Gilfern Moyo v Allied Timbers Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/573/2016
HARARE, 21 JULY 2016 &
CASE NO LC/H/APP/367/2016
23 SEPTEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/573/2016

HARARE, 21 JULY 2016 &				CASE NO LC/H/APP/367/2016

23 SEPTEMBER 2016

In the matter between

GILFERN MOYO								APPLICANT

And

ALLIED TIMBERS ZIMBABWE						RESPONDENT

Before the Honourable F C Maxwell J

For the Applicant	B Julajula (Legal Practitioner)

For the Respondent     N M Phiri (Legal Practitioner)

MAXWELL J:

At the hearing of this matter counsel for the respondent raised two points in limine which are the subject of this judgment. The applicant is seeking condonation of late noting of appeal and the extension of time within which to note an appeal. The founding affidavit is deposed to by the applicant’s wife. She states that she was authorised by a power of attorney dated 25 February 2016. The points in limine are:

The applicant improperly introduces new issues in heads of argument.

Counsel for the respondent stated that the founding affidavit is defective as it does not make any reference to the explanation for delay and the applicant’s prospects of success. On that basis, it was submitted, the application fails to establish a good cause for condonation. In response counsel for the applicant argued that the issues raised are points of law which can be raised at any time in the pleadings. He further argued that this court is mainly concerned with doing justice and fairness between the parties. Counsel for the applicant stated that this court is an informal court in terms of rule 12 of SI 59/06 and should not be a slave to its own rules. Counsel made reference to the case of Dalny Mine v Banda 1999 (1) ZLR 220 that labour matters must not be decided on purely technical points at the expense of real justice between the parties.

It is trite that an application stands or falls on its founding affidavit. See Austerlands (Pvt) Ltd v Trade & Investment Bank & Ors SC 92-05. Counsel for the applicant’s position seems to be that the elements to be considered in granting condonation can be raised at any time. No legal authority was submitted for that position. In Rose Ellen Mbanje v Chater Properties & Ors HH 131-11 neither the founding affidavit nor certificate of urgency contained an explanation for the non-timeous action. The court held that to attempt to smuggle in an explanation for the delay in an answering affidavit is non-suited. I am therefore not convinced that an omission to address prospects of success in the founding affidavit can be rectified at any time. There is therefore merit in the first point in limine and I uphold it.

The founding affidavit is defective as the deponent cannot positively swear to the facts that appear therein

As stated before the founding affidavit was deposed to by the applicant’s wife. Paragraph 14 thereof addresses issues concerning a disciplinary hearing. The deponent narrates how the matter ensued with regard to the initial hearing. Counsel for the respondent objected on the basis that the information in the paragraphs under 14 are facts not to the deponent’s knowledge. Counsel for the respondent stated that the deponent cannot positively swear to what happened when the parties appeared before a conciliator which information she stated in paragraphs 12 and 13 of the founding affidavit.

In response counsel for the applicant stated that the deponent was empowered by a power of attorney. He further stated that all correspondence at internal tribunals were passed through the deponent and therefore she has personal knowledge of the facts.  Counsel for the applicant however conceded that the deponent did not attend the tribunal. He however was of the view that on the authority of Chiadzwa  v Paulkner 1991 (2) ZLR 33 the deponent can be classified under those people who can swear positively to the facts. Counsel for respondent disagreed as he stated that the information deponent stated is hearsay. He stated that the deponent’s husband, the applicant, did not attend the disciplinary hearing therefore the deponent is swearing to what someone else, not the applicant, told her.

The special power of attorney was signed on 25 February 2016 in the United Kingdom. The record of proceedings shows that the applicant was granted vacation leave from 23 September 2015 to 26 October 2015. Thereafter he did not return to work. It is interesting to note that when the applicant became aware of the disciplinary hearing’s verdict, he personally noted an appeal. Pages 29 to 33 of the record has his appeal which he signed in the United Kingdom. When he received an invitation to attend the appeal hearing, he personally wrote excusing himself and indicating that his representative of choice would attend on his behalf. The founding affidavit is silent on why it was not possible for the applicant to depose to the founding affidavit in the United Kingdom. Nothing has been stated as precluding him from doing so.

Whilst the relationship between husband and wife is respected, in my view that respect does not go to the extent that either can swear to what happens in the other’ s workplace unless they are employed in the same company. I am of the view that to qualify for classification in the group of people who can positively swear to the facts as stated in Chiadzwa v Panlkner (supra) one needs to be in a position of personally knowing the facts attested to. I find that the deponent had no way of personally knowing what transpired at her husband’s workplace. In Setha Seven Dube v Joe Solly Helfer & Ors HB 4-07 NDOU J (as he then was) commented on a legal practitioner deposing to a founding affidavit on behalf of his client. He stated:

“The legal practitioner has no personal knowledge of the kind of averments he makes. The contents of his affidavit are mainly hearsay ….

His affidavit being improper must be expunged from the record. Once the affidavit is so removed, the whole application falls away.”

The same is true in casu. The founding affidavit is defective and must be expunged from the record. There is therefore merit in the second point in limine and I uphold it.

Since an application stands and falls on the founding affidavit, once the founding affidavit is defective, the application cannot stand. The following order is therefore appropriate:

The points in limine be and are hereby upheld.

The application for condonation of late noting of appeal and extension of time within which to note such appeal be and is hereby struck off the roll with costs.

Nyama Law Chambers, applicant’s legal practitioners

Muvingi & Mugadza, respondent’s legal practitioners