Hippo Creek Investments (Pvt) Ltd v Muchambo Karuni and 27 Others

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/277/23
HELD AT HARARE 24TH JULY 2023
CASE NO LC/H/470/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 24TH JULY 2023

JUDGMENT NO LC/H/277/23 CASE NO LC/H/470/23

20TH SEPTEMBER,2023

IN THE MATTER BETWEEN

HIPPO CREEK INVESTMENTS (PVT) LTD	APPLICANT

And

MUCHAMBO KARUNI AND 27 OTHERS	RESPONDENTS

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPLICANT	: MR G. MAKINGS (LEGAL PRACTITIONER) FOR THE RESPONDENTS : MR P. TICHIONA (LEGAL PRACTITIONER)

MAKAMURE J.

This is an application for condonation for late noting of response to an appeal noted on behalf of the respondents. Before the application could be argued three (4) preliminary issues were raised on behalf of the respondents. These are that (i) the applicant used Form LC3 instead of FORM LC 1;(ii) the application is not on notice to the other party ;(iii) the application has no legally recognized respondents and (iv) the relief being sought by the applicant is incompetent.

In response to the preliminary points raised it was argued with respect to the citation of the parties that all the respondents were named and there was documentation to the effect that there were 28 appellants. I have had sight of the notice of appeal .It cites 28 appellants , that is Muchambo Karuni and 27 listed others. In the case of Edmore Mapondera and 55 Others SC 82/22 the Supreme Court warned against the Court becoming too technical to the detriment of finality to litigation. It must be borne in mind that applicant did not choose that there be 28 respondents. It is the respondents who according to the record are 28 in number. The applicant cannot be blamed for referring to ‘Muchambo Karuni and 27 Others ( that is 28 respondents ). This is because there is documentation which actually reflects 28 appellants in the main matter.There is no merit in the merit in the preliminary issues agaist the citation of the parties.

With respect to use of the appropriate form. It is trite that when parties compile their documents, the appropriate forms must be used. However, in the interests of justice and equity as provided for in Rule 32 of the Rules of this Court, the Court is of the considered view that this is one of the cases where it can authorize a departure from the rules. I am fortified in taking this stance by the principle which was established in the case of Dalny Mine v Banda 1999 (1) ZLR 220 where the court held that it is not desirable for labour matters to be resolved on technicalities. Hopefully legal practitioners will not take this Rule for granted. It is only exercised where necessary. Further , it was held in Ndebele v Ncube1992(1) ZLR 288 that there is need for finality to litigation. If in the present matter the matter is disposed of on the basis of the technicality that a wrong form was used, the main dispute will remain unresolved. This will work an injustice on the parties. It is obviously a cause for concern when legal practitioners use wrong forms. They should know what forms to use and should just do what is right. I think it is high time that the Court considers ordering the legal practitioner(s) concerned to bear the costs of suit where a wrong form is used. That way the client is protected. Having stated this, I find that there is no merit in the preliminary point raised. It is dismissed. Equally it would be iequitable where the question to be decided has to do with the response to an appeal to find the respondent being required to respond in terms of the rules and not on notice to the other party. I find no merit in this preliminary issue. It too is dismissed.

The respondent raised the issue that the applicant filed heads of argument out of time and it is therefore barred. The matter before this Court for consideration is an application for condonation of late filing of notice of response. The Court can therefore not deal with an

issue which is not before it. The Court is therefore confined to the failure by the respondent (applicant) to file the notice of response on time. This is the application before it. Sight must not be lost of the fact that the main application is one for condonation. In view of what I have stated above this preliminary point is misplaced. It is not properly before me.

The respondent has raised a preliminary issue with respect to the draft order. The draft prayer on behalf of the applicant is  worded as follows:

‘Whereupon after reading the documents filed of record and hearing the parties:

IT IS ORDERED THAT

1. The Application for Condonation of the Late Noting by Applicant be and is hereby granted. ‘

It is not clear what the applicant wants to happen after the application for condonation has been granted. This means that the prayer if defective . The Supreme Court has on numerous occasions made it very clear that a litigant must state the exact relief that they are seeking. In Zimbabwe Newspapers (1980) Limited v Tembani Kufa SC 137/21 the Supreme Court referred to the case of Jensen v Acavalos 1993(1)ZLR 216 (S) where the following was quoted with approval

‘… If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.’

The Supreme Court held that a defective prayer cannot be amended.

See Zimbabwe Newspapers(1980) Limited v Tembani Kufa (above); Ndlovu &Anor v Ndlovu& Anor SC133/02.What this means is that the applicant’s prayer is defective. It cannot be amended. There is therefore merit in this preliminary point. The fact that the applicant’s prayer is defective means that the matter is not properly before the Court.

After considering all the preliminary points which have been raised on behalf of the respondent, there is no merit in three out of the four. The fourth preliminary issue shows that the matter is not properly before the Court. Consequently, the matter must be struck off the roll.

Accordingly, it is that:

The application for condonation for late filing a response to the appellant’s appeal be and is hereby struck off the roll.

G.T. MAKINGS, APPLICANT’S LEGAL PRACTITIONERS. CHATSAMA & PARTNERS, RESPONDETS’ LEGAL PRACTITIONERS.