Priority Project Consultancy (Pvt) Ltd v Rumbidzai N Baru & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/379/2016
HARARE, 18 MAY 2016 &
10 JUNE 2016
CASE NO LC/H/907/2015
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/379/2016

HARARE, 18 MAY 2016 &					         CASE NO LC/H/907/2015

10 JUNE 2016

In the matter between

PRIORITY PROJECT CONSULTANCY 				APPELLANT

(PVT) LTD

Versus

RUMBIDZAI N BARU						     1ST RESPONDENT

And

PETER CHISAMBIRO						    2ND RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant     S Chuma  (Admin Manager)

For the Respondent  E Msona  (Trade Unionist)

MUCHAWA J:

This is an appeal against an arbitral award which found that the respondents were owed arrear salaries and cash in lieu of leave as follows:

Rumbidzai N Baru		$12 567-00

Peter Chisambiro			$  8 260-00

The arbitral award was handed down on 26 August 2015.

The appellant proceeded to file its appeal to this court on 14 October 2015.

In the appeal before me the grounds of appeal are stated as follows:

The arbitrator misdirected self as to the facts so much as to amount to a misdirection.

Award is defective for want of proper citation.

The respondents raised two points in limine in their heads of argument as follows:

That the appeal was lodged out of time and is therefore improperly before me as no condonation was sought.

That the notice of appeal wrongly cited one Fungai Kamhunga whom the respondents have no knowledge of.

I reserved my ruling on the points in limine. This is it:

Whether the appeal was filed out of time and effect thereof

It is the respondents’ case that the arbitral award was handed down on the 26th of August 2015 and they delivered a copy to the appellant’s chosen representative on the same day. The appeal which should have been filed within twenty one days of the 26th of August was filed some two weeks later on the 14th of October.

The appellant submitted that they only received the arbitral award on the 23rd September 2015 and they have no knowledge of the person who affixed a signature to the arbitral award indicating that it was received on the 26th August 2015 at 1.13 p.m.

The record shows that the appellant was being economic with the truth as that same signature they are disowning appears on almost all the payment acknowledgement forms where the person signs on behalf of the appellant. It also appears on some cheque/cash requisition forms.

Clearly, therefore, the appellant received the arbitral award on the 26th of August 2015 as alleged by the respondents. The appeal was therefore some fourteen days late in terms of the requirements of Rule 15 (1) of the Labour Court Rules Statutory Instrument 59 of 2006.

In the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (SC) it was held that where an application for review is not brought within the times specified in the Rules, an application for condonation must be sought. Where there is no application for condonation made, then the matter is not properly before the court.

I find similarly that this appeal is not properly before me.

Notice of appeal cited an unknown respondent

The notice of appeal on record in Form LC3 shows that the respondent is cited as “Fungai Kamhunga”whose address is ZBS 2251 Rusape.

The respondents, who attended the hearing, filed a notice of response and heads of argument are Rumbidzai N Baru and Peter Chisambiro.

The appellant’s Mr Chuma once again tried to hide behind a finger by arguing that the notice appeal correctly cited the two respondents hence their response and attendance at court.

When I requested to have sight of the appellant’s notice of appeal it was clear that it too originally cited one Fungai Kamhunga as a respondent but this was subsequently cancelled out and the names of the respondents were inserted hence their filing of a response and attendance to this matter.

The question is whether it was competent for the appellant to subsequently correct its notice of appeal after it had been issued out.

I do not think so. Once a notice of appeal is issued out by the court, it forms pleadings in terms of the record before the court. The parties cannot willy nilly alter such pleadings or amend them without the leave of the court. The court will then exercise its discretion as to whether to allow the amendment. In this case, it could have been easier to withdraw the appeal and file a correct one since there were no further papers yet filed. UDC Ltd v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (HC).

The amendment by the appellant is therefore of no consequence. The respondent remains as Fungai Kamhunga.

Both points in limine are consequently upheld.

The Merits

In any event when we proceeded to hear the appeal on the merits the court put it to the appellant that his grounds of appeal were not a good model of clarity.

The authoirs Herbstein and Van Winsen in The Civil Practice of the High Court of South Africa 5th ed volume 2 at p 1158 state:

“It has been held that the grounds of appeal … must be clearly and succinctly set out in clear and unambiguous terms so as to enable the court and the respondent to be fully informed of the case which the applicant seeks to make out which the respondent is to meet in opposing …”

It was held in Songono v Minister of Law and Order 1996 (4) SA 384 E at 385 that where grounds of appeal are unclear, they are fatally defective and must be dismissed.

The respondent and the court are unclear as to the alleged misdirection of the arbitrator and the lack of proper citation.

On the merits the appeal is dismissed as it is fatally defective.

Accordingly,

The points in limine are upheld and the appeal is struck off the roll; and

On the merits the appeal is dismissed.