Happy Primary School v Tendai Mashekete

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/616/16
HELD AT HARARE ON 12TH SEPTEMBER, 2016
CASE NO. LC/H/616/16
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/616/16

HELD AT HARARE ON 12TH SEPTEMBER, 2016 	    CASE NO. LC/H/913/15

AND 7TH OCTOBER, 2016

In the matter between:-

HAPPY PRIMARY SCHOOL						    Appellant

And

TENDAI MASHEKETE							    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr N. Chikowore (Legal Practitioner)

For Respondent	:	Mr F. Mupezeni (Organising Secretary ZFTU)

MHURI J.

At the hearing of this appeal, Appellant’s legal practitioner raised two points in limine.  These were that:

The Respondent’s notice of response is improperly before the Court as it was filed out of time.

and

The Respondent’s document titled Respondent’s replication submissions filed in this Court is a process not provided in the Court’s Rules and must be struck out.

It was Appellant’s submission that the notice of appeal was filed and served on the Respondent on the 15th October, 2015.  Respondent was required, in terms of the Rules to file his response within 14 days to wit by the 4th November, 2015.  Respondent filed his response on the 6th November, 2015 i.e. 2 days out of time.

Respondent did not apply for condonation of late filing of the response neither did he give an explanation for the late filing.

As regards the second point, it was Appellant’s submission that, it filed its heads of argument on the 30th November, 2015 and Respondent filed his process headed Respondent’s Replication Submissions on the 1st February, 2016 i.e. some 2 months later.  The Rules prescribe when such process must be filed.  In terms of the Rules, the only process to be filed after the Appellant’s heads of argument is Respondent’s heads of argument.  If any supplementary process is to be filed it has to be filed with leave of the Court.

The process field by Respondent is not heads of argument, was filed after 2 months without leave of the Court and is therefore improperly before the Court.

Respondent’s representative conceded that indeed both the notice of response and the process were filed out of time.  The explanation for the late filing of the response was that the Respondent was of the view that the 6th was the 14th day and he diarized the date of filing as the 6th.  He only became aware of his mistake in Court when Appellant’s Legal Practitioner raised it as an issue.  He was however opposed to the granting of a default judgment on the basis that Appellant had responded to through Heads of Argument.

As regards the 2nd point, Respondent submitted that the document, are Heads of Argument.

In terms of Rule 22 of this Court’s Rules Statutory Instrument 59 of 2006 (THE RULES) where a Party fails to file a notice of response within the time frame (14 days) stipulated in the Rules, appears on the day of the hearing and shows good cause, why he did not file the response, the Court has a discretion to either postpone the matter to enable the filing of the response, or proceed to determine the matter.

Where the Party does not appear or show good cause for his failure, the Court may either enter default judgment or proceed to determine the matter.

In casu, Respondent through his Union representative appeared for the hearing.  He gave an explanation why his response was filed out of time.

The response was out of time by about 2 days.  This, in my view is not an inordinate delay.  The explanation given is in my view satisfactory.  I am satisfied that Respondent has shown good cause.  In terms of sub-rule (a) subparagraph (ii) the Court will proceed to determine the matter.

As regards the 2nd point, Respondent’s document in issue is titled, “RESPONDENT’S REPLICATION SUBMISSION”.  It was filed on the 1st February, 2016.  It is clear from its reading that Respondent was responding to Appellant’s Heads of Argument paragraph by paragraph.  Respondent’s representative submitted that the document is Respondent’s Heads of Argument.

In terms of Rule 19 where a party is represented by a legal practitioner the legal practitioner is obliged to file Heads of Argument within the set time frames (14 days of receiving a response – Appellant and 14 days of receiving Appellant’s Heads of Argument – Respondent.  A party who is not represented by a Legal Practitioner is not obliged to file Heads of Argument.  However in terms of sub-rule (5) if a party who is not legally represented decides to file Heads of Argument he is to comply with the time frames as stated above.  If Respondent’s document is to be accepted as Heads of Argument, it was filed way way out of time.  No application was made for its late filing.  In terms of Rule 19(3)(b) Respondent would be barred.

Respondent is represented by a Union representative – an organizing secretary.  Union officials are well versed with the law.  They are taken to know the Rules of the Court. I do not accept his submission that the document are Heads of Argument.   Why did he not simply title it Respondent’s Heads of Argument as Appellant had done as he was in receipt of Appellant’s Heads of Argument.  From the look of things, he was responding to Appellant’s Heads of Argument (response).

In terms of sub-rule (6) after Heads of Argument have been lodged with the Registrar, a party requires leave of the Court to file further papers.  Appellant’s Heads of Argument were filed on 30th November, 2015.  After this date no further papers could be filed by either party without leave of Court.  Respondent’s document, could not be filed without first obtaining leave.

I find therefore that this document was improperly filed and therefore is improperly before the Court and is to be struck out.  The point in limine was properly taken and is upheld.  The document is struck out as prayed by Appellant.

In the circumstances, the Registrar is directed to re-set the appeal for hearing on the merits.

GWAUNZA AND MAPOTA – Appellant’s legal practitioners

ZFTU – Respondent’s representatives