City of Harare v Onias Rusike and Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/360/14
HELD AT HARARE ON 9th MAY, 2014
CASE NO. LC/H/109/14
AND 20TH JUNE, 2014
JUDGMENT NO. LC/H/360/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/360/14

HELD AT HARARE ON 9th MAY, 2014   	   CASE NO. LC/H/109/14

AND 20TH JUNE, 2014

In the matter between:-

CITY OF HARARE 						APPLICANT

And

ONIAS RUSIKE 						1ST RESPONDENT

And

ARTWELL MASAKA						2ND RESPONDENT

Before the Honourable G. Mhuri, Judge

For Applicant	: Mr. C. Kwaramba (Legal Practitioner)

For Respondents: Mr. S. Banda (Legal Practitioner)

MHURI J.:

On the 7th February, 2014 Applicant filed a notice of appeal against an arbitral award issued on the 16th January, 2014.

Pending the determination of this appeal, Applicant filed an application for interim relief in terms of Section 92E(3) of the Labour Act [Chapter 28:01].

In its notice of opposition Respondent raised a point in limine to the effect that the application is fatally defective as it is not founded on any affidavit, that the application does not set out through a Draft Order the relief applicant is seeking.

Respondent referred to the case of

MBANJE V CHAPTER PROPERTIES (PVT) LTD AND OTHERS HH-131-11

in which MUTEMA J. held that

“…an application stands or falls on its founding affidavit.”

Applicant’s Legal Practitioner referred me to the case of

CITY OF HARARE V EBEN FRANSISCO LC/H/190/2014

in which this same point in limine was argued and dismissed.  While this Court is not bound by a fellow judge’s decision, the decision can be persuasive.

It is correct that the Rules of this Court Statutory Instrument 59 of 2006 do not state that applications must be accompanied by a founding affidavit, nor do they state that a draft order must be attached thereto.  It is however desirable in my view that affidavits and draft orders be filed in support of the applications filed so that the Court and the Respondent can assess the facts and evidence upon which the application is founded, and the relief being sought.

In my view, it will be on the basis of a founding affidavit that has been filed that the principle

“an application stands or falls on the averments made in the founding affidavit.”

will apply.

I have read the judgment and in particular the ruling on the point in limine raised in the case of

CITY OF HARARE V EBEN FRANCISCO supra.

Whilst I agree that the Labour Court is a creature of statute and is bound by the statutes that govern its operations, and that the Rules do not make affidavits a requirement, be they founding or supporting affidavits, I am not in agreement with the point that the applicable Rule for application of stay of execution is Rule 14.  Rule 14 refers to applications made in terms of Section 89 2(b) (c) and (d) of the Act and an application for stay of execution is not one such application.

The Rules being silent on the format to be followed in applications such as this one, I am not inclined to hold that the application is fatally defective as to warrant dismissal.

To that end, the point in limine is dismissed.

The Registrar is directed to set down the application for stay of execution for a hearing on the merits.

Mbidzo, Muchadehama and Makoni–Appellant’s Legal Practitioners

J. Mambara and Partners–Respondent’s Legal Practitioner