AN
APPLICATION FOR AN ORDER OF LEAVE FOR DIRECT ACCESS TO THE
CONSTITUTIONAL COURT
GOWORA
JCC:
This is an application for direct access to this Court made in terms
of section 167(5) of the Constitution of Zimbabwe, 2013 (“the
Constitution”), as read with Rule 21 of the Constitutional Court
Rules, 2016 (“the Rules”).
The
applicant intends to approach the Court in terms of section 85(1) of
the Constitution, seeking an order that his rights as enshrined in
the Constitution were infringed by the first respondent's
non-executive board members, its board, the arbitrators awards,
Labour Court judgments, and the Supreme Court.
The
rights so infringed being:
(i)
The right to equal protection of the law in terms of section 56(1);
(ii)
The right to privacy in terms of section 57(c) and (e);
(iii)
The right to access information in terms of sections 62(2) and 62(3);
(iv)
Labour rights in terms of sections 65(1) and 65(4);
(v)
The right to administrative justice in terms of sections 68(1) and
68(2);
(vi)
The right to a fair hearing in terms of sections 69(2) and 69(3); and
(vii)
The right to property in terms of sections 71(3) and 71(4).
At
the commencement of the hearing Mrs Zvedi, on behalf of the
Attorney-General took a preliminary point regarding the citation of
the Attorney-General as a party to these proceedings.
It
was her view that there was no law being impugned in the application
and that, as a consequence, the joinder of the Attorney-General as a
party was irregular. She applied for his removal as a party to the
proceedings.
The
applicant was of the view that the Rules required his citation but
was constrained to concede that the citation had been done in error.
Mr
Nyamakura on behalf of the first respondent did not object to the
application which was granted by consent. The Attorney General was
therefore removed from the proceedings and excused from further
participation.
This
left one respondent as a party, and any reference to the respondent
will be in respect of the first respondent herein.
FACTUAL
BACKGROUND
The
applicant was formerly employed by the respondent as its General
Manager cum Chief Executive Officer. On 26 February 2009, he was sent
on special leave, and on 19 May 2009, he was notified by the
respondent of its decision to terminate his employment.
Aggrieved
by the decision to terminate his employment, the applicant filed a
complaint of unfair dismissal. The matter proceeded to arbitration.
The arbitrator found in his favour, set aside the dismissal, and
ordered the reinstatement of the applicant with effect from the date
of his dismissal.
Thereafter,
negotiations for reinstatement having failed, the matter was again
referred to the arbitrator for quantification of damages in lieu of
reinstatement. The arbitrator quantified his award for damages in
lieu of reinstatement and ordered the respondent to pay the same.
The
applicant, being dissatisfied with the arbitrator's award, appealed
to the Labour Court on several grounds pertaining to the question of
his reinstatement, the date of termination of his employment, his
correct monthly salary, and his entitlement to contractual benefits.
The respondent, in turn, cross-appealed, defending the propriety of
its decision not to reinstate the applicant and challenged the
arbitrator's award of punitive damages and, further to this, his
failure to deduct certain amounts allegedly owed by the applicant to
the respondent.
The
Labour Court dismissed the appeal and partially allowed the
cross-appeal to the extent of setting aside the arbitrator's award
of punitive damages.
Consequently,
the applicant appealed to the Supreme Court, and the Court ordered a
minor favourable adjustment to the contractual benefits that the
applicant was entitled to. The matter was thereafter remitted to the
arbitrator to deal with the adjustment.
Before
the arbitrator, the applicant raised several preliminary issues,
which were dismissed. The applicant proceeded to appeal against that
interim award to the court a quo.
That
appeal was struck off the roll on the basis that he had improperly
appealed against an interim order.
Aggrieved,
the applicant filed an application for leave to appeal to the Supreme
Court. The matter was set down for the hearing of the application for
leave to appeal at which stage the applicant made an oral application
for the joinder to those proceedings of an application for referral
to this Court.
The
application for joinder was dismissed, and the two matters were heard
separately.
In
its judgment, viz, Erickson Mvududu v Agricultural and Rural
Development Authority LC/H/23/21 dated 26 March 2021, the Labour
Court made a finding that the application for referral was frivolous
and vexatious. The application for leave to appeal to the Supreme
Court was still pending at the time of the hearing of this
application.
