Zacharia Gushe and Others v David Whitehead Textiles Zimbabwe (Private) Limited and Another

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H//25
HELD AT HARARE 8 MAY 2025
CASE NO. LC/H/142/25
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO. LC/H//25

HELD AT HARARE 8 MAY 2025					CASE NO. LC/H/142/25

IN THE MATTER BETWEEN:

ZACHARIA GUSHA AND OTHERS				APPLICANTS

AND

DAVID WHITEHEAD TEXTILES

ZIMBABWE (PRIVATE) LIMITED				FIRST RESPONDENT

MAFA BAMU N.O.							SECOND RESPONDENT

APPLICANTS PRESENT						ZACHARIA GUSHA

WILLARD MAGWIRO

ALEXANDER CHITOPE

PARTSON MBERENGWA

FOR FIRST RESPONDENT					MR. L. ZINYENGERE

NO APPEARANCE FOR SECOND RESPONDENT

MURASI J.,

This is an application for review of the decision of Second Respondent. The brief facts are that Applicants were employed by David Whitehead Textiles Limited. Between 2009 and 2015, decisions were made to retrench some of the employees. Issues arose as to what amounts were due to the employees. It is not necessary to recount what transpired later save to state that Applicants’ employer was at one time placed under Judicial Management. Applicants’ matter has been ‘going the rounds’ between themselves and the NEC. The last decision from the NEC is dated 24 January 2025. The Applicants had placed the following claims before the Designated Agent:

Unfair labour practice- section 6 (1) of the Labour Act.

Unfair labour practice- section 13 (2) of the Labour Act, unreasonably withholding wages and terminal benefits due to the employee without the Minister’s permission.

Non-compliance with a deed of settlement.

Non-payment of terminal benefits.

First Respondent raised certain preliminary points before the Designated Agent whose decision was as follows:

“Having carefully assessed submissions by both parties, the Ruling Authority has ruled that he has no jurisdiction to hear a matter that was dealt with before and in the event that Claimants has (have) reservations on that regard, it is also ruled that the matter cannot be determined by this tribunal as it has prescribed.”

It is the above decision that the Applicants have brought before this Court on review.

Preliminary Points

Mr. Zinyengere stated that he had preliminary issues to raise. The first was that the Fourth Applicant was now deceased and that in the absence of any Letters of Administration, there could be no representation of the Fourth Applicant.

In respect of the second issue, Mr. Zinyengere stated that the form that was used was not the complete Form LC 5. He submitted that Applicants had omitted to include vital contents of the form and that if the Court Rules were to be complied with, the application was therefore clearly defective. He added that a fatally defective Notice could not be cured.

The third preliminary point related to the citation of the First Respondent. He argued that First Respondent, having been incorporated in 2022, could not be cited as Applicants’ employer. He further submitted that Applicants’ employer existed. He stated that Applicants’ employer was David Whitehead Textiles Limited whilst the first Respondent was known as David Whitehead Textiles Zimbabwe (Private) Limited. He added that the Applicants knew of the fact that First Respondent had been incorporated after the Judicial Manager had relinquished his duties but insisted in citing the First Respondent with no legal basis.

As each Applicant was representing himself, the Court gave each of the Applicants to respond to the preliminary issues raised.

The First Applicant stated that the rules allowed the Form LC 5 to be modified so as to bring out the matter which a litigant wanted to present. In that respect, the Applicants had drafted their form to suit their own matter. He conceded that the application had omitted some parts of the Form. As far as the second point was concerned, he argued that the Applicants had cited the correct employer as the ‘investor’ who had come in was the one who later mutated into the First Respondent. He further argued that First Respondent had taken over from the employer as provided in section 16 of the Act.

Second Applicant had similar views as expressed by First Applicant. He referred to Clause 38 of an agreement entered during the period of judicial management prior to the birth of the First Respondent. Asked by the Court whether there was any evidence of a section 16 takeover, he replied in the negative.

The Fifth Applicant stated that he trusted his colleagues to draft the documents in question and he would abide by what they stated.

The Ninth Applicant also held similar views to those of the other Applicants. He added that they were laypersons who did not have any legal knowledge and the Court should accept the documents as they were. He also submitted that they had sued the correct employer as they believed First Respondent had taken over from their employer.

ANALYSIS

A reading of the application for review shows that at the top of the application (page 7), appears the wording “Form LC 5”. Thereafter the citations are given and a paragraph naming the tribunal and date of decision. The Applications proceed to list the grounds for review which are four (4) in number. The next item is the prayer.

The following wording is omitted:

“And take notice that the accompanying affidavit shall be used in support of the application.

Further take notice that if you wish to oppose the application you are required to file a Notice of Response together with an opposing affidavit setting out the basis of your opposition within ten (10) working days.”

The use of the form is mandatory. In this case, the Court observes that the Applicants ‘modified’ the Form by eliminating some essential components. This cannot amount to ‘modification’. The essential components were that an affidavit was being relied upon in the application. Secondly, the other essential component dealt with the dies indiciae which should be brought to the attention of the other litigant. The other litigant has the right to know when and how he/she is supposed to act. KUDYA JA in Reverend Clement Nyathi v The Trustees for The Time Being of the Apostolic Faith Mission of Africa and Others SC 63/22 had occasion to cite GOWORA JA (as she then was) in Veritas v Zimbabwe Electoral Commission & Ors SC 103/20 thus at page 7 of the cyclostyled judgment:

“Contrary to the requirements of Form 29, which are peremptory, there was no attempt to give notice to the respondents of what was required of them to oppose the application. The form excludes those fundamental elements upon which an application is founded, which are material for purposes of giving notice to a respondent of his rights as regards the application. It did not state the dies induciae operating against the respondent for purposes of mounting any opposition.. I hold that the application is as a result fatally defective.”

It is my view that there is nothing for this Court to add to the above reasoning which this Court identifies with. As determined by KUDYA JA in the above quoted case the form shows that actions are supposed to be done ‘within’ a certain period of time and this denotes the provision as peremptory. These are some of the omissions made by the Applicants in their ‘modification’ of the Form LC 5. The application for review is clearly defective.

It is also my considered view that the preliminary point dealt with above is dispositive of the matter and there is no need to deal with the second preliminary point raised by Mr. Zinyengere.

Whilst Mr. Zinyengere prayed for costs, it is my view that the Applicants may not be in any position to meet any costs in their present circumstances. This however should not be a carte blanche to the Applicants to lodge any and every application in the circumstances. Litigation has to be purposeful.

In the result, the Court makes the following Order.

The first preliminary point is hereby upheld.

The application for review is hereby struck of the roll by reason of a defective application.

There is no order as to costs.

Zinyengere Rupapa Legal Practitioners-		First Respondent’s legal practitioners.