Zimbabwe Manpower Development Fund v Stanley Machote

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/218/2016
HARARE, 17 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/218/2016

HARARE, 17 MARCH 2016			          	       CASE NO. LC/H/572/14

AND 22 APRIL 2016

In the matter between:-

ZIMBABWE MANPOWER DEVELOPMENT FUND			Appellant

And

STANLEY MACHOTE							Respondent

Before The Honourable  F.C. Maxwell, Judge

For Appellant		Mr S Hashiti (Legal Practitioner)

For Respondent		Mr A. Chambati (Legal Practitioner)

MAXWELL, J:

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

The appellant filed a notice of appeal against an arbitral award on 7 July 2014.  On the same day the respondent’s legal practitioners received the notice by the Registrar in form LC 2 inviting the filing of a notice of response.  No notice of response was filed within the stipulated time.  On 25 November 2015 appellant filed heads of argument which were duly served on respondent’s legal practitioners.  It was not until 2 February 2016 that an application for condonation of late filing of the notice of response was filed.  I am of the view that the filing of that application was triggered by the set down of the matter on 3 February 2016.

On 3 February 2016 parties appeared before me and counsel for respondent pointed out to the Court that there are two pending applications which should be heard before the main matter is dealt with.  Despite opposition from Applicant’s Counsel, the matter was postponed to facilitate the determination of the two applications.  On 24 February an order by consent was granted on the following terms;

“1.	In terms of an order by consent filed of record, it be and is hereby ordered that the application for condonation of late filing of a notice of response in the appeal case Number LC/H/572/14 be and is hereby granted.

2.	The applicant’s notice of response shall be considered as properly before the court and heads of argument shall be filed in terms of the Rules in case LC/H/572/14.

3.	Pending the hearing and finalization of the appeals in case Number LC/H/572/14 and LC/H/997/14, the applicant shall suspend execution of the arbitral awards being challenged therein including any bill of costs consequent to any proceedings prescribed on these matters.

4.	Thereafter, the Registrar and the parties shall attend to the setting down of the appeal in LC/H/572/14 for hearing on the merits.

5.	Costs shall be in the cause.”

The matter was subsequently set down for hearing on 17 March 2016.  Respondent’s Counsel raised the point in limine which is the subject of this judgment, that appellant was barred for non-compliance with Rule 19 of SI 59/06. Counsel argued that the order granted by consent stipulated that heads of argument were to be filed in accordance with the rules.  He interpreted that to mean that the heads of argument filed by appellant before the notice of response was filed were to be disregarded.  He argued further that the filing of the notice of response triggers the filing of heads of argument and therefore appellant is barred as it has not responded to the notice of response.

Counsel for appellant was understandably taken by surprise.  He submitted that for such a party who had enjoyed such generosity to use his own wrong to disbar the appellant is inconceivable.  He submitted further that heads of argument are not filed in response to the notice of response but to support a case made.  Counsel for appellant also submitted that if there was need to supplement appellant’s heads of argument after the receipt of the notice of response appellant would have done so.  Counsel prayed that the court disregard the submissions of respondent’s counsel and hear the matter on the merits.

The filing of heads of argument is governed by Rule 19 of SI 59/06 which gives the purpose of the heads of argument in the following terms;

“….. heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities, if any, which he or she intends to cite …”

It is true that in accordance with the procedure set out in the rules, the appellant’s heads of argument are to be filed after receiving a notice of response.  The question that arises is what happens when respondent has not filed a notice of response?  In my view it is up to appellant to either file heads of argument or simply apply for a default judgment.  Filing of heads of argument in the absence of a notice of response will assist the court should it proceed in terms of Rule 22 (a) (ii) or 22 (b) (ii) to determine the matter.  Appellant chose to file heads of argument where no notice of response had been filed.  Subsequently respondent was allowed to file a notice of response.  Another question is whether the order by consent of 24 February 2016 nullified the heads of argument already filed of record.  In my view it did not.  The order of 24 February 2016 was authorizing a departure from the Rules as far as respondent was concerned.  Applicant had complied with all that was required of it by the time that order was given.  However, should there have been need, the order also gave room for appellant to file further heads of arguments.  The notice of response is not the basis of the heads of argument for appellant.  The heads of argument are to support the case appellant would have set out in the notice of appeal.

In any event, the court rules are not an end in themselves, to be slavishly applied for their own sake, but are to regulate the practice and procedure in court.  See Forestry Commission v Moyo 1997 (1) ZLR 254.  To bar an appellant who complied with the rules of Court prior to respondent being granted an indulgence would be unjust.  No proper basis has been laid for the bar anyway.  Appellant’s heads of argument are on record, having been filed in default of the notice of response.  The order of 24 February 2016 should therefore be read in that context.  I am not inclined to uphold the point raised in limine in the circumstances of this case.

The following order is therefore appropriate.

The point in limine be and is hereby dismissed with costs.

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

Matsikidze & Mucheche, appellant’s legal practitioners

Messrs Chambati, Mataka & Makonese, respondent’s legal practitioners