It
proceeded to dismiss the application for referral.
Aggrieved
by the dismissal of the referral application, the applicant filed the
present application on 21 April 2021.
Even
though he was the party bringing the suit, contrary to settled
procedural principle, the applicant raised a number of preliminary
issues for determination.
He
averred in limine that the respondent had no authority to terminate
his employment, to appoint, suspend or discharge him, to pay such
remuneration and allowances to him, and to grant such leave of
absence to him, being a Board member in terms of the Agricultural and
Rural Development Authority Act [Chapter 18:01] (“the Act”).
As
such, he submitted that the arbitrator and all courts involved in the
matter ought not to have granted audience to the respondent without
first determining the issue of its locus standi in judicio.
In
so far as the judgment of the Labour Court is concerned, the
applicant contends that the decision violates his right as enshrined
in section 56(1). He avers that the conclusion that his application
was frivolous or vexatious was in itself a violation of the
Constitution.
His
argument is that the conclusion by the Labour Court that the decision
of the Supreme Court on the matter could not be challenged was
outside the scope of sections 44 and 45 of the Constitution.
He
contended that where a court misconstrues a law, applies it
incorrectly, or acts outside the law, there exists a prima facie
infringement of the right to equal protection of the law.
It
was the applicant's contention that the existing judgments in this
matter were obtained through fraudulent misrepresentation of facts by
the respondent who lied to the courts and misrepresented to the
courts that it had powers to terminate the applicant's employment
when it did not have such powers. In that regard, he alleged that
there was no termination in the first place.
As
such, he alleged that the application was neither frivolous nor
vexatious as found by the Labour Court.
The
applicant, therefore, submitted that his application enjoyed
prospects of success as the Board, which included him, was not the
appointing authority and therefore had no powers to terminate or
discharge him, neither did the respondent.
He
also contended that his salary was incorrectly calculated and that
the courts misconstrued the law or acted outside the law to the
extent that they rendered improper decisions.
It
is on this premise that the applicant argued that his rights had been
infringed.
He
submitted that he has no other remedy and stated that there was no
constitutional matter before the Supreme Court; hence there was no
room to appeal.
The
application was opposed by the respondent.
It
averred that the present application for direct access was improper
as there was an application for referral to the Constitutional Court
that was dismissed by the Labour Court, which raised similar issues
to the ones that the applicant was now raising.
It
was also argued that the present application did not raise any
constitutional issues but that the essence of the application was to
seek the reopening of the labour issues between the parties, which
have been dealt with conclusively up to the highest court of the
land.
It
was further contended that, in the draft order of the intended
substantive application, what the applicant was seeking was the
setting aside of all decisions and payment of alleged arrear salaries
and benefits, thereby indirectly seeking reinstatement.
It
was submitted that issues to do with unlawfulness or otherwise of the
termination of the applicant's employment contract and the remedy
therefor had already been determined to finality by the Supreme Court
and hence the matter was now res judicata.
In
that regard, the respondent submitted that the application was
frivolous and vexatious and, further to that, it was not in the
interests of justice that it be granted as it did not enjoy any
prospects of success.
It
did not raise constitutional issues.
It
was also submitted that in all proceedings leading up to the Supreme
Court, the applicant never at any stage challenged or disputed the
respondent's standing in the proceedings.
Lastly,
it was averred that the applicant had another remedy which is to seek
the enforcement of the damages which he was awarded for the alleged
unfair dismissal.
In
the notice accompanying the present application for direct access,
the applicant makes the statement that he is seeking leave, following
upon the dismissal of his application for referral of a
constitutional question to the Court.
It
becomes pertinent therefore to determine whether or not this is the
type of application contemplated by law consequent to a dismissal of
an application for referral and, if so, whether or not the
application as currently framed is properly before the Court.
Whether
this matter is properly before the Court
The
Labour Court had before it an application for the referral of alleged
violations of the applicant's rights by all the parties and
entities mentioned above. The facts upon which the application for
referral was based are identical to those alleged in the application
for direct access.
In
view of the procedure adopted by the applicant, it becomes necessary
for the sake of completeness that the relief sought before the Labour
Court and this Court be set out in full.
