Leonard Chibanda & 23 Others v The Cotton Company of Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/45/13
HELD AT HARARE 18TH FEBRUARY 2013
CASE NO
JUDGMENT NO LC/H/45/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/45/13

HELD AT HARARE 18TH FEBRUARY 2013		CASE NO LC/H/636/10

LEONARD CHIBANDA					Appellant

& 23 OTHERS

THE COTTON COMPANY 					Respondent

OF ZIMBABWE LIMITED

Before The Honourable G Musariri, President

For Appellants		Ms R Mutindindi, Attorney

For Respondent		Mr C Maunga, Attorney

MUSARIRI, G:

At the commencement of the appeal before this Court, Respondent raised two points in limine.  The points were that;

Appellants were barred for failure to file their Heads of Argument timeously; and

The matter was res judicata.

I consider the first point as dispostive of the matter.  Rule 19 (1) of  the

Labour Court Rules S.I. 59/06 (hereafter called the Rules) provides that,

“(1)	where an applicant or appellant is to be represented by a legal practitioner at the hearing of the application, appeal or review, the legal practitioner shall -

Within fourteen days of receiving a notice of response to the application, appeal or review, lodge with the registrar heads of argument…”

What happened in casu?

A   Appellants filed their Notice Of Appeal on 24 November 2010.

B  Respondent filed its Notice of Response on 23 February 2011

C  Appellants then filed their Heads Of Argument on 13 July 2011.

In other words Appellants’ Heads were filed 4 ½   months after Respondent’s Response.  The period clearly exceeds the fourteen days’ limit set by Rule 19 (1) of the Rules.

What are the implications of the failure to comply with the Sub-Rule?

Rule 19 (3) provides that,

“(3)	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 period or at the time specified in those provisions-

…

The defaulting party shall … be barred and the Court may deal with the matter on the merits.”

Accordingly Appellants in casu are barred.  Their attorney reluctantly conceded that point.  She then sought to argue that since they filed belated Heads the matter should proceed.  She declaimed that labour matters should be determined on the merits rather than on than technicalities.  With respect, I consider the argument as misplaced.  The point taken by Respondent’s attorney relates to whether or not Appellants are properly before the Court.  Clearly they are not. They are in flagrant violation of the Court’s Rules.  The exhortation to determine matters on the merits applies to a situation where the parties are properly before the Court.  Clearly this matter is distinguishable from such situation.  Appellants were clearly out time.  They were barred.  They should have applied for the upliftment of the bar.  They did not do so.  Accordingly and regrettably they suffer the consequences.  Respondent prayed that the appeal be dismissed.  Appellants, being barred, are effectively in default.  I will therefore determine the matter on that basis.

Wherefore it is ordered that,

The appeal is hereby dismissed for want of prosecution; and

Each party shall bear its own costs.

G MUSARIRI

PRESIDENT