Sino Zim Development (Pvt) Ltd v Tinashe Chaparadza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/476/16
HELD AT HARARE 29 JUNE 2016
CASE NO
JUDGMENT NO LC/H/476/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/476/16

HELD AT HARARE 29 JUNE 2016				CASE NO LC/H/APP/1461/15

& 9 SEPTEMBER 2016

In the matter between:

SINO ZIM DEVELOPMENT (PVT) LTD			Applicant

And

TINASHE CHAPARADZA				Respondent

Before The Honourable Maxwell, J

For Applicant			W Chivaura (Legal Practitioner)

For Respondent		F Chiwashira (Legal Practitioner)

MAXWELL J:

At the hearing of this matter respondent raised a point in limine which is the subject of this judgment.

This is an application for rescission of judgment.  On 18 November 2015 a judgment was issued in default of applicant’s attendance.  Service on applicant had been effected by affixing to outer principal door at the address of service of record.  On 8 December 2015 the present application was filed.  The founding affidavit was deposed to by applicant’s counsel.  The notice of response was filed on 7 January 2016.  The affidavit  of response stated that there is no prayer to the application and it should be dismissed with costs.  In response counsel for applicant included a prayer in heads of argument.  The pleadings clearly show that counsel for applicant was not applying his mind to the task at hand.  The applicant’s heads of argument made the applicant the respondent and the respondent the applicant in the citation.  The heads of argument were filed on 27 June 2016.  Applicant did not take any action to remedy the defect in the application which was pointed out in the response filed on 7 January 2016.  Even after filing heads of argument on 27 June 2016 no formal application to correct the defect was made.  I find such an attitude appalling.  The application was heard on 29 June 2016.  The only prayer before the court was contained in heads of argument.

It is trite that heads of argument constitute persuasive argument, making reference to issues and evidence already placed before the court by parties at the founding stage.  See Nehowa v Barep Investments (Pvt) Ltd 2012 (2) ZLR 176.  It follows therefore that heads of argument cannot be used to cure defects in the founding affidavit.  As stated in Austerlands (Pvt) Ltd v Trade & Investment Bank & Others SC 92/05 an application stands or falls on the founding affidavit and the facts alleged in it.  See also Mbanje v Charter Properties (Pvt) Ltd & Others H-H-131-11.  It was therefore improper for counsel for applicant to include the prayer in heads of argument where the prayer had not been stated in the founding affidavit.

The question that exercised the court’s mind is whether the defect in the founding affidavit is fatal.  Respondent urged the court to find the defect fatal and dismiss the application on that basis.  He made reference to the case of Mumvumi & Anor v United Refineries & Anor HB-77-04 where it was stated that the court may not grant the applicants a remedy which they have not even bothered to seek.  Paragraph 4 of the founding affidavit clearly states that this is an application for rescission of judgment.  Paragraph 8 beseeches the court to grant the applicant an opportunity to be heard and defend its interests.  I am therefore satisfied that what the applicant is seeking before the court is clear.  Further evidence that counsel for applicant was not applying his mind to the task is that a draft order is filed of record but there is no reference to it at all in the preamble to the application.  The draft order seeks the setting aside of the judgment issued in default.  Counsel’s conduct in this regard is to be abhorred.

Be that as it may the Supreme Court had occasion to deal with a similar issue in Standard Chartered Bank Ltd v Chinyemba SC 87/04.  In that matter the first ground of appeal was that the notice of appeal does not set out the relief sought and the Labour Relations Tribunal should have dismissed the appeal on that basis.  The Chief Justice stated that the alleged defect is not fatal.  He explained that the procedures to be followed on appeal did not prescribe that the appellant should set out the relief sought.  In my view, the same applies to the present application.  There is no specific rule that provides that an applicant should set out the relief sought.  It is for the above reason that I find no merit in the point in limine.

Consequently the following order is appropriate.

The point in limine be and is hereby dismissed for lack of merit.

The Registrar is to set the matter down for argument on the merits on the next available date.

There is no order as to costs.

Maunga Maanda & Associates, applicant’s legal practitioners

Kanoti & Partners, respondent’s legal practitioners