Zimbabwe Revenue Authority v Collen Taruva

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/244/24
HARARE, 31 MAY, 2024
CASE NO LC/H/359/24
06 JUNE 2024
ZIMBABWE REVENUE AUTHORITY
APPELLANT
COLLEN TARUVA
RESPONDENT
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE

HARARE, 31 MAY, 2024
06 JUNE 2024

JUDGMENT NO LC/H/244/24

CASE NO LC/H/359/24

ZIMBABWE REVENUE AUTHORITY

APPELLANT

COLLEN TARUVA

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant - Mr H Muromba, Attorney

For Respondent - Mr A Mugwanju, Unionist

MUSARIRI, J:

At the onset of oral argument in this Court appellant took a point in limine which respondent opposed.

The point is expatiated in appellant’s heads of argument as follows:

“15. It is submitted that there is no Notice of Response before the Honorable Court as the Respondent filed a fatally defective Notice of Response on 26 April 2024, the last date within which Respondent was supposed to file the Notice of Response in terms of the Rules of the Court.


16. The defective nature of the notice of response emanated from the fact that the Form LC 2 was not dated, it had no signature and there was no accompanying opposing affidavit as required by the Court Rules.

17. The position is clear that a fatally defective pleading is a nullity at law...

20. In the event that the Honorable Court disregards the defective Notice of Appeal filed on 26 April 2024 and considers the one which was filed on 6 May 2024, the Appellant submits that this Notice of Response was filed out of time and therefore invalid.

27. The Notice of Response, having been filed out of time, means that Respondent is barred. As such, the Appellant’s appeal should be treated as unopposed and be allowed on that basis.”

Per contra respondent countered in his heads of argument thus;

“12. The Notice of Response was filed on 26 April 2024 by the Respondent’s Representative who is currently not feeling well. However, on that day, due to a technical challenge, the full document could not be uploaded. This was realized later, and the full document of the Notice of Response was later uploaded.

The Appellant is raising a point in limine and at the same time admitted that she received reloaded Notice of Response within his 10-day window period.

So, the Appellant was not prejudiced of any information necessary for her to submit her Heads of Arguments.

The fact that she used the reloaded Notice of response and managed to file her heads of Arguments in time means that she cannot dwell on the issue of defective Notice of Response.”
 The Notice of Appeal in casu was served on the respondent on the 11th April 2024. In terms of Rule 19(2) of the Labour Court Rules SI 150/17 a respondent is required to file his/her response within ten (10) days of receipt of the appeal. Thus, the respondent in casu was required to file his response on or by 26 April 2024. According to his own word he tried to file the response on that date but failed due to “a technical challenge.” He then filed a Response which was uploaded on the 6th May 2024. That is the only Response on file. It was filed out of time. No condonation of late filing was sought or granted by this Court. The “Response” is therefore improperly before the Court.

See Sibanda v Ntini 2002 (1) ZLR 264(5)

Per MALABA CJ at 267A

“if he (defaulter) does not make the application within that (prescribed) period but he wants to make it after the period has expired, he must first of all make an application for the condonation of the late filing of the application.”

This Court is guided accordingly.


Wherefore it is ordered that,

1. Appellant’s point in limine be and is hereby granted;

2. Respondent’s “Notice of Response” is struck off the record;

3. The appeal be and is hereby allowed;

4. The determination by the Designated Agent issued on 11th March 2024 is set aside and substituted as follows;

“The Defendant is found guilty as charged and is dismissed from employment by complainant.” and

5. Each party shall bear its own costs.

G. MUSARIRI
J-U-D-G-E
--- END OCR FALLBACK ---