Court name
Bulawayo High Court
Case number
HC 163 of 2001

Makhwelo and Ors v N.I.M.R. And Chapman (Pvt) Ltd and Ors (HC 163 of 2001) [2002] ZWBHC 7 (13 February 2002);

Law report citations
Media neutral citation
[2002] ZWBHC 7

                                          Judgment No. HB 7/2002

 

                                          Case No. HC 163/2001

 

 

 

PORTION MAKHWELO AND 115 OTHERS

 

 

 

versus

 

 

 

N.I.M.R. AND CHAPMAN (PVT) LTD

 

 

 

IN THE HIGH COURT OF ZIMBABWE

 

KAMOCHA J

 

BULAWAYO 21 SEPTEMBER 2001& 14 FEBRUARY 2002

 

 

 

S Ndlovu for the applicants

 

T Cherry for the respondent

 

 

 

Opposed Application

 

 

 

      KAMOCHA J:  At the hearing of this application Mr Ndlovu

 

 

 

representing the applicants conceded that all other 115 applicants were not properly

 

 

 

before the court and their matter should be disregarded.  The concession was proper in

 

 

 

my view, and the court proceeded to hear arguments in respect of Portion Makhwelo

 

 

 

“Makhwelo” only.

 

 

 

      The applicant sought a provisional order which he was not granted.  A judge of

 

 

 

this court instead directed that the matter be set down for argument as opposed on any

 

 

 

Friday.  The final order that was being sought was in the following terms:

 

 

 

      “(1)  That the disciplinary proceedings instituted or held by respondent                  relating to the 116 applicants in terms of SI 301of 1996 be and are                 hereby declared null and void.

 

      (2)   That respondent bears the costs of this application.”

 

 

 

      To my mind this case is essentially a review of the proceedings of  a

 

 

 

disciplinary committee instituted by the respondent relating to the applicant and other

 

 

 

employees.  The papers filed of record do not comply with the rules of court.  The

 

 

 

applicant’s founding affidavit does not give the date when the decision which was

 

 

 

being brought under review was made.  It is, however, clear from the papers that the

 

 

 

                                                      7/02 

 

                              -2-

 

 

 

decision was made on 5 October 2000.   The applicant lodged his application on 18

 

 

 

January 2001well after the 8 weeks period stipulated by the rules of court.  The

 

 

 

applicant made no application for condonation.

 

 

 

      This is a labour dispute.  Since the applicant was aggrieved by the decision of

 

 

 

the Disciplinary Committee he should have sought to exhaust the domestic remedies

 

 

 

before launching this application in this court.  His explanation was that the time

 

 

 

limits had expired domestically.  He however conceded that some of his former

 

 

 

colleagues lodged their appeals out of time which were entertained domestically. 

 

 

 

There seems, in my view, to be no acceptable explanation why the applicant did not

 

 

 

exhaust his domestic remedies first before coming to this court.  It seems to me that

 

 

 

domestic remedies would have afforded the relief the applicant was seeking if it was

 

 

 

deemed appropriate.

 

 

 

      In conclusion I make a finding that the applicant has failed to proffer an

 

 

 

acceptable reason for his failure to exhaust his domestic remedies before coming to

 

 

 

this court.  In addition the application is out of time and there is no application for

 

 

 

condonation.

 

 

 

      In the result the order I issue is that the application be and is hereby dismissed

 

 

 

with costs.

 

 

 

 

 

 

 

 

 

Sibusiso Ndlovu & Partners applicant’s legal practitioners

 

Calderwood, Bryce Hendrie & Partners respondent’s legal practitioners