City of Harare v Dr Cainos Chingombe & 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/44/2021
HARARE, 5 APRIL, 2021
CASE NO. LC/H/APP/178/20
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/44/2021

HARARE, 5 APRIL, 2021		               CASE NO. LC/H/APP/178/20

AND 7 MAY, 2021

In the matter between:

CITY OF HARARE								Applicant

Versus

DR CAINOS CHINGOMBE & 2 OTHERS				Respondent

Before The Honourable Kachambwa J;

For Applicant:				T. Goro, Legal Practitioner

For Respondent:				L. Madhuku, Legal Practitioners

KACHAMBWA J:

Judgment (on point in limine)

The Arguments

1. This is an application for condonation for late filing of an application for leave to appeal to the Supreme Court. An application for leave to appeal is done in terms of Rule 43 of the Labour Court Rules Statutory Instrument 150 of 2017. The respondent took a point in limine to the effect that the application was improperly before the court as the applicant had not filed a copy of the intended application for leave to appeal. By failing to file the said copy the applicant was said to have denied the court the opportunity to consider the prospects of success of the intended application for leave to appeal.

2.	The respondent also argued that although it is not specifically mentioned for an application for condonation for late filing of an application for leave to appeal the need to file the intended application is self-evident as it is in line with the requirement as for the other applications in Rule 22 and Rule 43 of this court, particularly Rule 22 which deals with applications for condonation.

3.	In the address in court the respondents raised a further point to the effect that the founding affidavit was not in sinc with the draft order. The affidavit was for a composite remedy which is not captured in the notice and neither is it captured in the draft order. The affidavit was for a composite condonation for late filing of an application for leave to appeal and for the same leave to appeal. It specifically says so. The respondents said that such an application was unprocedural and that the applicant has to be specific to the application for condonation and if it succeeded on this it then goes to the next application. The affidavit was therefore said to be inappropriate firstly for what the notice said was the application before the court and secondly for what it also asked and thirdly for what the draft order asked for.

4.	The respondents also argued that the fact that the requirement for attaching the intended application is not mentioned in the rules is covered by section 90 of the Labour Act Chapter 28:01 (the Act). Subsection (3) thereof calls for the court to do what is best fit for the case. It was argued that in the present case the logic of the rules requires that a party must attach the intended application as per the other situations. Failure to so attach should lead to a striking off of the application.

5.	On the usual defence that the Labour Court is not a court of strict application of the rules of the civil courts it was said that the court remains a court of rules. That to allow parties to hide behind this would infact negate the point behind rules. An application for condonation invariably requires the court to look at the prospects of success and that can only be determined by filing the intended application. Failure to file it was therefore said to be fatal to the process, leading to the striking off of the application.

6.	On the other side the applicant said that there was no legal requirement to file the intended application, that section 90 (3) did not apply, that it was permissible to make the composite application. As for how the court would know what the applicant wanted in such a situation the applicant said that the draft order was the determinant. The applicant suggested that in the event that the court was not in favour of an affidavit that spoke of a composite application then the applicant would abandon the offending paragraphs.

7.	The applicant said that section 90 subsection (3) of the Act did not apply. That Rule 22 did not apply either and the applicant should not be held hostage to it. Only Rule 14 applies.

8.	On determining the prospects of success the applicant said that the court simply had to hear the arguments by the parties and read the judgment which is subject of the intended appeal and not concern itself with the draft notice of appeal.

9.	On the draft order the applicant said that the court was at large to change it. To this the respondents said that the change could only be done consistent with the founding affidavit as an application stands or falls on the founding affidavit.

10.	Both parties referred to the case of Shorai Mavis Nzara & 4 others v Cecilia Kashumba & 4 others SC 18/18. The applicant referred to it in its argument that it has prospects of success in the appeal because the court cannot grant what the parties have not asked for. The respondent referred to it to say that the founding affidavit and the draft order are not compatible and therefore the draft order may not be capable of amendment.

11.	The case of Gazi v National Railways of Zimbabwe 2015 (2) ZLR 208 at page 213 paragraphs (b) and (c) was referred to to strengthen the point that the Labour Court is a court of rules and parties must not mislead themselves by hiding behind Rule 32 which talks of departure from the rules;

ANALYSIS OF THE ARGUMENTS

12.	It is common cause that-

12.1	the applicant did not attach the intended application for leave to appeal.

12.2	the application for leave to appeal would have the grounds for appeal which would be applied to determine the prospects of success of the intended appeal.

12.3	this court has to determine the prospects of success of the application for leave to appeal which leave to appeal depends on the prospects of success of the appeal.

12.4	the Rules of the Labour Court do not specifically require that in an application for condonation for late filing of an application for leave to appeal the applicant should file a copy of the intended application for leave to appeal.

12.5	the founding affidavit has addressed a composite application as opposed to the application in the notice and the draft order. It has addressed on otherwise irrelevant matters as well.

12.6	Both parties are represented by lawyers.

12.7	the Labour Court is a court of Rules in the first place and departs from the rules to meet the justice of the case.

13.	It is the court’s view that the need for attaching the intended application in an application for condonation goes without saying. It is the basis upon which the court considers one of the critical issues in such applications – prospects of success. The fact that such attachment is not specifically provided for should not detract from the need to do so. Such should be the practice particularly in cases where legal practitioners are engaged. Section 90 (3) of the Act applies. Rule 22 applies.

14.	The founding affidavit and the application are not speaking the same thing. The founding affidavit has included irrelevant requests. Such mixing is not encouraged. It will reduce the court to a court of no rules. Infact this could be the genesis of a lot of the procedural problems the court has to deal with a lot of the times – lack of preciseness and clarity. In any case it is the experience in this case. The draft order has to capture succinctly the application as amplified in the founding affidavit. The application stands or falls by the founding affidavit.

Finding

15.	The application is defective. It should have attached the intended application for leave to appeal. Secondly the founding affidavit and the draft are at large, they are not in sync. There is no application before the court.

This is not a case for punitive costs.

Order

16.	It is accordingly ordered that the application be and is hereby struck off with costs.

Mbidzo, Muchadehama & Makoni 		- Applicant’s legal practitioners

Lovemore Madhuku Lawyers	-	respondent’s legal practitioners