Herbert Mupindu v Clover Leaf Motors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/725/14
HELD AT HARARE 10TH OCTOBER 2014
CASE NO
JUDGMENT NO LC/H/725/14
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/725/14

HELD AT HARARE 10TH OCTOBER 2014 		CASE NO LC/APP/H/327/14

& 24TH OCTOBER 2014

In the matter between:-

HERBERT MUPINDU				Appellant

And

CLOVER LEAF MOTORS				Respondent

Before The Honourable L Kudya, Judge

For Appellant		N Maboyi (Legal Practitioner)

For Respondent		Mr G Jakuosi (Legal Practitioner)

KUDYA, J:

This matter was set down as a rescission of judgment application.  This followed a judgment made in favour of the respondent in a case where the applicant had failed to comply with the rules that is where he had failed to file his heads of argument upon receipt of the respondent’s response.

The argument advanced by the applicant is that the court erroneously dismissed his appeal in his default of filing his heads timeously.  This is so because in his view respondent prematurely put in its response before being invited to do so by the Registrar thus effectively making the response invalid for non-compliance with the rules in that respect.

He argued that since the Registrar invited him to file his heads by letter of 25 June 2014 it therefore means that the default judgment was granted in error and had to be set aside.

In response the respondent maintained that it had not flouted the rules of Court by putting in the response early.  It also argued that the duty to file heads fell on the applicant upon his receipt of its response.  The legal practitioners for respondent however could not deny or confirm that indeed the Registrar had not invited his client to respond by issuing LC2 form.   To that end after oral submissions from both parties the court reserved its judgment but granted the parties leave to approach the Registrar with a view to ascertaining as a fact as to when the Registrar issued the notice of response calling on the respondent to respond to the appeal.

The result of the liaison with the Registrar was a retrieval of LC2 form duly issued by Registrar on 25 March 2014 and duly received by respondent from the hand of the Sheriff on 27 March 2014 as evidenced by the Clover Leaf Motors signature and stamp thereon.  This effectively put to rest the issue of when the respondent received LC2 and when the duty for it to file heads arose.  As per the LC2 referred to above it is apparent that the duty to file the response fell from 27 March 2014.

To that extent the response which was received on 8 April 2014 by the appellant was indeed regular and his duty to file heads fell there from that date.  The fact that there was a document from Registrar on 25 June 2014 inviting him to file heads therefore does not hold any water.  In any event s correctly stated by the respondent duty to file heads fell from date of receipt of the response.  Response was filed on 8 April 2014 and heads should have been filed 14 days from that day.  It is therefore clear that when the court handed down the judgment in terms of rule 19 (3) it was not under any error and that judgment was regular since the appellant had indeed fallen foul of the rules vis filing of heads timeously.  In the result, the application for rescission being without merit should fail with costs.

IT IS ORDERED THAT

Application for rescission of judgment being devoid of merit it be and is hereby dismissed with costs.

Mupindu Legal Practitioners, appellant’s legal practitioners

Dube, Manikai &  Hwacha, respondent’s legal practitioners