CMED (PVT) LTD v Calisto Maniki

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/382/14
HELD AT HARARE 27TH MAY 2014
CASE NO
JUDGMENT NO LC/H/382/14
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/H/382/14

HELD AT HARARE 27TH MAY 2014			CASE NO LC/H/165/09

& 4TH JULY 2014

In the matter between:-

CMED (PVT) LTD					Applicant

And

CALISTO MANIKI					Respondent

Before The Honourable P Muzofa, Judge

For Applicant		T.K. Hove (Legal Practitioner)

For Respondent		Ms R.R. Mutindindi (Legal Practitioner)

MUZOFA, J:

This is an application for leave to appeal to the Supreme Court against a decision of this court dismissing the appeal by the applicant.  The application is made in terms of section 92 F (2) of the Labour Act [Chapter 28:01] (the Act) as read with Rule 36 of the Labour Court Rules (the rules) Statutory Instrument 59/2006.

At the commencement of the hearing the respondent raised a preliminary point that the applicant was barred in terms of Rule 19 (3) (b) of the rules.  The court dismissed the preliminary point and indicated the reasons will be incorporated in the main judgment.  These are they.  From the facts of this case it is not in dispute that applicant did not file heads of argument within the prescribed period as required by the rules.  In such circumstances the respondent had an option to apply for the dismissal of the application in terms of rule 19 (3) (a) of the rules.  This was no done.  The matter was therefore set down for hearing on 27 May 2014.  Both parties appeared and the applicant had filed heads of argument on 23 May 2014 without seeking for the upliftment of the bar.   In terms of the rules as submitted the applicant was already barred.   There is no provision in the rules that even where a litigant is barred there is no room to apply for the upliftment of the bar.  The court considered the overarching need to dispose labour matters based on the merits rather than on technicalities especially where the wrong has been cured.  In this case the heads of argument were already filed of record.  The very fact that the applicant appeared indicate the desire to prosecute the matter.  Accordingly the bar operating against the applicant was uplifted.

Now turning to the application for leave to appeal.  For an applicant to succeed in applications such as this one.  It must show that there are prospects of success on appeal and that the appeal raises questions of law.  The court would also consider the balance of convenience to either party so that ultimately the decision to grant or deny leave gives effect to the interests of justice in the main.

Prospects of Success

The decision whether to grant leave to appeal depends on the prospects of success SV McGown 1995 (2) ZLR 81 SC.  The applicant should not only show that the appeal is arguable but that there is substance in the argument.  Applicant’s grounds of appeal challenge the court’s findings on prescription.  The question of prescription was influenced by the court’s finding on when the dispute between the parties arose.  The applicant’s argument being that the dispute arose at the time the applicant discovered the offence.  The question for this court to determine is whether there is substance in this argument.  The court interrogated the issue in so far as section 94 (3) (a) and (b) of the Act.  It is my opinion that applicant’s argument has substance to the extent that another court in interpreting section 94 (3) (a) and (b) in relation to the facts of this case might come to a different conclusion.  On that basis alone this court is inclined to grant this application.  Otherwise the other grounds of appeal have no prospects of success.  The first ground of appeal is based on an order of the High Court that was not before the court, at the time of writing the judgment appealed against.  After having sight of the order when applicant produced it, the order did not confirm applicant’s submissions.  The second ground of appeal relates to the order by the arbitrator and applicant had not raised issues on it.

The third and fourth grounds of appeal raise the issue of prescription that has been addressed.  The fifth, sixth and seventh grounds of appeal challenge the factual findings made by this court.  These do not raise questions of law as envisaged in the Act.

In so far as the applicant challenges this court’s finding on the interpretation of section 94 (3) (a) and (b) this application should be granted.

Accordingly the application for leave to appeal to the Supreme Court be and is hereby granted.

Cost be costs in the cause.

T.K. Hove & Partners, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners