Burawudi and 2 Others v Mupangani N.O and Another (357 of 2023) [2023] ZWLC 9 (5 December 2023)

IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/357/2023

HARARE 10 OCTOBER 2023 CASE NO LC/H/451/23

05 DECEMBER 2023

TEMBO BURAWUDI & 2 OTHERS APPLICANTS

FAITH MUPANGANI N.O. & ANOTHER RESPONDENTS

Before the Honourable G. Musariri Judge:

For Applicants Mr R. Goba, Advocate

For Respondent Ms C. Makura, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court 2^nd Respondent raised points in limine which

Applicants opposed. However Respondent abandoned the point pertaining to the form of the

application. The remaining points shall be dealt with ad seriatim.

1. Whether 1^st and 2^nd applicants are properly before the Court

The point is expatiated in 2^nd respondent’s opposing affidavit thus,

“7. The 2^nd respondent takes issue with the stance taken by the 2^nd applicant in purporting to appear on behalf of the 1^st and 3^rd applicants without the parties deposing supporting affidavits to the application. It only points to one conclusion that the 2^nd applicant is acting on a frolic of her own. In addition to that, the 2^nd applicant is the deponent to the founding affidavit whereas the 1^st applicant does not have any founding papers before the court and yet he is cited as the 1^st applicant. He neither deposes to the founding affidavit as the dominus litis nor does he tender a supporting affidavit to the present application. By that, the cause of action does

JUDGMENT NO LC/H/357/2023

not have a driver and thus cannot stand. One cannot place something on nothing and expect it to stay there. It will collapse like a deck of cards.”

2^nd Applicant countered in her answering affidavit as follows;

“10. As I stated on my founding affidavit, I have always made representations for and on behalf of the 3^rd Applicant. I attach hereto my authority to act for and on behalf of the 3^rd Respondent (sic) in this regard.

11. I further provide the 1^st Applicant’s confirmation that he duly authorised me to make such representations. Find attached his confirmatory affidavit.

The point in limine lacks merit primarily because the underlying judgement sought to be appealed to the Supreme Court cites both the 1^st and 3^rd applicant. 2^nd applicant was therefore

obliged to cite them in the application for leave to appeal whether or not they consented to the

citation. It would then be open to them to associate or dissociate with or from the application. That

is the standard practice regarding appeals involving multiple appellants.

2. Whether the 1^st applicant’s affidavit was properly commissioned by a Commissioner of Oaths

This point is rendered moot by the Court’s conclusions above regarding the 1^st point in limine.

3. Whether the draft grounds of appeal raise points of law

The point was raised in 2^nd respondent’s opposing affidavit. However it was not taken up

in oral argument. Further and in any event the point deals with the heart or quintessence of the

application for leave to appeal. It cannot properly be determined as a preliminary issue. It is a key

issue to be determined by this Court after full argument by the parties.

Conclusion

All in all it is concluded that the points in limine were misconceived and should not have been taken.

JUDGMENT NO LC/H/357/2023

Wherefore it is ordered that,

1. The 2^nd respondent’s points in limine be and are hereby dismissed;

2. The Registrar of this Court is directed to re-set the matter for continuation on the earliest available date; and

3. Costs shall be costs in the cause.

7. MUSARIRI J-U-D-G-E