N. Njilisi and 60 Others v Tambudzai Enterprises t/a Hilton Kwitspar

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/694/2013
HARARE, 21 NOVEMBER 2013
CASE NO. LC/H/694/2013
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/694/2013

HARARE, 21 NOVEMBER 2013	           	              CASE NO. LC/H/432/12`

AND 06 DECEMBER 2013

In the matter between:-

N. NJILISI AND 60 OTHERS 					    Appellant

And

TAMBUDZAI ENTERPRISES T/A				    Respondent

HILTON KWITSPAR

Before The Honourable F.C. Maxwell, Judge

For Appellant		Ms R.R. Mutitindindi (Legal Practitioner)

For Respondent		Mr S. Zingano  (Legal Practitioner)

MAXWELL J.;

At the hearing of this matter Respondent raised a point in limine.  Respondent submitted that the appeal was not in compliance with Rule 15 (1) (a) which stipulates that three copies of form LC3 must be completed.  He went on to say that from Appellant’s notice of appeal it is clear that rules of Court were not followed and this is a fatal omission.  Proper reasons must be given for a departure from the rules of this Court.  In casu Applicant has not given any, and has not asked for condonation.  Respondent submitted that the appeal is non-existent and must therefore be dismissed.

Appellant conceded that rules of Court were not followed but submitted that that is not fatal.  Appellant urged the Court to invoke rule 26 of the Labour Court rules SI 59/2006 and condone the failure by the Appellant to use the appropriate form.

An examination of form LC3 reveals that the following information is required.

Name and address of Respondent.

Name and address of Appellant.

An indication of the type of decision appealed against.

Date on which determination/direction was issued.

Brief facts and grounds on which appeal is based.

Relief sought.

Name and address of Appellant’s legal practitioner or employer/employee representative.

Names and addresses of any witnesses to be summoned, and notes on each.

Date and manner in which application was served on the Respondent.

Signature of person noting the application.

Signature of a witness.

The notice of appeal filed by the appellant in this case falls short in items 5,8,9 and 11 above.  In my view the question to be asked is whether or not Respondent was prejudiced in its preparation of a response to the appeal.  Respondent has not alleged any prejudice.  It has only made reference to the failure by Appellants to provide a background of the facts as required in tem 5 above.  However the general practice of legal practitioners who file appeals in this Court is to endorse on item 5.

“See grounds of appeal attached.”

I am satisfied that the notice of appeal filed by Appellants has sufficient information on this item.  Item 8 is irrelevant as no witnesses are entertained on appeal.  Item 9 is covered by a certificate of service that litigants file with the Court.  In this instance the filing of a notice of response is indicative of the fact that Respondent was indeed served with the notice of appeal.  Item 11 is immaterial as the person receiving the notice of appeal in the Registrar’s office will affix his or her signature and date stamp to confirm the filing of the notice.  Whilst I am not advocating for a wanton disregard of the rules of court, the defects in casu are not fatal.  The case of Standard Chartered Bank Limited v Wellington Chinyemba SC 87/04 is instructive on this aspect.

For the above reasons I am dismissing the point in limine. Wherefore it is ordered that:

The point in limine, being without merit, be and is hereby dismissed.

The Registrar is to set down the matter for hearing on the merits.

There shall be no order as to costs.

Matsikiddze and Mucheche – Appellants’Legal Practitioners

Ziumbe and Partners – Respondent’s Legal Practitioner