Zimbabwe Red Cross Society and Alex Chamisa v Against Takura

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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 17 JANUARY 2024
JUDGMENT NO. LC/H/133/24
CASE NO. LC/H/908/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 17 JANUARY 2024

AND 25 MARCH 2024

IN THE MATTER BETWEEN:-

ZIMBABWE RED CROSS SOCIETY AND

ALEX CHAMISA AGAINST TAKURA

JUDGMENT NO. LC/H/133/24 CASE NO. LC/H/908/23

APPELLANT

FIRST RESPONDENT SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant	Ms. S. Mbauya

For Respondents	Mr. T.J. Mafongoya

MURASI J.,

This is an appeal against the decision filed in terms of section 128 (1) of the Labour Act, (Chapter 28:01) as amended by Act 11 of 2023. The sole ground of appeal is couched as follows:

“The Labour Officer erred in allowing claims for outstanding salaries for the 2nd Respondent on the strength of a bank statement which had some pages missing. In any event, the bank statement attached showed that 2nd Respondent was owed only $ 1 200- 00.”

Paragraph 2 of the prayer laid before the Court is as follows:

“Paragraph 3 of the Labour Officer’s ruling dated 7th of February 2023 be and is hereby substituted with the following:

‘The claim for salary arrears for 1st and 2nd Claimant partially succeeds. 1st Claimant shall be paid a sum of $135-00 and 2nd Respondent shall be paid a sum of $1200-00. These amounts shall be paid at the prevailing interbank rate on the date of payment’”

At the commencement of the proceedings, Ms Mbauya stated that Appellant had not been able to file its heads of argument as it had not timeously received the Respondents’ Notice of

Response. She further submitted that this was due to the fact that Respondents had applied for condonation of the late filing of the response which had been granted by the Court. However the filing of the responses did not give Appellant enough time to file heads of argument.

Mr. Mafongoya submitted that the matter should be dismissed as the Notice of Appeal was clearly defective. He stated that apart from not attaching the evidence relied upon, the statement itself in the Notice of Appeal was clearly wrong. In the current Notice of Appeal Alex Chamisa is the First Respondent whilst Against Takura is the Second Respondent. The Labour Officer made an order for the payment of $135-00 to Against Takura. However, in the present appeal, Appellant has reversed the order. There was no application for amendment of the Notice of Appeal. These are defective pleadings. I believe this issue if dispositive of the matter. In Tafadzwa Mushunje v Associated Newspaers of Zimbabwe (Pvt) Ltd SC 62/22, MAKONI JA had this to say:

“The court a quo was alive to the defective nature of the pleadings before it but nevertheless decided to hear the matter. The defects in the appellant’s declaration were in my view, fatal and rendered the proceedings a nullity. As was correctly submitted by Mr. Mpofu, there was no cause of action for which the jurisdiction of the court could be invoked. The court a quo should not have delved into the merits of the matter.”

It is also correct to make the observation that litigants should not draft Notices of Appeal which are not linked to the ultimate prayer. The prayer must have a bearing on the pleadings. In the present matter, the ground of appeal is disengaged from the prayer. The prayer has given Against Takura more money than ordered by the Labour Officer. As stated earlier in the judgment, no application to amend the pleadings was made before the Court. The Notice of Appeal is clearly defective. The result is that the appeal ought to be struck off the roll.

The Court makes the following order:

The appeal is hereby struck off the roll by reason of a defective Notice of Appeal.

Appellant to meets Respondents’ costs.

Coghlan, Welsh & Guest-	Appellant’s legal practitioners

Mafongoya and Matapura-	Respondents’ legal practitioners.