer.

2. There is no order as to costs.

SUBMISSIONS BY THE PARTIES

At the commencement of the hearing, Mr. Kabuya, counsel for the applicant, submitted that the present application raises two main questions of law. The first, he submitted, is whether a fatally defective Notice of Appeal, specifically one that omits a substitutive order can be amended. The second, he argued, is whether an appeal can be disposed of without affording the parties a right to be heard. Counsel argued that the impugned order was granted in chambers without oral argument and that this constituted a denial of the right to a fair hearing. The Court drew counsel’s attention to section 89(2)(a)(i) of the Labour Act [Chapter 28:01], which provides that the Labour Court may determine appeals either by hearing the parties or on the record. Counsel was informed that, in light of this provision, the Labour Court is not obligated to conduct an oral hearing in every case. Mr. Kabuya, however, contended that section 89(2)(a)(i) should not be read in isolation. He submitted that it must be interpreted within the broader context of section 89(1), which provides that the Labour Court shall be guided by the Labour Act and other relevant legislation. He emphasized that such an interpretation ought to take into account section 69 of the Constitution of Zimbabwe, 2013 which guarantees the right to a fair hearing.

The Court also directed counsel’s attention to the case of John v Delta Beverages (Pvt) Ltd SC

40-17, wherein a similarly worded relief to the present application was held by Guvava JA to be defective. When asked whether the relief in that case was similar to that in the present matter, Mr. Kabuya conceded that it was. Upon further inquiry by the Court as to whether, therefore, the relief

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in the applicant’s Notice of Appeal was also defective, counsel again conceded that it was, but contended that the defect was not fatal. He argued that in terms of the Supreme Court decision in Ndebele v Bhunu SC 34-10, a Notice of Appeal even if defective can be amended. Pressed on why the applicant had not simply corrected the defect and filed a fresh, proper notice of appeal, counsel stated that he had relied on the Gula Ndebele case, believing the defect could be cured by amendment. He also referred the Court to Rule 34 of the Labour Court Rules, arguing that the power to determine matters on the record is confined only to unopposed matters and that in a contested matter such as this, the parties ought to have been heard.

In response, Mr. Marufu, appearing for the respondent, submitted that the applicant had made a clear admission regarding the defective nature of the relief in the Notice of Appeal and the effect of that concession did not warrant a further enquiry into the matter. He argued that, in light of that admission and the relevant case law, the Court did not err in striking the matter off the roll. He referred to the cases of Jensen v Acavalos 1993 (1) ZLR 216 (S) and Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd SC 43-13. It was counsel’s submission that where a notice of appeal is incurably defective, it amounts to a nullity at law, and no valid proceedings can follow from it. Mr. Marufu also argued that the applicant, upon realizing the defect, should have followed the procedure provided under Practice Direction 3 of 2013, which outlines the procedure for rectifying matters after they are struck off the roll. He argued that the applicant should have withdrawn the appeal, rectified the defects, and filed a proper notice of appeal rather than pursuing a meritless application for leave to appeal. He referred the Court to Rules 12 and 32 of the Labour Court Rules, which emphasize the informality and discretion available to the Labour Court in its conduct of proceedings. On this basis, counsel argued that where the Court is faced with a patent defect in a pleading, it is entitled to exercise its discretion to strike the matter off the roll. Accordingly, he submitted that no arguable point of law arises from the present matter and that the application should be dismissed with costs.

In reply, Mr. Kabuya challenged the respondent’s reliance on Rules 12 and 32, submitting that

such reliance was misplaced in the present circumstances. He further contended that Practice Direction 3 of 2013 is not applicable to proceedings before the Labour Court, as it applies specifically to Superior Courts. He emphasized that reliance should be placed on section 89 of the Labour Court Rules.

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THE LAWAND ANALYSIS

The law governing applications for leave to appeal to the Supreme Court is well-settled. In terms

of section 92F (1) of the Labour Act [Chapter 28:01], an appeal to the Supreme Court shall lie only on a question of law. The leading authority on what constitutes a question of law is the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S). Accordingly, an applicant seeking leave must do more than simply allege an error of law; they must demonstrate that the Court misdirected itself on a point of law. Consequently, the Court is enjoined to make a value judgment on whether the proposed grounds of appeal raise bona fide questions of law, and if so, whether those questions carry reasonable prospects of success on appeal. Against this background, I now turn to an analysis of the draft grounds of appeal.

