Turnall Holdings Limited v Grace Parakokwa & Kenias Horonga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/268/2020
HARARE, 25 OCTOBER, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/268/2020

HARARE, 25 OCTOBER, 2020			     CASE NO. LC/H/APP/485/19

AND 20 NOVEMBER, 2020

In the matter between:

TURNALL HOLDINGS LIMITED					APPLICANT

Versus

GRACE PARAKOKWA							1ST RESPONDENT

KENIAS HORONGA							2ND RESPONDENT

Before The Honourable Hove J;

For Applicant:			Mr S. Banda (Sinyoro & Partners)

For 1st Respondent:			No appearance

For 2nd Respondent:			Mr C. Mavhondo (Mhishi Nkomo Legal Practice)

HOVE J:

This is an application for leave to appeal a decision of this court to the Supreme Court. The decision being sought to be appealed against was handed down on 26 July 2019.

When the application for leave to appeal was heard in court, the 2nd respondent raised 3 points in limine. The 2nd respondent argued that the application was fatally defective due to its failure to comply with the law and practice and must be struck off the Roll.

Firstly, the applicant was supposed to state specifically the name of the Judge whose judgment is being sought to be appealed against. The applicant states that the decision being appealed against is that of Hove and Maxwell JJ. To the contrary, the Judgment attached to the application was handed down by Hove J.

The applicant again failed to state the Judge who handed down the decision in the second paragraph of its draft notice. It was submitted that these are material defects. They are inexcusable and renders the application fatally defective.

Secondly, in terms of practice directive No.1 of 2017, the draft notice of appeal must, inter alia, offer security for respondent’s costs of appeal. This is a requirement for a valid notice of appeal. The applicant failed to offer security for respondent’s costs. It was again argued that this makes the draft notice of appeal fatally defective and must be struck off the Roll.

Thirdly, an application in terms of section 92F (2) of the Labour Act [Chapter 28:01] (the Act) seeking leave to appeal shall be made to a Judge. It was argued that this means that the application shall be made to a Judge in chambers and not in open court. Contrary to the provisions of rule 43 of the Labour Court Rules, 2017, the applicant filed a court application instead of a chamber application. The 2nd respondent again urged the court to strike the application off the Roll.

The applicant does not deny that instead of stating that the Judgment was handed down by Hove J, it stated that the Judgment was handed down by two Judges, that is, Hove J and Maxwell J. Applicant however argues that this was a typographical error. The applicant did not seek to apply to correct the error. The result is that the notice of appeal fails to comply with the requirements of Practice Directive No.1 of 2017 in that it fails to correctly specify the name of the Judge who handed down the decision being sought to be appealed against. This error speaks of carelessness, a lack of seriousness and I agree that the application is improperly before the court for failing to comply with the practice directive.

The applicant’s draft notice of appeal fails to offer security for respondent’s costs in terms of practice directive No. 1 of 2017. It is not in compliance with the requirements of a valid draft notice of appeal. The draft notice of appeal is fatally defective. Legal practitioners are enjoined to follow prescribed forms and procedures when drafting court process. Practice directives and rules are not there for decorative purposes. They guide litigants as to the format of pleadings and process for the proper running of the Courts. Legal practitioners are not free to pick and choose what to comply with for this would bring uncertainty and confusion. The rules and the practice directives are for a purpose and they must guide legal practitioners.

The Supreme Court emphasized the importance of observing the rules and practice Directives in the case of Yanus Ahmed v Docking Station Safaris Private Limited t/a CC Sales SC 70/18. It was stated that as a general rule, where the Rules of Court or a Practice Direction prescribe a form to be followed when drafting court process and legal practitioners are enjoined to use the prescribed forms.

The applicant filed this application as a court application and not as a chamber application. Applicant argued that the rules provide that when the chamber application is to be served on the other side, it must be in Form LC1 which is the form that it used. The form LC1 that was used is not in compliance with rule 17 which states that;

“17(1) A chamber application shall be in form LC 12 duly completed and shall be supported by one or more affidavits setting out the facts upon which the applicant relies.

Provided that, where a chamber applicant is to be served on an interested party, it shall be in Form No. LC1 with appropriate modifications”.

The form LC1 that was used has no modifications at all to indicate that it is a chamber application.

The applicant merely used form LC1 without complying with Rule 17. Rule 17 is couched in peremptory terms and failure to comply with its provisions renders the application fatally defective.

The Rules and the practice directive are binding on legal practitioners seeking to note an appeal to the Supreme court and also seeking to file an application for leave to appeal before the Labour court. They must be complied with. The applicant has failed to comply with both the provisions of the Practice directive and the rules of the Court. The applicant is therefore fatally defective and the following order is appropriate.

Order

The application for leave to appeal be and is hereby struck off the Roll.

Sinyoro & Partners	-	Applicant’s Legal Practitioners

Messrs Mhishi Nkomo Legal Practice	- Respondent’s Legal Practitioners