Amos Ernest Pasinawako v Parks and Wildlife Management Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/267/14
HELD AT HARARE ON 29TH JANUARY, 2014
CASE NO. LC/H/990/12
AND 9TH MAY, 2014
JUDGMENT NO. LC/H/267/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/267/14

HELD AT HARARE ON 29TH JANUARY, 2014   CASE NO. LC/H/990/12

AND 9TH MAY, 2014

In the matter between:-

AMOS ERNEST PASINAWAKO 					Appellant

And

PARKS AND WILDLIFE MANAGEMENT AUTHORITY	Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: Mr. W. Pasipanodya (Legal Practitioner)

For Respondent: Mr. P. Zhangazha (Legal Practitioner)

MHURI J.:

On the 10th December, 2012 Respondent filed a notice of appeal in this court against an arbitral award which was issued on the 18th November, 2012.  The notice of appeal (LC3) and notice by Registrar (LC2) were served on and received by the Appellant’s legal practitioners on the same date at 15.45 hours.

LC2 is a notice by the Registrar requiring a Respondent to file a response to the appeal or application within 14 days of the date of the notice (Rules 15 and 16 Sub-rules 2 of Labour Court Rules Statutory Instrument 59 of 2006).

In compliance with the Registrar’s notice, on the 18th December, 2012 Appellant duly filed his notice of opposition to the Respondent’s appeal.  On the same date, Appellant filed his notice of cross-appeal which cross appeal is the subject of these proceedings.

A point was raised by Respondent’s Legal practitioner that the appeal was filed out of time (by 1 day).

According to the award, the date of issue is indicated as the 18th of November 2012.  The 18th was a Sunday.  Upon reflection it was accepted that since the award is dated 18 November, 2012 it can be presumed that it was issued to the parties after this date and if that is so, then the cross appeal filed on the 18th December, 2012 was in time.

The other point raised by Respondent was that the cross appeal, it being an appeal was not filed in the appropriate format as required by the Rules.

Whilst there is no Rule that specifically deals with cross-appeals, I agree with the Respondent’s Legal Practitioner that a cross-appeal is an appeal and is governed by the Rules governing appeals.  The only distinction is that an appeal is lodged by an Appellant whilst a cross-appeal is an appeal lodged by the Respondent though, both arise from the same proceedings.

To that end therefore once a cross-appeal has been filed, the same procedures governing appeals are set into motion.

Rule 15 sub-rules (1) and (2) are the provisions which are applicable in casu.

Subrule (1) is couched in peremptory terms.  It reads:-

“(1)	A person wishing to appeal against any decision ….. shall within 21 days from the date when Appellant receives the decision …

do the following

Complete in three copies a notice of appeal in Form LC3.

Make three copies of any documents referred to …

Serve one copy of the notice of appeal therefore … on the Respondent.

File with the Registrar one of the copies of the notice of appeal …

….

Proof (…) that the notice of appeal was served on the Respondent.”

In casu, Appellant did not follow the procedure as outlined above.  All he did was attaching the notice of the cross-appeal to this notice of response (on LC2 form) to Respondent’s appeal.  LC2 form as stated earlier is a form used by a Respondent when filing a response.  LC 3 form is the form used when filing an appeal.  There is no Rule that provides that one form can be used for two distinct processes like what Appellant did in this case.

On page 1 of LC2 form, Appellant typed

NOTICE OF RESPONSE TO APPLICANT/APPELLANT AND NOTICE OF CROSS-APPEAL

This was wrong.

On page 2 of the same form it is stated –

The following in brief is my response to the application/appeal,

and Appellant in his handwriting wrote

“See attached documents”.

The attached documents were the notice of opposition (correctly so) and the notice of the cross-appeal (this was wrong).

I find Appellant’s argument that the Rule does not apply to cross-appeals to be without any merit, as he, on the other hand raises an issue that Respondent did not file its notice of response timeously in compliance with the Rules.  A response to an appeal which he argues, the Rules do not apply?

Rules of Court are made so that they are followed.  Where there has been substantial compliance with the Rules, a party on application may be condoned for the failure to fully comply.  But where there has been total non-compliance with the Rules like what happened in casu, there cannot be any condonation as there is nothing to condone.

There is no proper appeal before the court.

In the result, it is ordered that the “cross-appeal” being improperly before this Court, it be and is hereby struck off.

Chinogwenya and Zhangazha–Appellant’s Legal Practitioners

Manase and Manase–Respondent’s Legal Practitioner