Chrispan Mashura & 2 Ors v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/610/2016
HARARE, 7 JUNE 2016 &
7 OCTOBER 2016
CASE NO LC/H/APP/775/2015
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/610/2016

HARARE, 7 JUNE 2016 &					CASE NO LC/H/APP/775/2015

7 OCTOBER 2016

In the matter between

CHRISPEN MASHURA 						1ST APPLICANT

and

ELLIOT MAPFUMO						2ND APPLICANT

and

ALEXANDER KAMUDZANDU					3RD APPLICANT

versus

CITY OF HARARE							RESPONDENT

Before the Honourable B S Chidziva J

For the Applicants	T Chivave (Legal Practitioner)

For the Respondent      Ms A Zvoutete  (Principal Legal Officer)

CHIDZIVA J:

This is an application for reinstatement for reinstatement of application for condonation of late noting of appeal.

The history of this matter is that on 12 June 2015 Mrs Justice KUDYA struck off the roll on application for condonation of the late noting of an appeal by the applicants under Case No LC/H/APP/1008/14. The application for condonation was struck off because the applicants had filed the application for condonation of the late noting of appeal whilst there was pending application to amend that appeal. This application to amend the appeal has since been withdrawn as shown by Annexture “C”. The applicants have now brought this application for reinstatement of application for condonation for late noting of appeal.

The applicants have submitted that this application for late noting of appeal is being made in terms of Practice Direction 3/2013 as read together with Rule 26 of the Labour Court Rules. They further submitted that the arbitrator erred by isolating the applicant’s claim yet from the evidence led it was clear that their claims were similar to that of Miriam Ratisai whose claim was successful. The applicants have indicated that they are now in possession of the appointment letters and an application to introduce further evidence in terms of section 90 A of the Labour Act [Cap 28:01] as read with Rule 26 of the Labour Court Rules will be made.

The respondents in response have raised a point in limine to the effect that the applicants have jumped the gun by seeking to introduce new evidence on appeal. At the time of arbitration proceedings whose arbitral award is the subject of these proceedings, the applicant failed to produce the evidence they have referred to. The respondents have argued that the applicants ought to raise a new grievance following the grievance handling procedure instead of introducing new evidence on appeal. It was further argued that the applicants ought to exhaust internal remedies before approaching the court. The arbitrator correctly arrived at the findings he did with the evidence that was before him.

This court reserved the judgment during the hearing. It is now dealing with the point in limine at the same time with the merits of the case.

The applicants are not seeking to introduce new evidence at the stage of this application. The applicants are only applying for the reinstatement of the application for condonation of late filing of appeal. The issue of introduction of fresh evidence can only be dealt with at the appeal stage if the application for reinstatement succeeds.

To that end therefore the point in limine is dismissed for lack of merit.

Coming onto the merits of this application Practice Direction 2/2013 in section states that:

“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 (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.”

This provision clearly states that for a matter to be reinstated the defect complained of should have been rectified. The defect complained of as stated by Justice KUDYA in her judgment under case No LC/H/402/15 is as follows:

“Before the merits of the condonation application could be entertained the respondent raised a point in limine that the condondation application is improperly before the court because it was filed at a time when there was the pending amendment application on the same matter…..”

This is the issue to be decided. On 12 June 2015 Justice L KUDYA struck off the roll on application for condonation of the late noting of an appeal by the applicants under Case No LC/H/APP/1008/14. The application to amend was eventually withdrawn. This therefore means that the defect complained of has been rectified.

The requirement under Practice Direction 3/2013 has been satisfied. A clear interpretation of Practice Direction 3/2013 shows that once the defect complained of has been rectified then the judge may reinstate the matter.

In view of the foregoing it is my opinion that the defect was rectified after the withdrawal of the application for amendment of the appeal.

To that end therefore the application succeeds and I order as follows:

The application for reinstatement of the application for condonation of late noting of appeal Case No LC/H/APP/1008/14 be and is hereby granted.

The Registrar is directed to set down the application for hearing.

The respondent shall pay costs.

J Mambara & Partners, applicants’ legal practitioner