Zimbabwe International Quarries (Pvt) Limited v Nicholas Mazodze & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/125/24
HARARE, 20 FEBRUARY 2024
CASE NO LC/H/808/23
& 20 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 20 FEBRUARY 2024

& 20 MARCH 2024

JUDGMENT NO LC/H/125/24

CASE NO LC/H/808/23

ZIMBABWE INTERNATIONAL QUARRIES	APPELLANT (PVT) LTD

AND

NICHOLAS MAZODZE	1ST RESPONDENT

TAFIRENYIKA MAGADHI	2ND RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant		-	Mr S. Hoko (Legal Practitioner) For 1st Respondent		-	Ms T. Zivanayi (Legal Practitioner) For 2nd Respondent	-	No appearance

CHIVIZHE, J:

The matter was placed before me as a chamber application for leave to appeal to the Supreme Court against a judgment of this court rendered under reference LC/H/280/23 on the 22nd of September, 2023. The application which is premised on section 92F(2) of the Labour Act [Cap 28:01] as read with Rule 43 of the Labour Court rules, 2017 is opposed by the 1st Respondent. The 2nd Respondent is cited as a nominal Respondent.

POINT IN LIMINE

The 1st Respondent has taken a point in limine that, in terms of Rule 59(2) of the Supreme Court Rules S. I. 84 of 2018 it is a requirement that a notice of appeal be directed and delivered by the ‘Appellant’ to the Registrar. The draft notice of appeal annexed to the present application for leave is however defective in that it is directed to the Registrar by an

‘Applicant’ as opposed to an ‘Appellant’. It is the 1st Respondent’s further averment that on the basis of Bonde v National Foods Limited and 2 others SC67/20 where the Supreme Court held as follows;

“It is trite that the draft notice of appeal placed before the court in an application for leave to appeal becomes the notice of appeal which forms the basis of their appeal to be heard by the court. It is thus imperative that the draft notice of appeal must comply with the rules of the court. The Applicant’s notice of appeal is thus defective in this regard.”

the draft notice of appeal in this case is therefore fatally defective.

Applicant’s counsel, in oral submissions, noted that the point in limine was ‘frivolous and vexatious’. It was clear on a further reading of the draft notice of appeal that the reference to ‘Applicant’ and not ‘Appellant’ was an error as in other parts of the document there was reference made to ‘Appellant’ and not ‘Applicant’. It was Applicant counsel’s prayer that the court extend condonation and allow the Applicant to amend the draft notice of appeal upon submission of papers to the apex court. The court has dismissed the point in limine as taken. In so dismissing the point, the court notes that in as much as the infraction is based on the Supreme Court Rules, 2018, the court, can still, in the exercise of the discretion granted it under Rule 32 of the Labour Court Rules, 2017 condone the error as it is but a minor error which has been made in papers that are before this court. The Respondent has also failed to establish what prejudice, if any it stands to suffer were the draft notice of appeal to be so amended. The court has also placed reliance on the decision in Edmore Mapondera & 55 Others v Freda Rebecca Gold Mine Holdings Limited SC 81/22 where this court was encouraged to lean more towards correction of simple procedural errors in order to do real and substantial justice.

To turn to the merits, it is trite that in order for one to succeed with an application of this nature, one must satisfy two requirements. Firstly, the intended appeal must be on a question of law. Secondly, the intended appeal should carry reasonable prospects of success. In Mendson Mujulumba Mpofu v National Social Security Authority SC72/15 at Page 3, Gowora JA (as she then was) held as follows;

“Technically, leave to appeal can only be refused in the context of S92 where the court has made a valid judgment on whether the intended appeal raises questions of law or otherwise or where the intended appeal raises questions of law, there are no prospects of success attached to such an appeal.”

The Applicant’s sole intended ground of appeal in the Supreme Court is couched as follows;

1. The court a quo erred in holding that the disciplinary proceedings were unlawful on the basis that there was a pending matter before the National Employment Council for the mining industry when in fact the legal position as supported by Supreme Court decisions, is that an employer is entitled to institute a disciplinary hearing notwithstanding a pending conciliation process before a labour officer or an Employment Council/ Designated Agent.

The 1st Respondent through its notice of opposition contends that the intended ground of appeal does not have any prospects of success. I have considered the intended ground of appeal to the Supreme Court and the submissions as made by the parties in support of/against the intended ground. In light of the seemingly conflicting decisions in the matter of Augustine Tirivangani v University of Zimbabwe SC 21/13 and Munchiville t/a Bernstein Clothing v Chiedza Mugavha SC62/19 on the issue as to whether it is lawful for an employer to institute disciplinary proceedings in light of a conciliation process pending before a Labour Officer and by extension a Designated Agent of the NEC, I believe the present application for leave ought to succeed. The intended appeal is clearly raising ‘a question of law’ in the second sense as defined in the leading decision in the jurisdiction i.e. Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217(5) to which the court has also been aptly referred by the Applicant. The intended appeal seeks clarification on what is the true position of the law on the issue as referred to above. On this basis therefore, there is a reasonable prospect of success on appeal.

In the event the following order is made;

The application for leave is granted.

Costs of the application for leave to appeal shall be costs in the cause.