Bindura University of Science Education v Norman Hadzirabwi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/675/13
HARARE, 22 NOVEMBER 2013
CASE NO.
JUDGMENT NO. LC/H/675/2013
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/675/13

HARARE, 22 NOVEMBER 2013	           			     CASE NO. LC/H/387/12

AND 06 DECEMBER 2013

In the matter between:-

BINDURA UNIVERSITY OF SCIENCE EDUCATION	             Appellant

And

NORMAN HADZIRABWI							   Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr R. Gumbo (Legal Practitioner)

For Respondent		Mr A. Chambati (Legal Practitioner)

MAXWELL J.;

At the hearing of this matter I upheld the point in limine, dismissed the application and indicated that reasons would follow.  These are they.

A letter dated 30 October 2003 appointed Respondent as Applicant’s bursar with effect from 1 December 2003.  The appointment was for a fixed term of five years lapsing on 30 November 2008.  At the expiry of the contract, the post would be advertised and Respondent was eligible to apply.  At the expiry of the contract Respondent remained in post.  He was subsequently made to sign several three months contracts, the last of which would lapse on 28 February 2010.

Interviews were conducted for the filling of the post.  Respondent participated in the interviews but the panelists settled on another person.  Respondent was then advised that his contract would not be renewed on 28 February 2010.  Respondent challenged his non-appointment on grounds of legitimate expectation.  The matter went for conciliation and subsequently compulsory arbitration.  The Arbitrator held that Respondent was unfairly dismissed.  He went on to order Applicant to pay Respondent a month’s pay for every completed year of service and the following outstanding terminal benefits.

payment for the 2008 and 2009 holidays as resolved on 11 March 2010.

two months notice pay in terms of section 12 (4) (b) of the Labour Act.

six months pay as damages for the unfair loss of employment.

Applicant was dissatisfied with the award.  On 12 June 2012 Applicant noted an appeal in this court.  On 20 July 2012 a notice of response was filed with the Court.  Though it is disputed, the notice of response was served on Applicant’s legal practitioners correspondence offices and signed for by one Mfeke at 10.53 am on the same date.  A certificate of service was filed of record on 22 August 2012.

On 23 August 2012 Respondent made a chamber application for dismissal of the appeal in terms of Rule 19 (3) (a) of the Labour Court rules.  The application was made without notice to the applicant in terms of Rule 19 (4) of the same rules.  On 27 November 2012 Respondent made an urgent chamber application for dismissal of appeal.  He stated that:-

“three months later having filed my application the application is yet to be determined by the Honourable Court”.

He requested for his application filed on 23 August 2012 to be urgently determined.  On 28 November 2012 the appeal was dismissed with costs.

On 8 March 2013 Applicant filed an application for reinstatement of appeal.  In paragraph 7 of the founding affidavit Applicant states:-

“Based on these two applications which are defective anywhere an order was granted by this honorable Court barring applicant.”  (underlining for emphasis)

Applicant understood the order dismissing the appeal with costs to simply have the effect of a bar.  The basis for such a conclusion is not clear.  Applicant alleges that it had difficulty in accessing the record from the Registrar’s office.  When it final got the record the present application was made.

“to have the bar granted in favour of respondent by this Court be uplifted and the appeal be reinstated.” (para 10 founding Affidavit)

Applicant claims that the proof of service of the notice of response has no official stamp from the corresponding lawyers, although it is signed the name is not clear.  Applicant concludes that cannot by all standards be considered a valid service.  Further Applicant says the Corresponding Lawyers indicated that they have no record that they received such a document and the signature could not be linked to any of their employees.  In the result Applicant was advised that in the circumstances no obligation lay on the lawyers to file Heads of Argument as it is traditional to wait for the response from the respondent.

Applicant further submits that “the bar was granted in error if the foregoing is considered.” In Applicant’s view the procedure adopted under Rule 19 (3) (a) is totally defective.  Applicant further states:

“I am advised that this honourable Court is at large to uplift the bar and reinstate the appeal so that this matter is finalized on the merits.  Such an approach serves time and costs”.

