Harare Municipal Medical Aid Society v Rumbidzai Mandibaya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/179/24
HARARE, 31 JANUARY, 2024
CASE NO LC/H/710/23
19 APRIL 2024
HARARE MUNICIPAL MEDICAL AID SOCIETY
APPLICANT
RUMBIDZAI MANDIBAYA
RESPONDENT
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HARARE, 31 JANUARY, 2024
19 APRIL 2024

HARARE MUNICIPAL MEDICAL AID SOCIETY

RUMBIDZAI MANDIBAYA

Before the Honourable G. Musariri, Judge:

For Applicant - Mr W Chishiri, Attorney
For Respondent - Mr E Chigova, Unionist

MUSARIRI, J:

At the onset of oral argument in this Court respondent raised 2 (two) points in limine which applicant opposed.
The points shall be dealt with ad seriatim.

1. That the application was made on the wrong form:

Respondent’s heads of argument expatiated as follows;


“1. Respondent will submit that this chamber application is fatally defective for failure to use a correct form in terms of Rule 17(1) of this court’s rules.

2. For the avoidance of doubt Rule 17(1) of the Labour Court Rules 2017 says; A chamber application shall be in Form LC 12 duly completed and shall be supported by one or more affidavits setting out the facts upon which the applicant relies
Provided that, where a chamber application is to be served on an interested party, it shall be in Form LC 1 with appropriate modifications.

3. The form that has been used deprived the Respondent its right to oppose the application despite that Applicant served its application on Respondent.”

Rule 22 which deals with condonations requires that the application be in Form LC 1. Respondent invoked Rule 17(1) presumably because applicant termed the matter a chamber application for condonation. Rule 17(1) does not apply. Though applicant wrongly termed the matter as a chamber application that does not invalidate the application. Though it did not call upon respondent to file a response, it was served on the respondent who was able to file her response timeously. On that basis the failure to use the correct form is hereby condoned.

2. That Applicant is barred for failure to file its heads of argument timeously:

Applicant was served with the respondent’s Notice of Opposition on 4th October 2023. Respondent argued that applicant was then required to file its heads of argument within 10 (ten) days which expired on 16 October 2023. However, applicant filed its heads on 17th November 2023 and thus they are barred.
 Indeed Rule 26(1) obliged applicant to file its heads of argument within 10 days of receipt of the opposition. Applicant failed to comply timeously. It then filed the heads belatedly on 17 November 2023 without first seeking condonation from this Court. Applicant’s attorney made an oral application for condonation of the belated heads. The application was opposed. The sole basis of the application was that the attorney was on leave in October when the opposition was served. There was no explanation for the delay in applying for condonation up until the date of hearing this year. A whole three (3) months lapsed without seeking condonation. It is concluded that no satisfactory explanation was tendered for non-compliance with Rule 26(1) and according the application for condonation is declined.

Conclusion

The $2^{\text{nd}}$ point in limine stands to be upheld so that the applicant remains barred. The net result is that the application fails for want of prosecution.

Wherefore it is ordered that,

1. The application for condonation be and is hereby dismissed; and

2. Each party shall bear is own costs.

G. MUSARIRI
J-U-D-G-E
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