Francis Badzarigere v Grain Marketing Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/363/2014
HARARE, 09 & 20 JUNE 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/363/2014

HARARE, 09 & 20 JUNE 2014		                          CASE NO. LC/H/801/13

In the matter between:-

FRANCIS BADZARIGERE				Appellant

And

GRAIN MARKETING BOARD				Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr. K. Chirenje (Legal Practitioner)

For Respondent		Mr. S. Bhebhe (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the order of a “Committee” of employer representative and the Human Resources Manager.

The brief history of this matter is that Appellant was employed as a Depot Manager.  He was charged with four counts of misconduct that is

Fraud, forgery, corruption, falsification.

Theft.

Failure to disclose any interests in a company conducting business with GMB in which one has an interest or influence.

Any act of misconduct or omission inconsistent with the fulfillment of the express or implied conditions of one’s contract of employment.

He was found guilty and dismissed from employment.  He filed an internal appeal and the Appeals Committee dismissed it on the 16th of August 2013.  The Appellant then received the decision on 20 August 2013.  On the 8th of October the Appellant then lodged his appeal with the court.  He filed heads of argument on 25 April 2014.

On the 4th of June 2014 when the parties appeared before the court the Respondent raised three (3) points in limine that is that:

The appeal is out of time.

Appellant is barred for failure to file heads of argument in time.

The matter is before arbitrator Shawati.  Mr. Bhebhe therefore submitted that there was no appeal before this court and the Appellant could not talk of condonation when there is nothing before this court.

Mr. Chirenje who was representing the Appellant in response told the court that:

The Respondent ambushed them by raising the issue of late filing of heads of argument.  He said that the Respondent had not been prejudiced by this late filing of heads of argument and therefore the matter should be heard on the merits.

On the late filing of appeal the appellant stated that Labour matters should not be dealt with based on technicalities.  The Respondent therefore applied for condonation as there was an error in counting of days by the legal practitioner.

On the issue of lis pendens  the appellant stated that the matter before  the arbitrator was an interlocutory application which was made before the decision of the disciplinary committee.  Finally Mr. Chirenje submitted that the proceedings before Honourable Shawati could only be academic as they would not have any effect on the decision in this court.

The issue to be decided is whether there is any appeal before this court or not.

Rule 15(1) of the Labour Court Rules states that an appeal to this court must be made.

“Within twenty-one days from the day when the appellant receives the decision determination or direction or award.”

This appeal was made on the 8th of October that is well after the prescribed twenty-one days.  The legal practitioner says there was an error in the counting of days.  In the case of JENSEN VS ACAVALOS 1993 (1) ZLR 216 it was held that:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid.  This is to say it is a nullity.  It is not only bad but incurably bad and unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs –“

The Appellant has not applied for condonation in this case.  The Appellant has also failed to comply with the rules, hence thIS court finds that the appeal is a nullity.

Furthermore the Appellant has failed to comply with the rules by filing heads of argument (5) months after the response.  The Labour Court is a court of rules which should be complied with.  This issue of heads of argument was not raised in the heads of argument but failure to comply with the rule only goes to show how the legal practitioner has failed to exhibit due care in complying with rules of this court.  Such behavior by legal practitioners cannot be condoned by this court.

Rule 19 (3) (a) states that:

“Where heads of argument that are required to be lodged in terms of sub-rule (1) or (2) are not lodged on behalf of the applicant, appellant or respondent as the case may be, within the time specified in those provisions

The registrar shall nevertheless set down the application – unless at any time before the matter in set down, the party who is not in default applies to a President of the Court in chambers for the application, appeal or review to be dismissed or granted as the case may be

The defaulting party shall (if no application under paragraph (d) is made and granted) be barred and the Codes may deal with the matter on the merits.”

The specified times should be complied with.  The Appellant has also conceded that the application before the Arbitrator is just academic and that this court can order its withdrawal.

Having found that the Appellant failed to comply with rules of this court the court finds that there is no appeal before this court.

Accordingly the points in limine are upheld.  The Appeal is dismissed for lack of compliance with the rules.

CHIRENJE LEGAL PRACTITIONERS, Appellant’s legal practitioners

KANTOR & IMMERMAN, Respondent’s legal practitioners