Walter Mutowo v Delta Beverages (Pvt) Ltd

### Preamble

IN THE LABOUR COURT OF

JUDGMENT NO LC/H/268/2023

ZIMBABWE HARARE, 17 JULY 2023

CASE NO LC/H/222/23

12

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IN THE LABOUR COURT OF ZIMBABWE HARARE, 17 JULY 2023 & 12

SEPTEMBER 2023

JUDGMENT NO LC/H/268/2023 CASE NO LC/H/222/23

In the matter between:-

WALTER MUTOWO APPLICANT

DELTA BEVERAGES (PVT) LTD RESPONDENT

Before the Honourable Kudya J

For the Applicant In Person

For the Respondent K. Ncube (Legal Practitioner)

KUDYA, J:

This is an application for leave to appeal against the decision of this court LC/H/214/2022 where it ruled that the points in limine raised by the employer were well founded.

The background to the matter is that the employee filed with the court an application for condonation of late filing of a review application in a labour dispute pitting the employee and the employer. On the date of the hearing of the condonation application the employer took 3 points in limine to the effect that the employee had attached an irregular draft notice of review since it was unsigned that the employee had prayed for irregular relief by not praying for an alternative of damages in place of reinstatement and finally that the employee’s matter had prescribed as it was brought outside the 2 years prescribed by law. See Section 94 of the Labour Act.

After hearing submissions from both parties the court concluded that the points in limine were merited and it accordingly ruled that these points succeed with costs. It is that ruling which the employee now seeks to take up with the Supreme Court hence this application

for leave to appeal. The employer is opposed to the grant of leave to appeal citing the fact that the employee has not made out a good case of the points of law which he intends the Supreme Court to decide on. It therefore prays that the application for leave be dismissed with costs.

At the hearing of this leave application the employee also raised at the outset that the application was unopposed based on the fact that the notice of opposition was unsigned. In that regard the employee prayed that the leave application be treated as unopposed and be granted in the default of the employer’s opposition. In response to this point the employer conceded that indeed the opposition was unsigned but hastened to mention that the court could condone the non signature since the affidavit was however commissioned.

It is interesting to note that it is this argument that gave rise to the success of the point in limine where the employee argued that the draft notice of review was unsigned. In the court’s view the employer can thus not reprobate and approbate at the same time. It is clear as it argued in its point in limine that the absence of the signature vitiated the validity of the draft notice of review. Equally the absence of signature on the opposing papers to the leave to appeal application also vitiated the opposition. The court is therefore satisfied that in the absence of proper opposition the application can be treated as unopposed.

This having been said it is pertinent to note that such is not the end of the matter. The issue is even without opposition has the employee made out a good case for leave to appeal. The employee argues further that the court erroneously dealt with a review application as opposed to a condonation application. In this regard he cites paragraph one of the judgment which refers to the matter as a review application. The court indeed concedes that such reference was erroneous but the arguments raised were as regarded that condonation application. In fact the points in limine were raised to demonstrate that there was no need to grant condonation where the papers founding the review were defective and also on account of prescription. It is thus the court’s view that the erroneous reference to the review aside the matter did indeed deal with issues besetting the condonation application at the outset of the matter.

This leaves the court to deal with the tenets of leave to appeal See Ngazimbi v Murowa Diamonds SC-52-11.

As regards the draft notice of review the employees contends that a superior court can hold that since this was just a draft it was not mandatory that it be signed. The court disagrees with that view but accepts that the superior court may be persuaded to hold that such a defect was of a technical nature that it could not detract from a ventilation of matter on its actual

merits. For this reason the court concludes that the argument advanced by the employee may find favor with the Supreme Court so leave can be granted on that account.

The same applies to the argument about irregular relief. If the Supreme Court concludes that the order is that of the court so the court can go ahead and make an appropriate order not withstanding its faulty couching in the draft order.

The final issue is about prescription. The employee contends that such should have been pleaded first before it could be raised by the employer. The court is however of the view that this is a point of law which could be raised at any point of the proceedings. The definition of a point of law is settled See Sable Chemicals v Easterbrooke SC-18-10. It is clear from the facts of the case at hand that there is no point of law on the issue of prescription which the Supreme Court can be called upon to determine. The totality of the conclusion drawn on the issues raised by the points in limine which the court decided are such that if they are taken to be technical the court may be asked to entertain the merits of the condonation application the points in limine notwithstanding. For that reason it would be just and equitable that the employee be granted leave to appeal to the Supreme Court.

IT IS ORDERED THAT

Application for leave to appeal being merited it be and hereby succeeds. Each party to bear own costs.

Gill Godlonton & Gerrans - Respondent’s Legal Practitioners