Leonard Chibanda & 13 Others v Cotton Company of Zimbabwe Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/615/2014
HARARE, 08 & 26 SEPTEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/615/2014

HARARE, 08 & 26 SEPTEMBER 2014		     	     CASE NO. LC/H/636/10

In the matter between:-

LEONARD CHIBANDA & 13 OTHERS					Applicants

And

COTTON COMPANY OF ZIMBABWE LTD				Respondent

Before Honourable L. Kudya, Judge

For Applicants		-	Mr. W. Chivaura (Legal Practitioner)

For Respondent		-	Mr. R. Matsikidze (Legal Practitioner)

KUDYA J:

This is an application for leave to appeal to the Supreme Court against an order granted by this court on 4 October 2013.  In that order the court ruled that both parties flouted the time lines for the filing of their heads of argument.

In the interests of justice the court invoked rule 26 and condoned the flouting of the time lines and consequently ordered that the matter be set down and be argued on the merits.  Dissatisfied by this order the applicant employer has now applied to this court to grant it leave to appeal to the Supreme Court.  The basis for the application is that the Labour Court erred to invoke rule 26 mero motu and to order that the matter now be heard on the merits.  Its main argument is that there was no way both parties could have been said to have been in default of the time lines at the same time.  This is so because the duty to put in heads by the respondents only fell upon receipt of the appellant’s heads.

To that extent it was the applicant’s view that respondent employees should therefore have remained barred for failing to put in heads on time and until and only when they would have successfully applied for the upliftment of the bar and would the court then have been at liberty to make the kind of order as the one it made on the matter.

In response to the application the respondent argued that the applicants did not make out a good case for leave taking into account the fact that the order of 4 October 2013 made it clear that both parties were in breach of the timelines and for finality to litigation the court went ahead and ordered that the matter could now be set down on the merits of the matter.

Both parties cited at length authorities setting out the test to be applied in such matters. Since these are apparent on the face of the parties’ heads of arguments the authorities do not deserve any re-stating.  The only critical concern in the instant matter is whether the applicant has laid out a clear point of law which the Supreme has to deal with and which is merited to that extent.

A reading or rule 26 shows that the court is empowered to depart from rules of procedure if their slavish following is bound to lead to injustices.  It is accepted that in general either party has to apply for the court to grant it any prayer.  What is however apparent from this matter as also confirmed by the 4 October 2013 judgment is that the manner in which this case was proceeding was clear testimony that the parties were delaying the ends of justice by engaging and arguing about a number of procedural niceties hence the fact that the matter had found itself before more than one judge of the same court yet without finality on the merits.  It is on that basis that the court ruled that it was imperative that the matter be concluded on the merits and that could only be achieved if the parties were removed from “the rule argument game” which the record gives testimony to.  It is thus the court’s considered view that there is no point of law which the Supreme Court is being be called upon to decide on, in particular where the order given by this court was merely an interlocutory order and the main matter has not yet been disposed of.

The court is satisfied that no good case for leave has been made out by the applicant and the application should accordingly fail.

IT IS ORDERED THAT

Application for leave to appeal being without substance it be and is hereby dismissed.

Each party to bear own costs.

MAUNGA MAANDA & ASSOCIATES, Applicants’ legal practitioners

MATSIKIDZE& MUCHECHE, Respondent’s legal practitioners