Zimbabwe National Network of People Living with HIV (ZNNP+) v Muchanyara Mukamuri & Another

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/249/25
HELD AT HARARE 11 JUNE 2025
CASE NO. LC/H/346/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/249/25 HELD AT HARARE 11 JUNE 2025	CASE NO. LC/H/346/25

AND 17 JULY 2025

IN THE MATTER BETWEEN:

ZIMBABWE NATIONAL NETWORK OF

PEOPLE LIVING WITH HIV (ZNNP+)	APPLICANT

MUCHANYARA MUKAMURI	FIRST RESPONDENT

LETWIN SIGAUKE N.O.	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Advocate B. Magogo

For First Respondent	Mr. T. Kabuya No Appearance for Second Respondent

MURASI J.,

This Court has rendered three judgments in this matter. The first was on 13 May 2024, the second on 19 December 2024 and the last one on 14 May 2025.

BACKGROUND

This matter was remitted by the Supreme Court for a hearing de novo. After its receipt by the Registrar, it was subsequently set down. On the date of the hearing, on 9 January 2024, Applicant was not attendance. This Court granted an Order in favour of the First Respondent. Applicant filled an application for rescission of judgment. This was dismissed in the judgment of 13 May 2024. Applicant filed an application for leave to appeal to the Supreme Court. However, Applicant failed to file heads of argument within the prescribed period of time and the matter was deemed abandoned in terms of the Rules. Applicant filed an application for reinstatement of the matter in Case Number LCH 953/24. That application was dismissed in the judgment dated 19 December 2024. Applicant thereafter filed an application for leave to appeal under Case Number LCH/61/25.

This suffered a still-birth at the application was struck off the roll for non-compliance with the Court Rules in addition to a defective Notice of Appeal.

Applicant has picked the decision of 19 December 2024 and seeks to be condoned and at the same time apply for leave to appeal to the Supreme Court. Applicant has termed the application a ‘Conjoined Application’.

Preliminary Issue

Mr. Kabuya submitted that the present application was not provided for in the Labour Act as well as the Court Rules. He further submitted that Rules 14, 32 and 43 did not sanction a ‘Conjoined Application’ as presently before the Court. He added that Rule 14 addresses how applications are made to the Court whilst Rule 32 provides for the departure from the Rules in appropriate and deserving cases. He argued that Rule 43 provides for an application for leave to appeal to the Supreme Court. He further submitted that in the circumstances, the application ought to be struck off the roll as it was improperly before the Court.

In response, Advocate Magogo submitted that the issues raised by the Respondent had been resolved by the Supreme Court which had long decided that a Conjoined Application was permissible in the circumstances. He referred to three judgments from the Supreme Court to support his averments. These were SC 86/14, Sc 11/22 and SC 6/24. Asked by the Court whether the Labour Court Rules provided for such a procedure, his response was a reading of those Rules shown that no rule was dedicated to condonation and leave to appeal. As to the citation of other Rules apart from Rule 43, he stated that it is to entreat the Court to hear the application for condonation. He added that where the Supreme Court had made such decisions, they are binding on the Court.

DETERMINATION OF PRELIMINARY POINT

Leave to appeal should sought in terms of Rule 43 of the Labour Court Rules, 2017 and such leave should be sought within the prescribed period of time. Where this has not been done, an application for condonation of late filing of the application for leave to appeal to the Supreme Court should be made. An applicant is disabled from seeking leave to appeal to the Supreme Court where s/he is out of time. The application for condonation of the late filing of the application for leave to appeal will of necessity have a draft Notice of Appeal to the Supreme Court attached. The Notice of Appeal contains the prospective grounds of appeal and the court a quo’s judgment which is sought to appealed against. Such a litigant, apart from giving reasons for the delay in filing the application for leave to appeal, has to motivate the prospective grounds of appeal. The court a quo, of necessity, has to determine the issue of the explanation tendered for the delay together with the prospects of success. In doing so, the court a quo comes up with a value judgment on whether there are prospects of success in the prospective appeal to the Supreme Court.

Once satisfied that there are no prospects of success, the court dismisses the application. This effectively means that what is required to be done in terms of section 92 F (2) is accomplished.

The same litigant cannot therefore state that there should be a conjoined application with one for condonation and the other for leave to appeal. The litigant would have been afforded the opportunity in that condonation application to make submissions on the prospects of success of the intended appeal to the Supreme Court.

