Buhera Rural District Council V Zimbabwe Rural District Councils Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/232/2023
HARARE 22 MAY 2023
CASE NO LC/H/25/23
28 JULY2023
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IN THE LABOUR COURT OF ZIMBABWE

HARARE  22 MAY 2023

28 JULY2023

JUDGMENT NO LC/H/232/2023 CASE NO LC/H/25/23

BUHERA RURAL DISTRICT COUNCIL	APPELLANT

ZIMBABWE RURAL DISTRICT COUNCILS WORKERS UNION	RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	Mr Zviuya Attorney

For Respondent	Mr Nyamucherera Attorney

MUSARIRI, J:

At the onset of oral argument in this court, respondent raised two (2) points in limine which appellant opposed. The points shall be dealt with ad seriatim.

Whether the matter is improperly before the court contrary to Practice Direction No 3 of 2013:

This point was not raised in respondent’s papers thus ambushing appellant at the time when arguments commenced. Raising points in limine at the eleventh hour is reprehensible as it does not afford the other party sufficient time to consider them and respond appropriately. I only allowed respondent to raise the point because appellant graciously agreed to proceed after a brief adjournment. Attorneys are hereby reminded to stick to basic principles of fairness in dealing with

each other in the conduct of their cases. However as in duty-bound, the court will proceed to consider and determine the point.

The point is based upon paragraph 5 of the Practice Direction issued on the 29th November 2013 by the then Chief Justice now late G CHIDYAUSIKU, which reads

“5.Where a matter has been struck off the roll for failure by a party to abide by the rules of the court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a Judge may on application and for good cause shown, reinstate the matter, on such terms as he deems fit.”

It is common cause that appellant’s earlier appeal (under LC/H/284/22) against the determination in casu was struck off the roll by the Court for failure to file the record of proceedings conducted by the Designated Agent. Such record is required in terms of Rule 19(1) (b) of the Labour Court Rule S.I. 150/17. Respondent argued that appellant’s remedy provided by the Practice Direction would be an application for reinstatement as envisaged by the proviso to paragraph 5 of the Direction. Instead appellant applied for condonation of a late appeal which was granted by this court on 16 January 2023. Appellant filed the present appeal (LC/H/67/23) on 27 March 2023. However respondent argues that the appeal is improperly before the court for failure to comply with aforesaid Practice Direction.

The Practice Direction (2013) has been overtaken by the present Labour Court Rules (2017). The applicable law is now Rule 35 which provides that:

“(2) Where a court either postpones a matter sine die or removes it from the roll the court shall direct what a party must do and the time frames by which the direction must be complied with.

(3) Where a directive has not been given in terms of Rule 2, and a matter postponed sine die or removed the roll is not set down within three (3) months from the date on which it was postponed sine die such matter shall be regarded as abandoned and the Registrar shall advise the parties accordingly.”

The first appeal was struck off the roll (same as removed from the roll), was not re-set down within three months and so it was abandoned. The matter can only be revived through an application for reinstatement in terms of Rule 36. Alternatively appellant could apply for condonation of a fresh appeal. Appellant chose the alternative option of a fresh appeal. It was right to do so as shown by the case of

Bindura v Mugogo 2015 (2) ZLR 237(S) per GUVAVA JA at p240.

“The appeal having been found to be fatally defective, cannot be reinstated after being struck off the roll. The applicant’s remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal ….”

The appellant in casu applied for condonation which was granted thus enabling it to file a fresh appeal which is the present matter.

Whether the grounds of appeal raise matters for review rather than appeal:

Respondent argued that all the nine (9) grounds of appeal raise matters for review. Such matters should have been raised by way of review rather than the present appeal. The authority relied on was section 92 EE of the Labour Act [Chapter 28:01] hereafter called the Act, as read with Rule 20 of this Court’s Rules. Appellant’s attorney, correctly in my view, rightly conceded that the 1st, 4th and 5th grounds of appeal are invalid as they are based on grounds for review. However, he argued that the remaining grounds raise factual and legal issues amenable to an appeal. Respondent countered that those grounds raising factual issues are invalid. He did not cite any authority for that argument.

Section 92E of the Act provides appeals to this court thus:

“(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.”(The underlining is for my emphasis).

The term “merits” of a decision is not qualified or restricted in anyway. It is broad enough to cover the both factual and legal issues. Where the legislature intends to restrict appeals to points of law it says so explicitly as appears in s 92F (1) which allows appeals to the Supreme Court “on a question of law only.” Absent such restriction, on appeal to this court an appellant can range beyond questions of law.

Conclusion

The first point in limine lacks merit and ought to be dismissed. The second point in limine

has some merit and should be partially allowed.

Wherefore it is ordered that,

The respondent’s 1st point in limine be and is hereby dismissed;

The Respondent’s 2nd point in limine be and is hereby partially allowed so that Appellant’s 1st, 4th and 5th grounds of appeal are struck off the record; and

The Registrar of this Court shall re-set the matter for hearing on the earliest available date.

G MUSARIRI J-U-D-G-E