T M Supermarket v Kelvin Motsi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/169/16
HELD AT HARARE 4 MARCH 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/169/16

HELD AT HARARE 4 MARCH 2016				CASE NO LC/H/270/14

& 18 MARCH 2016

In the matter between:

T M SUPERMARKET				Appellant

And

KELVIN MOTSI					Respondent

Before The Honourable F C Maxwell, Judge

For Appellant			Mr B Peresuh (Legal Practitioner)

For Respondent		Mr A F Majachani (Legal Practitioner)

MAXWELL, J:

At the hearing of this matter, counsel for respondent made an oral application for condonation of late filing of the notice of response and late service of the notice of response on the appellant.  I dismissed the application and gave the following reasons;

Respondent was a self actor at the inception of this matter.  He got legal representation in January 2016.

The notice of response was filed out of time.  Counsel for respondent indicated that on realising that the notice of response had not been served on the appellant, they caused it to be served on 21 January 2016 and the acknowledgment of service shows that it was received at 1600 hours.

On 26 January 2016 appellant’s heads of argument were filed pointing out that respondent’s notice of response was filed out of time.  The heads of argument were received by respondent’s counsel on 27 January 2016.

On 29 January 2016 respondent’s heads of argument were filed.  Among other things, they responded to the issue of the notice of response being out of time.

According to the heads of argument, the notice of response was filed on 4 November 2015 yet the copy on record has a stamp and the date of receipt by Registrar written in long hand says 4 August 2014.

There are issues that cannot be properly raised in heads of argument, that need to be attested to.  An application cannot be brought through heads of argument.

There is no explanation tendered as to why a written application for condonation was not filed from January 2016 to date, a period close to two months.

I am not satisfied that a reasonable explanation was given for the non-compliance with the rules of this court.  The notice of response is struck out and the matter will proceed unopposed.

Consequently I order as follows;

The appeal be and is hereby upheld.

The arbitral award dated 5 March 2014 be and is hereby set aside,

Honey & Blackenberg, appellant’s legal practitioners

Mberi  Chinwamukombe Legal Practitioners, respondent’s legal practitioners