THE RULES

The Labour Court Rules 2017 do not provide for the procedure of a conjoined application. Rule 43 provides for the application for leave to appeal to the Supreme Court. Rule 22, on the other hand, provides for condonation of applications for the late filing of appeals and reviews to the Labour Court. Condonation applications for leave to appeal to the Supreme Court is not provided for in Rule 22. Applications for condonation of the late filing of an application for leave to appeal to the Supreme Court have been dealt with as a matter of practice. I can only surmise that such applications derive their genesis from the common law. However, a mixture of the common law and statute can only be sanctioned by the Legislature. Conjoining an application for condonation of the late filing of an application for leave to appeal to the Supreme Court together with the actual application for leave to appeal to the Supreme Court would be to “create” a procedure which has not been provided for by the Legislature. It is a truism that in this jurisdiction matters of adjectival law are mostly provided for in Rules, in other words, statutory provisions.

Section 89 (1) (a) of the Labour Act, (Chapter 28:01) provides:

“(1) The Labour Court shall exercise the following functions:

(a) hearing and determining applications and appeals in terms of this Act or any other enactment.”

In National Railways of Zimbabwe v Zimbabwe Railway Artisans’ Union & Ors 2005 (1) ZLR 341 (S), ZIYAMBI JA had this say at page 347 A:

“Thus, before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application ‘in terms of this Act or any other enactment.’ This necessarily means that the Act or other enactment must specifically provide for the applications to the Labour Court, of the type that the applicant seeks to bring: see PTC v Chizema S-108-04. In that case, it was pointed out that an application brought in terms of s 93 (7) of the Act would correctly be termed an application ‘in terms of this Act.”

In Schierhout v Minister of Justice 1926 AD 99 at 109, INNES CJ stated as follows:

“It is a fundamental principle to our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done- and that whether the law giver has expressly so decreed or not, the mere prohibition operates to nullify the act.”

That the procedure adopted by the Applicant is alien to the Labour Court Rules is without doubt. Advocate Magogo conceded that the Rules did not provide for this procedure. Section 36 (1) of the Civil Evidence Act, (Chapter 8:01) provides that an admission as to any fact in issue in civil proceedings shall be admissible in evidence as proof of that fact and the court shall give such weight as it considers appropriate in the circumstances. If the decision of ZIYAMBI JA is taken to its logical conclusion, the Applicant should have pointed to a provision in the Act (or Rules) or other enactment providing for such a procedure. The Court is the non-wiser. Whence did the procedure come? Applicant points the finger at the decisions from the Supreme Court dealing with matters where litigants found themselves hamstrung following a failure to comply with the Rules. These are referred to in the following section.

PRECEDENT ON CONJOINED APPLICATIONS

Advocate Magogo submitted that precedent from the Supreme Court clearly showed that such applications are permissible at law. He referred to several decisions of the Supreme Court and stated that he would rely on ZESA Holdings (Private) Limited v Takawira Munyanyi & Anor SC 6/24. The matter was heard In Chambers by CHATUKUTA JA. The Learned Judge also referred to Chomurema v Tel One SC 86/14 and Zimbabwe Anti-Corruption Commission v Mangwiro & Anor SC 11/22. The Learned Judge had this to say at page 9 of the cyclostyled judgement:

“I do not agree, with respect, to KUDYA AJA that once an application for condonation has been dismissed, a party has the right of audience before this Court in the absence of an application in the Labour Court for leave to appeal and determination of that application…The Supreme Court is a creature of statute. A judge of the Supreme Court derives his/her powers to determine an application for leave to appeal from s 92 F (3) of the Labour Act.”

As stated elsewhere in this judgment, the Labour Court cannot proceed to determine applications not made in terms of the Labour Act or any other enactment. I clearly associate myself with the reasoning of KUDYA AJA (as he then was) in the ZACC v Mangwiro Case. As already outlined elsewhere in the judgment, an application for condonation would have a Draft Notice of Appeal to the Supreme Court attached to it. The Court a quo would have made a value judgment on the prospects of success. It would certainly be absurd to have the Court a quo determine ‘twice’ whether there were prospects of success as the application for condonation would call upon the court a quo to consider whether there were prospects of success on appeal. As pointed out by KUDYA AJA it could not have been in the contemplation of the Legislature to have such a circuitous route prevail prevail in labour matters.

In Muriel Mandengu and Twelve Ors v Shearwater Adventures (Private) Limited and Anor SC

48/25, MATHONSI JA began his judgment as follows:

“This is a composite application for condonation of the late filing of an application for leave to appeal and also for leave to appeal and extension of time within which to appeal. It is made in terms of rr 66 and 67 of the Supreme Court Rules, 2025.”

