Tariro Takawira v NEC for Zimbabwe Schools Development Association/Committees Appeals Committee & SDA Dudley Hall Primary School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/53/22
HARARE, 14 FEBRUARY, 2022 CASE NO. LC/H/36/20
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IN THE LABOUR COURT OF ZIMBABWE 	        JUDGMENT NO. LC/H/53/22

HARARE, 14 FEBRUARY, 2022  		        CASE NO.LC/H/36/20

AND  11 MARCH,2022		                           .XREF: LC/H/APP/197/20

In the matter between:

TARIRO TAKAWIRA		                                            APPELLANT

Versus

NEC FOR ZIMBABWE SCHOOLS DEVELOPMENT                 1ST RESPONDENT

ASSOCIATION/COMMITTEES APPEALS COMMITTEE

SDA DUDLEY HALL PRIMARY SCHOOL                               2ND RESPONDENT

Before The Honourable Kudya J

For the Appellant			: Mr Kupara (unionist)

For the 1st  Respondent	          : Mr Chimedza (Appeals Committee Secretary)

For the 2nd Respondent               : Mr Chako (Legal Practitioner)

KUDYA J:

At the onset of this appeal the appellant employee sought to amend his relief which he felt he had worked badly.  He also sought to have the court impugn what he

styled the belatedly filed Heads of Argument by the respondent employer.  It is only these two issues which are addressed by this judgment.

In reaction to the points the employer indicated that it had put the employee on notice to the effect that it intended to raise objections about the irregular prayer and the delayed Heads of Argument.  It stated that it was perplexed by the applicant’s raising of these issues first.  Being that as it was the Court had to rule on the submissions because they were now before it.  Each of the points is addressed below:

Ammendment of Relief Sought

In this regard the employee relied on a long string of South African cases including the constitutional case of Madzimba Muto v Ladner Burke 1968 (4) SA 84.  His main argument was that since the Labour Court is a court of equity it could indulge him and allow him to amend his prayer.

In reaction to that the employer was adamant that a defective prayer could not be amended.  It relied on a number of cases including   John v  Delta Beverages Ltd SC 40-17 and Tamanikwa v ZIMDEF  SC-73-17.

In his right of final audience the employer reasoned that cases of John (Supra) and ZIMDEF (Supra) were Supreme Court case applying Supreme Court rules.  He stated that such had to be distinguishable and persisted that on the basis of equityk his amendment prayer be allowed.  It is settled law that a defective notice of appeal is a nullity See Bande v National Foods Ltd SC-11-21.  It matters not whether the defect is arising from improper appeal grounds from a defective prayer.  Such defects cannot be cured by the equity label. Such defects mean there is no appeal before the Court so there is nothing to consequently amend. See Mcfoy v United Africa Company 1961(3) ALLER 1169.  In the ultimate the court is satisfied that no good case for grant of the first point has been made out.  The point should therefore fail.

Heads of Arguments

As regards this point the employer explained to the Court’s satisfaction that it filed its Head of Argument on the last day of the dies inducicie so no issues thus arise from that.  Having concluded that the appeal is bad at law on account of defective prayer it remains for this court to strike it off.

IT IS ORDEED THAT

The point in limine on amending the prayer being devoid of merit it be and is hereby dismissed.  Appeal is be and is hereby struck off the roll with each party bearing own costs.

Mushangwe and Company – 2ND Respondent’s Legal Practitioners’

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