The
constitutional issues that the applicant sought to be referred were
the following:
1.
That the non-executive Board members, the respondent's Board or the
respondent had no and have no locus standi and have no right to be
heard in this court in terms of sections 4, 6, 7, 8, 9, 11, 13, 23,
20(1) First Schedule [section 21(1) (sic)] – POWERS OF AUTHORITY,
paras 12 and 33 of the Agricultural and Rural Development Authority
Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15
of 2006 to take any action it took in this matter.
The
Arbitrators awards, Labour Court judgments and Supreme Court judgment
are nullities at law.
The
non-executive Board members, the respondent's Board, the
respondent, the Arbitrators and the courts are infringing the
appellant's fundamental rights as enshrined in sections 11 and
18(1) of the former Constitution of Zimbabwe and sections 3(1)(a),
3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 65(1), 65(4),
68(1), 68(2), 71(3), 71(4), 85(1), and 165(1) of the Constitution of
Zimbabwe Amendment (No.20) Act, 2013.
2.
The non-executive Board members, the respondent's Board, the
respondent, the Arbitrators and the courts have no authority to
terminate the applicant's contract of employment in terms of
sections 23, 20(1) First Schedule [section 21(1)] (sic) – POWER OF
AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development
Authority Act [Chapter 18:01] as read with section 5 of Statutory
Instrument 15 of 2006.
The
non executive Board members, the respondent's Board, the
respondent, the Arbitrators and the courts are infringing the
appellant's fundamental rights as enshrined in sections 11 and
18(1) of the former Constitution of Zimbabwe and sections 3(1)(a),
3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2),
62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(3), 71(4), 85(1), and
165(1) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013.
3.
The non-executive Board members, the respondent's Board, the
respondent, the Arbitrators and the courts have no authority to
unilaterally refuse and endorse the refusal to reinstate the
applicant in terms of section 89(2)(c)(iii) of the Labour Act
[Chapter 28:01], sections 23, 20(1) First Schedule [section 21(1)
(sic) – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural
and Rural Development Authority Act [Chapter 18:01] as read with
section 5 of Statutory Instrument 15 of 2006.
The
non executive Board members, the respondent, the Arbitrators and the
courts are infringing the appellant's fundamental right as
enshrined in sections 11(a) and 18(1) of the former Constitution of
Zimbabwe and section 56(1) of the Constitution of Zimbabwe Amendment
(No.20) Act 2013.
4.
The non-executive Board members, the respondent's Board, the
respondent, the Arbitrators and the courts have no power to violate
the applicant's right to protection of the law by ordering
quantification of damages without a legal termination of the
applicant's contract of employment.
The
non-executive Board members, the respondent's Board, the
respondent, the Arbitrators and the courts are infringing the
appellant's fundamental rights as enshrined in section 20(1) First
Schedule [section 21(1) (sic)] – POWERS OF AUTHORITY, paras 12 and
33 of the Agricultural and Rural Development Authority Act [Chapter
18:01]; sections 6 and 7 of the Labour Act [Chapter 28:01]; section 5
of Statutory Instrument 15 of 2006; sections 11(a), 16(1), 16(3) and
18(1) of the former Constitution of Zimbabwe and sections 3(1)(a),
3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2),
62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(3), 71(4), 85(1), and
165(1) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013.
5.
In casu, the non-executive Board members, the respondent's Board,
the respondent, the arbitrators and the courts have no authority to
invoke the principle of retrospectivity without legal termination of
the applicant's contract of employment.
The
non-executive Board members, the respondent's Board, the
respondent, the arbitrators and the courts are infringing the
appellant's fundamental rights as enshrined in sections 11, 18(1)
of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b),
3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3),
65(1), 65(4), 68(1), 68(2), 68(3), 71(1), 71(3), 71(4), 85(1), and
165(1) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013.
6.
The applicant's backpay (salaries and benefits), insurance benefits
and pension benefits are vested rights which cannot be taken away
without compensation.
The
respondent's management, the non-executive Board members, the
respondent's Board, the respondent, the arbitrators and the courts
cannot take away the applicant's salary and benefits in terms of
section 13(2) of the Labour Act [Chapter 28:01].