The first issue for determination, as captured in Mr. Kabuya’s submissions and the papers filed of

record, concerns whether the notice of appeal was fatally defective, and if so, whethersuch a defect could be cured by amendment. As highlighted in the background facts set out elsewhere in this judgment, the applicant’s matter was struck off the roll due to a defect in the relief sought in the notice of appeal. In the case of Ndlovu & Anor v Ndlovu & Anor SC 133-02, MALABA JA, (as he was then), held that:

“The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.” (My emphasis)

Similarly, in Movement for Democratic Change-Alliance and Ors v Muchekahanzu and Ors SC 116-22, the Supreme Court reiterated the mandatory requirement of stating the exact relief sought in the following words:

“It is mandatory to spell out the exact or actual relief sought. In other words the exact relief sought means the operative part of the order that could have been granted in the Court a quo. Accordingly, I conclude that for that reason, the notice of appeal is defective and fatally so. It must be struck off the roll for failure to comply with the mandatory provisions of r 37 (1) (e) of the Supreme Court Rules, 2018.”

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The applicant’s counsel conceded, during submissions, that the notice of appeal was fatally defective and did not meet the requirements set out in the above cited cases. This admission was made after the Court drew counsel’s attention to a decision by Guvava JA in John v Delta Beverages (supra) concerning similar wording in a Notice of Appeal, which had been held to be fatally defective. In light of this concession, Mr. Marufu, for the respondents, rightly submitted that it could not be said that the Court erred in striking the matter off the roll. I find it pertinent to quote the provisions of Section 36 of the Civil Evidence Act [Chapter 8:01], which outlines the effect of admissions as follows:

“(1)An admission as to any fact in issue in civil proceedings, made by or on behalf of a party to those proceedings, shall be admissible in evidence as proof of that fact, whether the admission was made orally or in writing or otherwise.

(2)Subject to subsection (3), in determining whether or not any fact in issue in civil proceedings has been proved, the court shall give such weight to any admission proved to have been made in respect of that fact as the court considers appropriate, bearing in mind the circumstances and manner in which the admission was made.

(3)It shall not be necessary for any party to civil proceedings to prove any fact admitted on the record of the proceedings.

(4)It shall not be competent for any party to civil proceedings to disprove any fact admitted by him on the record of the proceedings”

From the above, it is evident that the concession made by the applicant regarding the defective nature of the notice of Appeal warrants no further inquiry into the matter. Taken to its logical conclusion, it effectively means that the Court was not wrong in issuing the order it did. If the Court correctly found the notice defective, its only available course of action was to strike the matter off the roll. The position on the legal consequences of a defective notice of appeal is equally settled. In Jensen v Acavalos 1993 (1) ZLR 216 (S), wherein KORSAH JA said at 220 B-D:

“… a notice of appeal which does not complywith the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and unless the Court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs…” See also Freezewell Refrigeration Services (Pvt) Ltd v Bard Real Estate (Pvt) Ltd SC 61-03

In light of the above authority, which is still extant and binding on this Court, the applicant’s

contention that the defect could be cured by amendment falls away. Mr. Kabuya placed reliance on the Ndebele v Bhunu case (supra), which he argued supported a different legal position to that

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adopted by the Court. However, this argument is negated by the counsel’s own admission. By admitting the defect, the counsel effectively accepted that the notice of appeal failed to comply with the requirement to clearly state a substitutive order and it became incompetent to seek to disprove that fact, in terms of the Civil Evidence Act clause cited above. Accordingly, I find that this draft ground of appeal is devoid of merit. No point of law arises from it warranting a Supreme Court pronouncement on the matter, and therefore, there are no reasonable prospects of success on appeal in this regard.

