Biggy Tsopo v National Employment Council for the Engineering Iron and Steel Industry

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/110/2014
HARARE, 18 & 28 FEBRUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/110/2014

HARARE, 18 & 28 FEBRUARY 2014	    	       CASE NO. LC/REV/H/471/13

In the matter between:-

BIGGY TSOPO								Applicant

And

NATIONAL EMPLOYMENT COUNCIL FOR THE			Respondent

ENGINEERING IRON AND STEEL INDUSTRY

Before Honourable E Muchawa, Judge

For Applicant		-	Mrs. R.T.L. Matsika (Legal Practitioner)

For Respondent		-	Mr. G.H. Muzondo (Legal Practitioner)

MUCHAWA J:

This is an application for condonation of late filing of heads of argument and upliftment of bar.  Applicant filed an application for review on the 28 August 2013.  On the same date, the First Respondent was called upon to file a Notice of Response in Form LC2.  First Respondent, who was a self actor then, proceeded to file a Notice of Opposition on the 6th of September 2013.

Applicant then filed heads of argument on the 25th November 2013.  The First Respondent has taken the position that the heads of argument were filed out of time as they were filed some 55 days later instead of within the prescribed 14 days.  Applicant is said to be barred in terms of Rule 19 (1) (a) of the labour Court Rules.

On the other hand, applicant’s position is that since first respondent did not file a proper notice of response as prescribed by Rule 14 (2) (a), the obligation to file heads of argument did not arise.

I start by looking at the response filed.  It is applicant’s argument that the provisions of Rule 14 (2) (a) are peremptory.  A respondent who wishes to oppose an application is required to complete in three copies a Notice of Response to the application in Part II of Form LC2.  The prescribed Form Form LC2 appears as part of the Labour Court Rules.  The wording used; “You are hereby required –“is said to be compulsory and similar in effect to the use of the word “shall”.

Further applicant argues that the validity of the Notice of opposition is affected leading to nullity.  Rule 22 (b) which provides that where a Respondent fails to show good cause why he or she did not file a Notice of Response, a default judgment may be entered, is considered a penalty for non compliance.

First respondent argues that the provisions of Rule 14 (2) (a) are not peremptory but merely directory on the respondent.  It is the registrar who is however compelled in a peremptory manner, to give notice to the respondent to file a response.

It is explained that as a self actor, the first respondent was not conversant with the procedures and formalities of the court and the filing of a Notice of Opposition should be accepted as substantial compliance.  I was implored to condone any arising non compliance, in the interests of justice, fairness and equity in terms of Rule 26 of the Labour Court Rules.  I was referred to the case of Dalny Mine v Banda 1999 (1) ZLR 220 (S) for the proposition that labour matters should not be decided purely on technical grounds.

I feel this is one matter where the words in Passmore Malimanjani v CABS SC 47/2007 are apt.

“The Labour Court is a court of equity, concerned not with the formalities and technicalities of the legal profession, but with achieving just and equitable resolution of disputes between the parties.”

I also believe that the practice of this court is to afford the self actor in litigation, a degree of tolerance, within permissible limits to eschew too rigid an adherence to procedural requirements in respect of such self act or (see Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC).  In the circumstances I find that the filing of the notice of opposition was in itself substantial compliance with the Labour Court Rules.

I turn to consider the application for condonation.  The requirements to be satisfied are set out in Forestry Commission v Moyo 1997 (1) ZLR 254 (S).  They are:

That the delay was not inordinate having regard to the circumstances of the case;

That there is a reasonable explanation for the delay;

That the prospects of success in the main matter are good;

That there will be little or no prejudice to the other party should the application be granted.

Appellant does make a good case of first respondent’s failure to comply with Rule 14 (2) (a) and if this court was inclined to proceed technically, it would have found that the notice of opposition was therefore not a proper filing of a response.  In the circumstances of this case, having exercised my discretion to condone the filing in a non prescribed form of a notice of response, I do find that the explanation given is reasonable and consequently the delay is not inordinate.

The main matter does present interesting issues for consideration by this court and either party has fair chances of success.  I note too that First Respondent will not be prejudiced.  Instead, applicant is the one who is on suspension without pay.

I think this is a case where technical objections should not be permitted to interfere with the expeditious resolution of matters on their real merits.  I therefore condone the late filing of heads of argument and uplift the bar.

It is therefore ordered that:

The applicant be and is hereby granted condonation for late filing of its heads of argument.

The automatic bar in operation be and is hereby lifted.

The registrar is directed to proceed to set down the application for review at the next available date.

Wintertons, Applicant’s legal practitioners

G.H. Muzondo & Partners, Respondent’s legal practitioners