Respondent raised a point in limine to the effect that Applicant has made a wrong application.  He further stated that after an application to have the appeal dismissed for non-compliance with Rule 19 (1), the appeal was dismissed and the order dismissing the appeal was served on the Applicant on 19 December 2012.  Applicant should therefore have filed an application for rescission of judgment.  I am inclined to agree with the Respondent.

It is trite that the proceedings in terms of Rule 19 (3) (a) are proceedings done in the absence of the other party.  The determination thereof is in essence a default judgment.  It is an established legal position that the proper procedure for undoing a default judgment is to seek rescission thereof in terms of section 92C of the Labour Act [Chapter 28:01] and Rule 33 of the Labour Court Rules SI 59/2006.

For the above principle I refer to the case of Redstar Wholesalers v Livingstone Mutomba SC 142/04 where Chief Justice Chidyausiku had this to say

“The proceedings were conducted in the absence of the Appellant and the judgment itself is very clear on that point.  It certainly is a judgment given in proceedings conducted in the absence of one of the parties and in respect of which the absent party can apply for rescission in terms of Section 92C (1) of the Act.”

Applicant does not dispute that it did not file Heads of Argument in the appeal.  What it disputes is that the notice of response was served on its corresponding lawyers.  However the Court which dismissed the appeal on 28 November 2012 was satisfied that proper service had been made.  That the Court dealt with the matter without notice to the Applicant is proper as it is provided for in the rules of this Court.  Rule 19 (4) states:

“An application against a defaulting party under sub rule (3)(a) may be made without notice to defaulting party”.

Applicant went to great lengths to remind the Court that this 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”.

Whilst I agree with that it does not dispense of the need to follow the rules of this Court.  Where time frames are provided, they must be adhered to.  Even though this Court

“is not guided by strict rules of procedure”

And is

“an informal court”

As submitted by applicant, time frames assist in dispensing justice as the Court must not be just to the Applicant only.  There must also be justice to the Respondent.

Applicant insuates foul play in the proof of service of the notice of response.  I am of the view that those are issues to be raised in seeking rescission of the default judgment.  Applicant also queries the completeness of the record that was availed to him from the Registrar’s Office.  That issue is not for Respondent to answer.  Furthermore Applicant boldly states:

“The general practice in the Labour Court therefore has been and is still that even where technicalities are raised the Court proceeds to hear the matter on the merits.”

Rule 19 (3)(b) spells out when the Court can consider the merits of the matter.  It states:

“the defaulting party shall (if no application, under paragraph (a) is made or granted) be barred and the Court may deal with the matter on the merits.” (underlining for emphasis)

Where  one party is in default, merits are considered where the other party has not applied for the dismissal of the matter in terms of sub rule 3 (a) of rule 19 of the Labour Court rules SI 59 of 2006.  Clearly this matter does not fall into that category as an application for dismissal was made and granted.

Applicant also made the following statement.

“Even if the Court were to be of the view that there is need for rescission, as a Court of equity, this Court has power to regulate its own proceedings and to order that the judgment has been rescinded and appeal reinstated.”

In essence the applicant was asking the Court to grant what has not been requested for.  Issues for consideration in an application for rescission of judgment have not been raised and argued before this court.  It would be improper for this court to simply order that a rescission of judgment has been granted.

Applicant further argued that in the Labour Court, the term “appeal’ assumes a special meaning.  It’s not “appeal” as commonly known.  He went on to cite Zhakata v Mandaza and Another HH 22/05 for the view that the special meaning of appeal encompasses other things, even review.  The Court does not agree with the applicant’s view.  The cited case was decided before the promulgation of the Labour Court Rules SI 59/2006.  The said rules clearly distinguish between review and appeal procedures.  In any event this issue is irrelevant to the request that is before this Court.  Applicant has requested for reinstatement of the appeal that was dismissed for non-compliance with the rules.  Applicant should have applied for rescission of the default judgment that was issued in terms of rule 19 (3) (a).

For the above reasons I upheld the point in limine and ordered as follows:

The point in limine, being with merit, be and is hereby upheld.

The application for reinstatement of appeal be and is hereby dismissed with costs.

Gumbo & Associates - Appellant’s Legal Practitioners

Chambati & Mataka Attorneys - Respondent’s Legal Practitioners