Craster International v D MUZIRA & 11 OTHERS

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/98/2016
HARARE, 17 FEBRUARY 2016 &
CASE NO LC/H/626/2015
4 MARCH 2016
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/98/2016

HARARE, 17 FEBRUARY 2016 &			             CASE NO LC/H/626/2015

4 MARCH 2016

In the matter between

CRASTER INTERNATIONAL						APPELLANT

And

D MUZIRA & 11 OTHERS							RESPONDENTS

Before the Honourable P Muzofa J

For the Appellant	N Tshabangu (Trade Unionist)

For the Respondents    B Makururu (Legal Practitioner)

MUZOFA J:

Before the matter proceeded into the merits, a preliminary point was raised on behalf of the respondent. It was submitted that the appeal was filed out of the prescribed period and therefore improperly before the court.

For the respondent it was submitted that the appeal was against a determination of 27 November 2013. The appeal before the court was filed on 8 July 2015. The background to this case was given as follows:

The appellant and respondents had a labour dispute. The matter was eventually placed before the General Engineering Committee of the National Employment Council for the Engineering and Iron and Steel Industry “the committee”. On 27 November 2013 the Committee made an order that the respondents be reinstated without loss of salary or benefits and an order for the payment of damages in the alternative.

The appellant was not satisfied with the outcome. An appeal was made to the committee to ‘rescind’ its decision and another appeal filed with the Labour Court. In due course the appellant withdrew the appeal before the Labour Court in favour of proceedings before the Committee.

On 21 May 2015 the Committee made its determination, that it could not rescind its earlier decision and noted that either party if unsatisfied an appeal be made to this court.

It is only then that appellant filed this appeal on 21 July 2015.

In response the respondent said the appeal was not out of time. The appeal was against the determination of 21May 2015.

The rules of this court provide that an appeal should be noted within twenty one days from the date when the appellant had receipt of the determination.

In order for me to determine the issue I have to first decide which determination forms the basis of this appeal. The determination of 27 November 2013 relates to the merits of the case. The determination of 21 May 2015 was set out as follows:

“In a meeting of the GEC held on 20 May 2015 the parties concluded that since all the issues which were raise by the parties have been dealt with before, the committee was not in a position to rescind its earlier decisions. If any of the parties was not happy with the decision made they could appeal to the Labour Court.”

That decision reflected that parties raised issues that the committee had already made pronouncements on. In essence the committee was functus officio.

For the appellant to seek to stretch the essence of that order to be a basis of the current appeal is misplaced. If indeed the appellant was not satisfied with the order of 21 May 2015 the appeal would include the issue that the committee was wrong in finding that it was functus officio. Instead the appeal impugns the decision the Committee made on 27 November 2013.

Clearly the appeal is out of time. It was filed over a year later. No application for condonation for late noting of appeal and extension of time to file the appeal has been made. There was non-compliance with the rules of this court. The rules of court are there to regulate the practice and procedure of the Labour Court. Where a litigant has not complied with such rules, it is expected that an application for condonation precede the filing of the appeal. Condonation can only be granted when applied for. Forestry Commission v Moyo 1997 (1) ZLR 254 SC.

The preliminary point should succeed on that basis the appeal is improperly before the court.

The respondents’ legal representative asked for costs on an ordinary scale although in the heads of argument costs on a higher scale were requested. I will therefore grant costs on an ordinary scale.

Accordingly the following order is made:

The preliminary point is upheld. The appeal be and is hereby struck off the roll.

The respondents to pay costs.

Makururu & Partners, respondents’ legal practitioners