The
respondent's management, the non-executive Board members, the
respondent's Board, the respondent, the arbitrators and the courts
are infringing the appellant's fundamental rights as enshrined in
section 16(1) of the former Constitution of Zimbabwe and sections
66(2), 62(3), 71(1), and 71(4) of the Constitution of Zimbabwe
Amendment (No.20) Act, 2013.
7.
The non-executive Board members, the respondent's Board, the
respondent, the arbitrators and the courts have no authority to set
the remuneration of the applicant in terms of section 20(1) First
Schedule [section 21(1)(sic)] – POWERS OF AUTHORITY, para 12 of the
Agricultural and Rural Development Authority Act [Chapter 18:01],
section 161(1) of the former Constitution of Zimbabwe and section
71(1) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013.
8.
The applicant's premature termination of employment, illegal
termination of employment and/or invoking the principle of
retrospectivity take away the applicant's vested right to backpay
(salaries and benefits) and infringe the appellant's fundamental
rights as enshrined in section 16(1) of the former Constitution of
Zimbabwe and sections 62(2), 62(3), 71(1) and 71(4) of the
Constitution of Zimbabwe Amendment (No.20) Act, 2013.
In
the meantime, the relief sought from the Court following the grant of
an order for direct access is framed in the following manner:
“1.
That the applicant's rights to the protection of the law enshrined
in section 56(1) of the Constitution of Zimbabwe, to access
information enshrined in sections 62(2) and 62(3) of the Constitution
of Zimbabwe, to labour rights enshrined in sections 65(1) and 65(4)
of the Constitution of Zimbabwe, to administrative justice enshrined
in sections 68(1) and 68(2) of the Constitution of Zimbabwe, to a
fair hearing enshrined in sections 69(2) and 69(3) of the
Constitution of Zimbabwe and to right to property enshrined in
sections 71(3) and 71(4) of the Constitution of Zimbabwe were
infringed by the Arbitrator's Interim Award dated 14 July 2010, the
Arbitrator's Award dated 28 October 2010, the Labour Court's in
its Judgment No. LC/H/87/14, the Supreme Court in its Judgment No. SC
58/2015, the Arbitrator's Interim Arbitration Award of 26 July
2017, the Labour Court's Judgment No. LC/H/279/2018, the Labour
Court's Judgment No. LC/H/23/2019 and the Labour Court's Judgment
No. LC/H/23/2021 in the matter of Erickson Mvududu v Agricultural and
Rural Development Authority in that the hearings a quo and the courts
a quo failed to appreciate that they were disabled to render such
decisions.
ACCORDINGLY
IT IS ORDERED:
2.
That the Arbitrator's Interim Award dated 14 July 2010, the
Arbitrator's Award dated 28 October 2010, the Labour Court in its
Judgment No. LC/H/87/14, the Supreme Court in its Judgment No.
SC58/2015, the Arbitrator's Interim Arbitration Award of 26 July
2017, the Labour Court's Judgment No. LC/H/279/2018, the Labour
Court's Judgment No. LC/H/232/2019 and the Labour Court's
Judgment No. LC/H/23/2021C be and are hereby declared null and void
and of no force or effect and are set aside.
3.
That the dismissal of the applicant from employment by the first
respondent's Board and the first respondent on 19 May 2009 was
unlawful, null and void and accordingly, it is hereby set aside.
4.
That the first respondent be and is hereby ordered to pay the
applicant his arrear salary, allowances and benefits with effect from
1 March 2009.
5.
That the respondents (if they oppose this application) jointly and
severally pay the costs of this application the one paying the other
to be absolved.”
The
Labour Court had to decide whether or not the application for
referral on the questions as framed in the draft had merit.
The
application for referral was determined on the merits by the Labour
Court.
The
reasoning by the court in such an application is an important factor
in assessing whether or not the court exercised its mind properly in
coming to the conclusion that the application was frivolous or
vexatious. It is therefore necessary to set out the reasoning in
extenso.
The
learned judge of the Labour Court stated:
“The
issues that the applicant is seeking to raise are not directly
relevant, or do not arise from the proceedings before the court. No
constitutional infringement has been alleged in relation to the
proceedings of the application for leave to appeal. The applicant
seeks to impugn all decisions that have been handed down and all
awards that have ever been handed down in his case and they are not
few considering that his dismissal was in May 2009 and to date the
matter is still in the courts.
