WHY Not/lofombo BUS Company V Emmerson Mukambwa AND ANOR

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/348/2014
HARARE, 16 MAY 2014
CASE NO. LC/H/348/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/348/2014

HARARE , 16 MAY 2014	                    			CASE NO. LC/ H/460/2013

AND 20 JUNE 2014

In the matter between

WHY NOT/LOFOMBO BUS COMPANY 			Applicant

And

EMMERSON MUKAMBWA AND ANOR			Respondent

Before The Honourable P. Muzofa, Judge

For Applicant 	-	Mr. Mupwanyiwa  (Legal Practitioner)

For Respondent	-	L.P.  Danda (Trade Unionist)

MUZOFA J:

This is an opposed application for leave to appeal to the Supreme Court against the decision of this Court.  The Applicant who was the Respondent in the main matter failed to file Heads of Argument within the prescribed time in terms of Rule 19 (3) (2) (a) (ii) of the Labour Court Rules.  The applicant was barred in terms of Rule 19 (3) (b) of the rules and an order was issued in favour of the Respondent.

The grounds of appeal being in the following terms,

The Court erred at law in upholding the Respondents’ appeal whose components included issues that were not part of the 	original claim and not falling within the terms of the submission to arbitration.

The Court erred at law in entertaining the appeal by the Respondents against the arbitrator which appeal was not on a question of law as required in terms of the law.

The Respondent opposed the application on the basis that the appeal that was before this court raised questions of law being failure to pay wages.

It is settled law that in an application such as the one before this Court an applicant should show that there are prospects of success, see S v Mutasa 1988 (2) ZLR (4) SC.  In terms of Section 92F of the Labour Act the appeal should be on a question of law.

Prospects of Success

The Applicant appeared before this Court, being the Respondent.  Applicant was enjoined to file heads of argument in terms of Rule (3) (2) (a) (ii) these were not filed and applicant was automatically barred.  The court proceeded without hearing the Respondent and in the absence of Respondent’s heads of argument.  The grounds of appeal do not address this critical aspect of the proceedings.  I believe it was as a result of the bar operating against Respondent that led to the Court issuing an order against the Respondent.  The Applicant has failed to address a critical aspect in the proceedings. Turning a blind eye to the bar in my view cannot be allowed to be beneficial to the Applicant.  Applicant was at fault and was penalised albeit in terms of the rules.  By virtue of this fundamental omission I donot believe the Applicant has prospects of success.  On this basis alone the application cannot succeed.

Accordingly the application be and is hereby dismissed.

No order as to costs.

MUFADZA & ASSOCIATES, Applicant’s legal practitioners