Elizabeth Masona v City of Harare

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/195/2016
HARARE, 17 FEBRUARY 2016
CASE NO.
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/195/2016

HARARE, 17 FEBRUARY 2016    		         	CASE NO. LC/H/977/13

AND 8 APRIL 2016

In the matter between:-

ELIZABETH MASONA				Appellant

And

CITY OF HARARE					Respondent

Before Honourable P. Muzofa, Judge

For Appellant		K. Masiyenyama (HMWU) Legal Officer

For Respondent		Ms A. Zvoutete  (Principal Legal Officer)

MUZOFA, J:

On the date of hearing of this appeal, the respondent raised two preliminary points.  The first preliminary issue was that the appellant’s heads of argument were filed out of the prescribed time frame.  The second issue was that the grounds of appeal did not raise questions of law and therefore improperly before the court.

Rule 19 of the Labour Court rules regulate the filing of heads of argument.  In terms of rule 19 1 (a) where an appellant or applicant is to be represented by a legal practitioner, the legal practitioner is required to file heads of argument within fourteen days days of receiving a notice of response.

In casu when the appeal was filed and the notice of response was filed the appellant was represented by Harare Municipal Workers Union.  Clearly at the time of service of the notice of response there was no legal practitioner representing the respondent.  At that time there was no obligation to file heads of argument.  However subrule (5) of the same rule provides that where a party is not represented by a legal practitioner and wishes to file heads of argument, these should be filed in terms of rule 19 (1) (a).  The import of that subrule is that the unrepresented litigant should comply with the fourteen day period within which to file heads of argument.

The appellant’s representative elected to file heads of argument.  It was not denied that the heads of argument were filed out of time.  No application for condonation for the late filing of the heads of argument was made.  Where the court has not been requested to condone a deviation from the rules it cannot just grant it, meru motu.  This is an appropriate case where the heads of argument should be expunged from the record.

The first preliminary point therefore succeeds.

The second issue relates to whether the grounds of appeal raise questions of law.

The issue is now settled.  A question of law has been defined and includes a gross misdirection on the facts see Muzuva v United Bottlers (Pvt) Ltd (1) ZLR (SC) 217.  This court’s role is to consider the grounds of appeal.  Where factual issues have been raised the court has to consider whether there was a gross misdirection on the referred facts.  The Court therefore does not consider the form of the ground of appeal but also the substance of the ground of appeal.

I will now consider the grounds of appeal.

The first ground of appeal was that the arbitrator failed to appreciate that the school Development Committee was audited and no shortfalls were detected.  In my view this was a factual issue.  There was no dispute as to whether this audit was conducted and the findings thereof.  Technically there is no issue for determination raised by the ground of appeal.  The ground of appeal therefore is improperly before the court.

The second and third grounds of appeal raise the issue on whether the respondent had the locus standi or jurisdiction as put by the appellant to order another audit to be conducted on the school Development Committee’s account.

The nub of the ground of appeal in my view is whether the school Development Committee is accountable to the respondent.  In other words whether the respondent exercises oversight powers on the School Development Committee.  I believe this is a question of law and parties should argue the matter on the second and third grounds of appeal.

In the result I make the following order.

The first preliminary point succeeds, the appellant’s heads of argument be and are hereby struck off.

The second preliminary point be and is hereby upheld in respect of the first ground of appeal, the first ground of appeal is struck off.

The matter is to be set down for hearing in respect of the second and third grounds of appeal.