The second argument raised by the applicant is that the Court violated the audi alteram partem rule by determining the matter in chambers without affording the parties their constitutional right to be heard. In support of this contention, Mr. Kabuya invoked Section 69 of the Constitution. However, Section 89(2)(a)(i) of the Labour Act clearly provides that the Labour Court may, in the case of an appeal, either conduct a hearing or determine the matter on the record. This statutory provision, thus, clearly and unambiguously empowers a Labour Court judge to determine appeals solely on the papers filed, without conducting an oral hearing. It is trite that where statutory language is clear, it must be given its plain and ordinary meaning. The Court acted within its discretion in deciding the matter on the papers, especially where it deemed the matter fatally defective and incapable of being salvaged. In this light, the applicant’s suggestion that an oral hearing was mandatory cannot be sustained. The constitutional right to be heard, as interpreted in our courts, is not limited to oral submissions. It is adequately fulfilled where a party is afforded the opportunity to present its case, whether orally or in writing. In the present matter, the parties filed written submissions, which were fully considered by the Court. In Zesa Enterprises (Pvt) Ltd v Stevawo SC 29-17, the Supreme Court held that:

“The right to be heard is a fundamental cornerstone of our law. It is a fundamental principle of the rules of natural justice forming the backbone of a fair hearing enshrined in our constitution as read with the Administrative Justice Act [Chapter 10:28]. The maxim that no one shall be condemned without being heard holds sway in our law. The right to be heard is however not an absolute immutable ruleof law. It can be waived or forfeited where the beneficiary is at fault.” (My emphasis.)

In light of the above, it is clear that the right to be heard must be interpreted contextually. The right to be heard is not immutable or absolute. There is, therefore, no merit in the argument that the applicant’s rights under section 69 of the Constitution were violated. Consequently, this ground, too, raises no question of law and has no prospects of success on appeal.

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I would want to address the issue of the Applicant intending to approach the Supreme Court without having been given reasons for the court’s decision. In such cases, the respondent will not know what it is the Applicant intends to approach the Supreme Court about. In Strategic Liquor Services v Mvumbi T. N.O. and Ors CCT 33/09, it was held as follows:

“In Mphahlele, this Court noted that there is no express constitutional provision requiring

the judges to furnish reasons for their decisions. We add that there is likewise no express statutory provisions requiring judges who have given judgment ex tempore to furnish written reasons when later required. Nonetheless, as this Court pointed out in Mphahlele, a reasoned judgment is indispensable to the appeal process. Judges ordinarily account for their decision by giving reasons- and the rule of law requires that they should not act arbitrarily and that they be accountable. Furnishing reasons-

‘explains to the parties, and to the public at large which has an interest in courts being open and transparent, why a case is decided as it is. It is a discipline which curbs arbitrary judicial decisions. Then, too, it is essential for the appeal process, enabling the losing party to take an informed decision as to whether or not to appeal or, where necessary, seek leave to appeal. It assists the appeal Court to decide whether or not the order of the lower court is correct. And finally, it provides guidance to the public in respect of similar matters.’”

The above quotation does not need further elucidation as to the requirements of written reasons. In casu, the Applicant was content with making an application for leave to appeal to the Supreme Court without seeking reasons for the Order sought to be appealed against.

DISPOSITION

In light of the foregoing, it is evident that the applicant has failed to meet the threshold required

for leave to appeal to the Supreme Court. The applicant’s counsel conceded that the submitted Notice of Appeal was defective. The Court correctly found that the defect was incurable and therefore struck the matter off the roll. Consequently, no arguable points of law arise from the first draft ground of appeal. As regards the second issue, Section 89(2)(a)(i) clearly empowers the Labour Court to determine matters on the record, rendering the applicant’s argument on the alleged

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denial of the right to be heard untenable. Counsel for the respondents prayed for costs. In my considered view, an award of costs is warranted in the circumstances. Upon receipt of the Court order, which clearly identified the defect in the notice of appeal, the prudent and procedurally correct course of action would have been for the applicant’s legal practitioner to rectify the defect and file a new, compliant notice of appeal. Instead, the applicant elected to pursue an application for leave to appeal to the Supreme Court, notwithstanding the fact that the matter had not been determined on the merits, and in the absence of a reasoned judgment from this Court. This course of action was ill-advised and frivolous, thereby justifying an award of costs against the applicant

In the result, the Court makes the following order.

1. The application for leave to appeal to the Supreme Court, being devoid of merit, be and is hereby dismissed

2. The applicant to meet to respondent’s costs on the ordinary scale.

Matsikidze Attorneys at Law-Applicant’s Legal Practitioners

Muhonde Attorneys- Respondents’legal practitioners.

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