It
has been to the Supreme Court, the then apex court of the land and
back.
The
challenges that are now being raised as constitutional issues were
decided up to the Supreme Court level and cannot now be revisited and
if they must, it cannot be this Court that can revisit a decision of
the Supreme Court.
The
Labour Court has no such jurisdiction.
The
issues also raised as constitutional issues must also be such that
the Labour Court has jurisdiction over them. The Labour Court has no
powers of reviewing process that has been through the courts up to
Supreme Court. This court can also not even review decisions of other
Judges of the Labour Court which were handed down by the other
Judges. The court cannot even review actions taken by management at
the respondent workplace unless it is referred through the proper
channels.
For
example, one of the alleged constitutional breach alleged is 'The
most serious infringement of the applicant's fundamental rights is
the fact that the applicant was unlawfully dismissed without any
misconduct charges being laid against him, let alone, without
following appropriate procedure in termination of the applicant's
contract of employment…'
That
this was a breach of the applicant's contract was settled up to the
Supreme Court level and he was awarded damages for the unfair loss of
his employment.
We
cannot keep on going back to the breaches which have already been
settled by the courts.
There
must be an end to litigation; once the Supreme Court settled the
dispute that is the end of the road save for the quantification
issues.
The
applicant alleges that all the awards, all the Labour Court judgments
and the Supreme Court judgments were disabled.
If
there was anything wrong with the Supreme Court judgment, it cannot
be brought back to the arbitrators and the Labour Court.
The
issues raised, the manner in which they are being raised seem to lend
credence, to the fact that the appellant is just being frivolous and
vexatious.
In
deciding whether the matter being raised is frivolous, the court has
been referred to the case of Martin v Attorney–General and Anor
1993 (1) ZLR 153 (S).
In
that case, the court stated that:
'In
the context of section 24(2), the word 'frivolous' connotes, in
its ordinary and natural meaning the raising of a question marked by
lack of seriousness, one inconsistent with logic and good sense, and
clearly so groundless and devoid of merit that a prudent person could
not possibly expect to obtain relief from it.
The
word 'vexatious' in contradistinction, is used in the sense of
the question being put forward for the purpose of causing annoyance
to the opposing party, in the full appreciation that it cannot
succeed; it is not raised bona fide, and a referral would be to
permit the opponent to be vexed under a form of a legal process that
was baseless.'
It
is this Court's considered view that in raising preliminary points
which seek to challenge a decision of the Supreme Court before the
arbitrator and again before the Labour Court and also in seeking to
reopen the dispute on the merits of the fairness of the decision when
the Supreme Court has already pronounced itself on that issue, the
applicant's conduct is indeed marked by a lack of seriousness and
the conduct is inconsistent with logic and good sense.
He
surely cannot expect to succeed in getting the arbitrator and this
court to review a decision by the Supreme Court.
The
applicant cannot seriously expect the arbitrator and the Labour Court
to reopen the dispute at this stage.
The
applicant must be taken to appreciate that he cannot succeed. He is
merely being vexatious. In the result, the application is held to be
frivolous and vexatious.”
A
perusal of the draft order attached to the application for referral
to the Court for determination on the merits reveals that it is the
same relief as sought in the main application sought to be filed
herein.
When
regard is had to the judgment of the court a quo, it is evident that
the learned judge considered whether the application for referral was
justified. The learned judge was alive to the requirement that the
court exercises its mind on the question of whether the request for
referral was frivolous or vexatious.
The
court sought reliance from the dicta in Martin v Attorney General &
Anor (supra) as is evident from the judgment of the court a quo
above.
What
is at issue for consideration herein is whether or not a person is
precluded from applying to this Court for redress under section 85
where an application for referral is refused by a subordinate court.
The
question posed herein was discussed and decided in Martin v A G
(supra), wherein the court stated at p156D-F:
“The
fallacy of the contention is self-evident. Suppose that a judicial
officer, solely due to animosity towards an accused, in bad faith and
without any warrant, were to rule that the question raised by him was
frivolous or vexatious and so order his remand in custody pending
trial. Could it then be said that the accused was only entitled to
approach the Supreme Court for relief under section 24(3)?
