Musa Manyika v Leabridge Investments (Pvt) Ltd

The applicant was employed by the respondent as a sales representative on 12 April 2013. On 7 July 2014, he was suspended without pay pending a disciplinary hearing. A disciplinary hearing chaired by Pardon Chakanyuka was held on 24 July 2014, charging the applicant with contraventions of SI 15 of 2006. The parties reached a settlement agreement on 22 October 2014 for reinstatement effective 1 December 2014. However, on 5 December 2014, the applicant was suspended again with similar charges plus one additional charge. Disciplinary proceedings commenced on 11 December 2014 before the same chairperson. The applicant filed a review application with the Labour Court on 16 December 2014, but the disciplinary hearing proceeded on 17-19 December 2014, resulting in the applicant's dismissal. The Labour Court granted a default judgment on 20 May 2015 in favor of the applicant, which was subsequently partially rescinded on 4 March 2016. The applicant appealed to the Supreme Court (SC 384/17), which heard the matter on 21 May 2020 and reserved judgment. On 31 December 2020, the disciplinary chairperson Pardon Chakanyuka died. On 13 April 2021, the applicant brought the current application seeking a declaratory order that the disciplinary proceedings were null and void, and seeking reinstatement or damages.

• Whether the application constitutes lis pendens given the pending appeal before the Supreme Court
• Whether the current application and the pending Supreme Court appeal share the same cause of action
• Whether the current application and the pending Supreme Court appeal involve the same subject matter
• The requirements for establishing the defence of lis pendens

1. The point in limine of lis pendens succeeds. 2. The application be and is hereby dismissed with costs.

For the defence of lis pendens to succeed, the following requirements must be met: (1) there must be another pending matter, (2) between the same parties, (3) on the same cause of action, and (4) in respect of the same subject matter. The cause of action is determined by the substance of the claim, not the technical grounds or reasons advanced. Where two proceedings both seek to set aside disciplinary proceedings and obtain reinstatement, they share the same cause of action and subject matter regardless of whether one is based on procedural irregularities and the other on supervening impossibility. The court will look to the relief sought and the essential nature of the dispute rather than the form or specific legal arguments presented.

The court noted that the respondent did not pursue a second preliminary point that had been raised. The court also observed that it was inappropriate for the applicant's counsel to argue that the pending Supreme Court appeal was academic and moot based on his own views about the effect of the disciplinary chairperson's death, when no court had declared the proceedings a nullity. The court cited the principle underlying both lis alibi pendens and res judicata: that there should be finality in litigation, and that the same suit between the same parties should be brought only once and finally.

This case illustrates the application of the doctrine of lis pendens in Zimbabwean labour law proceedings. It establishes that courts will not permit duplication of litigation where the same parties seek substantially the same relief based on the same underlying dispute, even where different legal grounds are advanced. The case reinforces the principle of finality in litigation and demonstrates that courts will focus on the substance of the relief sought rather than the technical form or specific legal grounds advanced. It provides guidance on how to assess whether two matters involve the same cause of action and subject matter, particularly in the employment law context where disciplinary proceedings may be challenged on multiple grounds.