Smart Kanochuruka & Hellen Munyoro v Fresh & Frozen Distributors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/414/13
HARARE, ON 3 SEPTEMBER 2013 &
CASE NO LC/REV/H/126/12
13 SEPTEMBER 2013
JUDGMENT NO LC/H/414/13
---------




IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/414/13

HARARE, ON 3 SEPTEMBER 2013 &		CASE NO LC/REV/H/126/12

13 SEPTEMBER 2013

In the Matter between

SMART KANOCHURUKA  				1st APPELLANT

And

HELLEN MUNYORO					2nd APPELLANT

Versus

FRESH & FROZEN DISTRIBUTORS		RESPONDENT

Before The Honourable L Hove :	Judge

For the Appellant	:	S Magabu (Trade Unionist)

For the Respondent:	G Chingoma (Legal Practitioner)

HOVE J,

Two preliminary points were raised in this matter. These were:

Whether or not the application before the court is fatally defective in its failure to comply with the rules, and

If the application is properly before me, whether or not the court has jurisdiction to hear the application.

Is the application fatally defective?

It was argued that there is no application before the court as the application is fatally defective in that whereas the rules of court require that brief facts and grounds on which the application for review is based be outlined in Form LC 4, in casu no brief facts and grounds for review were given. The space provided in form LC 4 was left blank. The result is no grounds of appeal and the brief facts were filed when the appeal was noted.

This, it was argued, made the appeal fatally defective, and even more so in that when the application was initially set down to be heard on 21 February 2013, President Ndewere E, (as she then was) had ordered the applicants to file proper grounds for review as is required by the rules of the court. A date was given when such grounds should be filed. The deadline was 27 February 2013. There was no attempt by the applicants to file the brief facts and the grounds upon which the review was being sought. Nothing was done to bring the application within the requirements of the court’s rules and also to comply with the order by the court.

The High Court and the Supreme Court have in the past held that failure to comply with the rule that brief grounds of appeal be filed as required by the rules of the High Court rendered the application for review fatally defective.

The case of Mlambo v City of Harare 2001 (2) ZLR 505 is authority to the effect that were the rule required the filing of a short and clear statement of grounds relied on to be filed and this is not done, the application is fatally defective.

The judge in that case stated that:

“This is not an idle requirement. It was inserted in the rules of the court so that both the respondent and the presiding judicial officer are clearly informed of the grounds. This is necessary in order to ensure that the respondent will be able to decide whether or not to oppose ….. deal adequately with the grounds spelt out. It also assists the presiding judicial officer in identifying the issues which need to be resolved. Often, in review applications, all sorts of grounds are lumped together in the body and the founding affidavit, making, it difficult for the presiding judicial officer to determine the grounds upon which the matter is to be reviewed. If, as in the present case, the grounds are based on bias and gross irregularity in the proceedings, then those grounds must be stated in the application … The consequence of that failure is that the matter is not properly before the court and the applicant should not be heard.”

That there are no grounds attached to the application in casu is common cause. The applicants’ representative however submitted that although the filed copy is blank where its supposed to have the brief facts and grounds for review, the copy that he had in his file was not blank it has the following inscribed in the relevant page;

See attached affidavit by the first applicant

See the dates on which the award was given by the applicants.

However, what is before the court is the filed copy. A file copy that was never issued with the court cannot be considered. It is not before the court and it was not availed to the other side.

In any case, even if one was to extend to the applicants an olive branch, and consider the file copy, it also has no grounds for review or the brief facts. It refers the court to an affidavit. It is not for the court to fish for grounds for review from an affidavit. These ought to have been stated on form LC 4. It is therefore not sufficient to put the grounds in an affidavit.

In the result, the applicants failed to comply with requirements of the rules of this court when they filed their application on 10 October 2010 since the application was filed without brief facts and the grounds. Further, they again failed to comply when they were given an opportunity to rectify the anomaly by the 27 February 2013. It is accordingly found that there is no valid application before the court.

Having found thus, it is no longer necessary to consider and decide on whether or not the court has jurisdiction to decide the matter. There is no matter before the court.

Accordingly, the preliminary point is upheld, the application is dismissed with no order as to costs.

HOVE J

JUDGE – LABOUR COURT

Dube Manikai & Hwacha, respondent’s legal practitioners