Fidelity Life Assurance v Kennedy Makumbe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/306/14
HELD AT HARARE 21ST MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/306/14

HELD AT HARARE 21ST MAY 2014 			CASE NO LC/H/903/13

& 6TH JUNE 2014

In the matter between:-

FIDELITY LIFE ASSURANCE				Appellant

And

KENNEDY MAKUMBE					Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		R Mutasa (Legal Practitioner)

For Respondent		T Mafongoya (Legal Practitioner)

MAXWELL, J:

At the hearing of this matter I upheld two points in limine and struck the matter off the roll.  These are the detailed reasons for that decision.

On 4 November 2013 appellant noted an appeal against the interim award of the Arbitrator P Bvumbe and the main award.  Though the grounds of appeal indicate that these awards were served on the appellant on 4 October 2013 they were actually served on different dates.  The first award which is marked “A” was received by appellant’s legal practitioners on 26 July 2012 having been issued on 21 July 2012.  The second award of 17 September 2013 marked “B” was the one served on 4 October 2013.

Respondent filed a notice of response on 11 November 2013.  In terms of Rule 19 of S.I. 59/2006 appellant was required to file heads of argument within 14 days of receipt of respondent’s response.  This,  applicant failed to do and only filed heads of argument on 13 February 2014 without seeking condonation.  On 5 March 2014 respondent filed heads of argument raising the issue of the non-timeous filing of heads of argument by appellant.  The heads of argument were served on appellant’s legal practitioners.  One would have expected that to provoke action from appellant.  Surprisingly nothing was done until the matter was set down for hearing.

At the hearing respondent raised two points in limine, firstly that the appeal against the interim award is improperly before the court as it was not filed within 21 days from the date of the award.  The second was that appellant is barred as the heads of argument  were not filed timeously.  In response appellant’s counsel pointed out that the first issue was not raised on the papers and was not part of the preliminary issues raised therein.  He prayed that it be dismissed as appellant is greatly prejudiced by it being raised on the hearing date.  Regarding the second issue it was submitted for the appellant that since the heads of argument for both parties are before the court, the court should exercise its discretion in favour of hearing the matter.  Appellant’s counsel’s submission ignores the fact that documents do not automatically become part of the record especially where specific and unambiguous time frames are stipulated in the rules.

In dealing with the first point in limine, it is my view that the manner in which the preamble to the grounds of appeal was drafted was meant to conceal the fact that the appeal to the interim award marked “A” was being made out of time.  The preamble states

“TAKE NOTICE THAT the appellant hereby notes an appeal against the interim award of the arbitrator P Bvumbe, and the main award, served on the appellant on 4th October 2013”

(Underlining for emphasis

There is no mention of the fact that the award marked “A” was received by appellant’s legal practitioners on 26 July 2012 as endorsed on the award.  The endorsement confirms the respondent’s allegation that the appeal against that award was not filed timeously as it should have been made 21 days from the 26 July 2012 in compliance with Rule 15 of S.I. 59/2006.  Even though the objection was raised by the respondent on the hearing date, I am of the view that appellant was aware of it and was taking a chance by lumping together the two awards.  In any event a point of law can be raised at any stage of the proceedings.  As stated in the head note of S v Prinsloo 1970 (3) SA 550.

“It would be unpardonable to ignore the proved fact of invalidity merely because it is not raised in the notice of appeal...”

For the above reasons I was satisfied that the first point in limine was well taken and I upheld it.

Turning to the second point in limine, as stated above, the non-compliance with the rules was pointed out in respondent’s heads of argument.  In my view appellant should have simply applied for condonation and not seek to argue that the Court should exercise its discretion and hear the matter while it is barred.  A defaulting party is barred by virtue of Rule 19 (3) (b) of S.I. 59 of 2006, and unless it is condoned, it has no right of audience except only in relation to an application for condonation.  In  the present case there is no such application and appellant is automatically barred.

As stated by Hlatswayo J (as he then was) in the case of Zimbabwe Open University v Dr O Mazombwe HH-43-2009 at page 4 of the cyclostyled judgment,

“... where an errant party has not applied for condonation in spite of its awareness of its non-compliance, it suffices for the objecting party merely to point out the non-compliance for the application to be struck off.”

Clearly the second point in limine has merit.  For the above reasons the matter was struck off the roll.

Dube, Manikai & Hwacha, appellant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners