Proprietor Machingauta v Brown Engineering

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/175/24
HARARE 29 JANUARY 2024 16 APRIL 2024
CASE NO LC/H/702/23
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IN THE LABOUR COURT OF ZIMBABWE
HARARE 29 JANUARY 2024 16 APRIL
2024

JUDGMENT NO LC/H/175/24
CASE NO LC/H/702/23

PROPRIETOR MACHINGAUTA
APPELLANT

BROWN ENGINEERING
RESPONDENT

Before the Honourable G. Musariji Judge:

For Appellant - Ms N. Matongwana Unionist
For Respondent - Mr T. Mupamhadzi, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court the both parties raised points in limine. The points shall be dealt with in turn.

Appellant

1. That the Notice of Response is fatally defective for want of form:

Rule 19(2) of the Labour Court Rules, 2017 requires a party to file his response in the prescribed form called LC2. Appellant alleged that the Response in casu does not comply with the requirement. A comparison of the response and Form LC 2 shows that the only difference is absence of the inscription “LC2” at the top right corner. The inscription is meant to identify the forms in the Rules.

It is not necessary that a party’s response in their pleadings be inscribed by the Form’s notation. Accordingly, the point lacks merit and must be dismissed.

2. That the Notice of Response is defective for lack of a company resolution authorising Opposition to the application


The Notice of Response is accompanied by an opposing affidavit deposed by respondent’s Human Resources Manager. He swore that he was authorised to deal with this matter. He does not refer to or attach a company resolution authoring him to act. The point was first made in Applicant’s Heads of Argument. The point is ignored in Respondent’s Heads of Argument. In argument Respondent’s Attorney undertook to furnish the Court with the requisite resolution. The applicable law was set in the case of

Dube v PSMAS 2019 93) ZLR 589(S)

… He must produce a resolution of the board of that entity which confirms that the board of is indeed aware of the proceedings and that it has given such person the authority to act in the stead of the entity. I stress that the need to produce such proof is necessary only in those cases where the authority of the deponent is put in issued. This represent the current state of the law in this country.”

This Court will be guided accordingly.

3. That the Respondent filed its Heads of Argument out of time:

Appellant’s Heads of Argument were issued on 13th October 2023. Respondent was required to file its Heads within 10 (ten) days per Rule 26(3)(a) Respondent’s Heads were issued on Monday 30th October 2023. The Heads were due by close of business on Friday 27th October 2023. Thus the Heads were filed 1 (one) court day out of time. Respondent’s attorney made an oral application for condonation and upliftment of bar in terms of Rule 26(2)(B). The delay in filing Heads was minimal and no prejudice to Appellant was alleged or shown. On that basis this Court condones the Respondent’s failure to file Heads of Argument timeous and uplifts the bar against it.

Respondent

1. That the Notice of Appeal is defective for failure to provide an alternative email address:

Rule 11A (4) of the Rules as amended by S.I. 03/23 provides that


“Every notice of appeal or application shall provide an alternative email address for the purposes of service or delivery of pleadings.”

Appellant’s notice of appeal does not have an alternative email address in violation of the Rule 11A. This Court has previously ruled that strict compliance with the Rule is required. Non-compliance renders the appeal fatally defective.

2. **That the grounds of appeal are not clear and concise:**

Unnecessary to determine in light of invalidity of appeal noted above.

**CONCLUSION**

Since the Court concluded that the appeal is fatally defective, the points taken by appellant become academic.

**Wherefore it is ordered that**

1. **The respondent’s point in limine be and is hereby upheld; and**

2. **The appeal is hereby struck off the roll for non-compliance with Rule 11A (4) of the Labour Court Rules, 2017.**


G MUSARIRI  
J-U-D-G-E
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