I should hasten to add that though this was a judgment in Chambers, it had the validation of two other Judges.

Further, at page 6, the Learned Judge proceeds as follows:

“Rule 66 (1) requires an appeal to be filed within 15 days of judgment while subr (2) requires that the appeal be noted within 15 days from the grant of leave to appeal by the Labour Court or Judge of this Court where leave is required. The proviso, to subr (2) allows an applicant to apply for leave to a judge of this Court within 10 days of refusal of leave.

Rule 67 entitles a judge, if special circumstances are shown by way of an application in writing, to condone the late noting of an appeal and extend the time within which to appeal. So, where a party is out of time to seek leave to appeal, such party may bring a composite application for condonation and extension of time within which to seek leave as well as for leave to appeal.”

The Learned Judge was dealing with the Supreme Court Rules, which allow for such a procedure. At page 12, it was observed that:

“In any event, both the Labour Act and the Rules of Court are silent on what happens where condonation for the late approach for leave is refused resulting in the Labour Court not considering the application for leave.”

My reading of this judgment shows that nowhere does the Learned Judge pronounce that the Labour Court is permitted in terms of the law to hear a ‘Composite Application’. Reference in the judgment is made to the Supreme Court Rules, 2025 which provide for such a procedure in Rules 66 and 67.

PRINCIPLE OF STARE DECISIS

In Denhere v Denhere & Anor 2019 (1) ZLR 554 (CC), it was held that the doctrine of stare decisis is a rule of precedent or authority, addressed to lower courts, to the effect that decisions of the higher courts on particular points of law presented to and passed upon by those courts are law. Lower courts are bound to obey them in similar cases in future until they are overruled, even though a rigorous adherence to them might at times work individual hardship. At page 566 D-E MALABA CJ had this to say:

“The rule of stare decisis does not require decision-makers to comply with a decision which is a precedent on a particular point of law in every case regardless of the circumstances. The language of the decision is to be construed not as a statement of abstract propositions without limitation. It must be construed in connection with the particular facts of the case

and the specific matters that were in view when the language was used. In other words, every rule of precedent has a set of juristic facts which it governs. The rule of stare decisis does not require adherence to a decision on a point of law in a case in which the state of facts is entirely different from the juristic facts governed by the precedent.”

In casu, Respondent has averred that the procedure adopted by the Applicant is not provided for in the Rules. That this procedure is not provided is conceded by the Applicant. That issue was never before the Supreme Court for determination. In my view, the Supreme Court dealt with the convenience of making a ‘Conjoined’ application in terms of the Supreme Court Rules. As shown elsewhere in this judgment, there was a divided view between some Judges as to whether an application for condonation of the late filing of an application for leave to appeal to the Supreme Court, when dismissed, would be sufficient to ‘trigger’ the operation of section 92 F (3) and this divergence of views has been put right in the cited judgment from MATHONSI JA.

The issue that was for determination was whether the Rules of the Labour Court provided for the procedure adopted by the Applicant. The answer is in the negative. The precedent sought to be relied upon by the Applicant shows that the procedure is permitted by the Supreme Court Rules. MATHONSI JA clearly make the observation that the Labour Act and the Rules are silent on the issue sought to remedied by the Applicant. The Labour Court Rules do not provide for such a procedure and the application should be deemed to be improperly before the Court.

In Gospel of God Church International 1932 v Vendeseni Mungweru and Ors SC 99/19, MAKARAU JA (as she then was) had this say at page 6 of the cyclostyle judgment:

“The above position is derived from the settled practice of the courts in this jurisdiction. It is the settled practice when writing a judgment to decide no more than what is absolutely necessary for the resolution of the legal dispute before the court. (See Nzara and Others v Kashumba N.O. and Others SC 18/18). Thus, for instance, if the court has no jurisdiction, no matter how interesting the legal point being raised by the parties, the settled practice is for the court to merely decline jurisdiction and withhold expressing an opinion on the interesting legal points. Similarly with findings such as in casu, that the application is ill founded, the court has no basis for proceeding any further.

A finding on a dispositive issue should mark the end of the court’s enquiry and of its curiosity too.”

In the result, the following Order is appropriate.

The point in limine is hereby upheld.

The ‘Conjoined Application’ for condonation of the late filing of an application for leave to appeal and the Application for leave to appeal to the Supreme Court is hereby struck off the roll by reason of it being improperly before the Court.

Applicant to meet Respondent’s costs.

Maposa Mahlangu Legal Practitioners-		Applicant’s legal practitioners. Matsikidze Attorneys at Law-	Respondent’s legal practitioners.