I
think not.
Such
action by the judicial officer concerned would, as mentioned before,
itself constitute an infringement of the accused's entitlement to
protection of the law. Moreover, and most importantly, since at the
conclusion of any remand proceedings there is no right of appeal, no
remedy under section 24(3) would be available to that accused.”
Section
24(3) of the former Constitution which was under consideration in
Martin (supra) provided as follows:
“Where
in any proceedings such as are mentioned in subsection (2) any such
question as is therein mentioned is not referred to the Supreme
Court, then without prejudice to the right to raise that question on
any appeal from the determination of the court in those proceedings,
no application for the determination of that question shall lie to
the Supreme Court under subsection (1).”
In
construing the section the court went on to state at p158F–159A:
“On
the other hand, if a judicial officer, after applying conscientious
and objective thought to the question raised in the proceedings
before him, were to express the opinion that it was frivolous or
vexatious, the requesting party would, in consequence, have no locus
standi to apply to the Supreme Court for redress under section 24(1).
He
would only be entitled, if an appeal lay from the determination of
the proceedings, to raise the question in reliance upon the
provisions of section 24(3).
For
these reasons I am satisfied that the present application was
correctly brought under section 24(1) of the Constitution. The order
made by the magistrate was, in the circumstances, beyond his
jurisdiction. This court must now place itself in the position it
would have been had the magistrate, as he ought to have done,
referred to it the question raised before him."
However,
in a subsequent matter, S v Mbire 1997 (1) ZLR 579, the Supreme Court
spelt out that it was only in rare and special situations such as
were found to exist in Martin v A-G,(supra), that an application
under section 24(1) would be entertained against a refusal for
referral under section 24(2).
The
applicant seeks leave for access to the Court in terms of section
167(5) of the Constitution.
When
regard is had to the dicta in Martin v A-G it is clear that once a
finding is made that the application for referral is frivolous or
vexatious the requesting party is precluded from approaching the
court under section 85 for the determination of the question.
The
position is different where the requesting party alleges that those
proceedings on their own violated his right.
That
is not the contention in casu.
The
applicant intends to obtain an omnibus order for the setting aside of
all proceedings between himself and the respondent.
What
is evident is that the Labour Court has made a determination of the
questions sought to be raised by the applicant and found no merit in
the alleged constitutional violations. The court made a decision that
there must be finality to litigation and that there is no legal basis
on the papers filed by the applicant to substantiate an allegation of
the violation of his rights. The court stated that there is no legal
recourse open to the applicant to have all the processes surrounding
his dispute with the third respondent to be reopened.
This
is the relief he seeks before the Court.
A
pronouncement having been made on the issue, it is now res judicata.
The judgment of the Labour Court is extant and remains so until and
unless set aside. It has not been set aside and binds all parties
thereto.
In
view of the position of the Court as a specialised court, an
applicant for direct access must show that it is in the interests of
justice for access to be granted.
One
of the factors for consideration by the Court is whether or not the
application has prospects of success.
In
Lytton Investments (Pvt) Ltd v Standard Chartered Bank Limited and
Another CCZ 11/18, the court stated:
“The
Court turns to determine the question whether the applicant has shown
that direct access to it is in the interests of justice. Two factors
have to be satisfied.
The
first is that the applicant must state facts or grounds in the
founding affidavit, the consideration of which would lead to the
finding that it is in the interests of justice to have the
constitutional matter placed before the Court directly, instead of it
being heard and determined by a lower court with concurrent
jurisdiction.
The
second factor is that the applicant must set out in the founding
affidavit facts or grounds that show that the main application has
prospects of success should direct access be granted.”
The
Court has spelt out what an applicant is required to establish in
order to gain access to its portal.
In
casu, the applicant has failed to show that the application has
prospects of success.
The
Labour Court determined that the application was frivolous and
vexatious. That judgment precludes him from making an application for
direct access. The prospects of success of the main application have
been found wanting. Accordingly, unless and until the judgment is set
aside, the parties hereto must adhere to it.
In
the premises, the application is dismissed with no order as to costs.
GARWE
JCC: I agree
MAKARAU
JCC: I agree
G.
N. Mlotshwa & Company, first respondent's legal practitioners
