DR HOPE Pachena V Hubbard Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/609/2013
HARARE, 18 OCTOBER 2013 &
CASE NO LC/H/285/2012
22 NOVEMBER 2013
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/609/2013

HARARE, 18 OCTOBER 2013 &			CASE NO LC/H/285/2012

22 NOVEMBER 2013

In the matter between:-

DR HOPE PACHENA						APPLICANT

Versus

HUBBARD ZIMBABWE						RESPONDENT

Before the Honourable L Kudya	:	Judge

For the Applicant			M Gwisai (Legal Practitioner)

For the Respondent			R Makamure (Legal Practitioner)

KUDYA J:

This is an application for the condonation of the late filing of Heads of Argument by the Respondent in the main appeal hereinafter referred to as the (“employee”) in an appeal by the Appellant in the appeal and the Respondent in the instant application (hereinafter) referred to as the (“employer”).

On the date of argument of this application, the employee raised a point in limine that, the appeal in the main matter was improperly before the Court for reasons of ill citing the Appellant and the fact that, such an appeal is out of the prescribed time lines by five days and no condonation was sought to cure the defect.

In the result, the employee says she could not file heads on a defective notice of appeal. In any event, if the Court, is not persuaded that such are good grounds, she then applies that her eleventh month delay to file heads be condoned as it was occasioned by the view that, it was not necessary to file heads on a defective appeal which effectively is a nullity before the Court.

On the other hand, the employer argued that the defect in the appeal is of no moment in the instant application. It also argued that the discrepancy in the citation did not go to the root of the appeal. Further to that, it stated that even if the appeal was defective, the employee was still obliged to file her heads on the main appeal. Any points in limine, would then be addressed on the date of the actual hearing.

The employer also mentioned that, it had a right to appeal against the arbitral award, which it felt gave to the employee benefits which she did not deserve, as according to it she had voluntarily resigned from employment. It was adamant that the point in limine raised by the employee lacked merit and that it should be dismissed. It went further to state that, even on the merits of the condonation application, it was without foundation for seasoned counsel to wait for eleven months to seek to be allowed reprieve to file heads on the appeal.

Both counsels filed with the Court extensive arguments on the provisions of the law vis applications for condonation as well as the components of a proper appeal and the parties citations thereof. Since these submissions are apparent on the record, this Court will not seek to re-state these as that serves no meaningful purpose.

On the date of the hearing, the Applicant persisted in its point in limine about the impropriety of the appeal and the timeliness of the appeal going to the root of the appeal thus removing the obligation on the Applicant to file her heads in response on the main appeal. The Court ruled that the point in limine was well placed and allowed it. It further indicated that the full reasons would follow and these are they:

The response given by the employer demonstrates that it is alive to the fact that, the appeal it lodged with the Court was out of time and no condonation was sought in that respect. It also concedes that there is argument about the propriety of the citation of the Appellant but states that such could be cured by an amendment if need be.

It is clear from the above concessions that indeed the main appeal giving rise to the condonation of late filing of heads etc. is beset with irregularities which go to its root and until these are cured there would be no obligation on the employee to comply with the rules relating to filing of heads since the defects complained of have not been regularised. It is only after such regularisation that this Court is of the view that the merits of the heads can be addressed. The Court is therefore satisfied that, the point in limine on the application for condonation being with merit should be upheld.

IT IS ORDERED THAT:

The point in limine on the application for condonation of late filing of heads being with merit, it be and is hereby upheld.

The Appellant is to regularise issues around its appeal first before the issues of heads can be dealt with.

No order as to costs.

L KUDYA

JUDGE – LABOUR COURT

Matsikidze, Mucheche- Applicant’s Legal Practitioners

Kantor & Immerman- Respondent’s Legal Practitioners