Mhandu Badza v Grain Marketing Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/360/2016
HARARE 10 MAY 2016
CASE NO. LC/H/286/15
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/360/2016

HARARE 10 MAY 2016				       CASE NO. LC/H/286/15

AND 10 JUNE 2016

MHANDU BADZA								Appellant

GRAIN MARKETING BOARD						Respondent

Before The Honourable G. Musariri, Judge:

For Appellant 		Ms M. Badza, Appellant

For Respondent		Mr P. Makuwaza, Attorney

MUSARIRI, J:

At the onset of oral argument, Respondent raised 2 points in limine.

That Appellant is barred

Appellant filed her appeal to this Court on 31st March 2015.  Respondent filed its Response on 20th April 2015.  It served same on Appellant that same day.  In terms of Rule 19 (1) a of this Court’s Rules, Appellant should have then filed her Heads of Argument within fourteen (14) days of receipt of the Response.  Appellant did not do so.  She only belatedly filed the Heads on 30th July 2015.  In terms of Rule 19 (3) b, “the defaulting party shall (if no application under paragraph (a) is made or granted) be barred and the Court may deal with the matter on the merits.” On that basis Respondent prayed that Appellant’s belated Heads be “expunged” from the record.  Appellant, who appeared pro se, stated that she failed to pay her attorney’s fees and hence the failure to act timeously.

Ordinarily I would go with Respondent’s argument.  However in this matter the default has been purged though belatedly.  The Heads have been filed.  The reason for the delay has been explained as failure to pay fees.  That is understandable considering that Appellant has been dismissed from employment by Respondent.  I consider it equitable that the delay be excused so that the matter may be heard and determined. On that basis, I invoke the powers of this Court under Rule 26 and hereby condone Appellant’s failure to file the Heads timeously.

That Grounds of appeal 1 & 2 are improper

Respondent argued that the above grounds improperly raise matters of review as opposed to grounds of appeal.  The grounds read as follows,

“1.	The Respondent erred by denying the Appellant access to legal representation which is a fundamental right.  The hearing was accordingly not conducted in accordance with the principles of neutral and impartial manner.

2.	The Respondent erred in conducting the whole of the second day’s proceedings in Appellant’s absence thereby breaching the audi alteram partem rule.”

Respondent prayed that these grounds be struck off.  Appellant’s response was that she approached some official who advised her to appeal to this Court.

Evidently Appellant failed to grasp the naunce of Respondent’s objection.  The two (2) grounds of appeal both complain about procedural matters. They do not address the merits of the decision appealed against.  As such they should have been taken up by way of review.  They cannot be smuggled into an appeal.  The grounds should be struck out of the record.

Wherefore it is ordered that,

Respondent’s points in limine are partially upheld;

Appellant’s Grounds of appeal numbers 1 & 2 are struck out; and

The Registrar of this Court is directed to re-set the matter for continuation.

G. MUSARIRI

J-U-D-G-E