Bindura University v Norman Hadzirabwi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/316/14
HELD AT HARARE 20TH MAY 2014
CASE NO
JUDGMENT NO LC/H/316/14
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/316/14

HELD AT HARARE 20TH MAY 2014			CASE NO LC/H/351/13

& 6TH JUNE 2014

In the matter between:-

BINDURA UNIVERSITY			Appellant

And

NORMAN HADZIRABWI			Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr I Ndudzo (Legal Practitioner)

Mr S Zvinavakobvu (Legal Practitioner)

For Respondent		Mr A Chambati (Legal Practitioner)

MAXWELL, J:

On 24 March this Court gave an order for the consolidation of two matters “to be heard as one matter.”  The two matters are under references LC/H/387/12 and LC/H/351/13.  This judgment is on three points in limine raised at the hearing of these matters.

Respondent was employed by applicant as a bursar on a five year fixed term contract.  The contract expired on 30 November 2008.  Respondent was offered further fixed term contracts of three months until 30 November 2008.  On 30 November 2009 interviews or the bursar’s post were held.  Respondent attended but was not successful.  He thereafter made a complaint of unfair labour practice and the proceedings culminated in an arbitral award in his favour.  Applicant appealed under reference LC/H/387/12, which appeal was dismissed in terms of Rule 19 (3) of S.I. 59/2006 on 28 November 2012.

Thereafter respondent sought quantification of the award which quantification was done and an award was made on 25 April 2013.  On 21 May 2013 applicant noted an appeal against the quantification award under reference LC/351/13.  This appeal was also dismissed in terms of Rule 19 (3) of S.I. 59/2006 on 12 September 2013.

On 26 November 2013 applicant filed an application for rescission of judgment and upliftment of bar in case number LC/H/387/12.  On the same day applicant also filed an application for condonation of late application for rescission of judgment and upliftment of bar in the same matter.  The application was opposed by respondent on 9 January 2014.  On 21 January 2014 applicant filed heads of argument in this matter and respondent filed his on 27 January 2014.

On 17 January 2014 applicant filed an application for rescission of default judgment and upliftment of bar in LC/H/351/13 and also an application for condonation of the late filing of that application.  Respondent filed his response on 27 February 2014.  There are no heads of argument on record in relation to the applications filed on 17 February 2014 in respect of LC/H/351/13.

I will now proceed to deal with the points in limine raised at the hearing of this matter.  The first is that applicant is barred for not filing heads of argument in LC/H/351/13.  It was submitted for applicant that the objection had been overtaken by events as the matters had been consolidated.  It was further submitted that consolidation is a merger and therefore there is only one matter before this Court.  Applicant was of the view that the objection should have been raised at the time the application for consolidation was considered.  Applicant further submitted that respondent had consented to the consolidation and the order by consent cannot be appealed against or varied.

I do not agree with applicant.  His reading of the order for consolidation of the matters cannot be correct.  The application for the consolidation of the matters was filed on 26 February 2014.  The following day respondent filed his notice of response to the application under LC/H/351/13.  The moment applicant received the notice of response, an obligation to file heads of argument in terms of Rule 19 was triggered.  That an application which had been filed the previous day was still pending did not suspend that obligation.  The order for the consolidation of the matters was given on 24 March 2014, after the expiry of the 14 days within which the heads of argument should have been filed.  My interpretation of the order for consolidation is that the merits of the matters would be considered on the same date as one matter provided that all procedural requirements had been met.  Applicant submitted that since there are heads of argument on file they should suffice for the consolidated matter.  This is to ignore the fact that when those heads of argument were filed

The order for consolidation had not been given.

Applicant put the reference number of the matter to which the heads of argument related to, i.e. LC/H/387/12.

In my view, if the heads of argument related to the consolidation they

would have borne the references for both matters.  I therefore find merit in the objection and I uphold it.

The second objection is that there are no prospects of success as the appeal is against a default award.  It was submitted that what is before the Court is therefore based on a nullity.  Applicant submitted that the position of law in this jurisdiction is very clear that there cannot be such a thing as a default award or order for quantification of labour damages.   Applicant  made reference to the case of Redstar Wholesalers v Mabika SC 52/05.  The said case does not support applicant’s position.  What the Supreme Court condemned was the plucking of a figure out of a hat.  In this case the respondent submitted his calculation of the quantification which is on pages

58 – 60 of the record.  Applicant chose not to file any submission to the Arbitrator on quantification.  On page 2 of the award, the Arbitrator notes under respondent’s submissions that

“For reasons best known to himself respondent did not file any submissions as agreed as per agreement dated 15 April 2013 and failure to file would result in respondent being barred to file after 16 April 2013,”

Clearly the award was issued in default of applicant’s participation.  Any challenge to that award therefore should first address the issue of the default before the Arbitrator.  I therefore find merit in the second point in limine and therefore uphold it.

The third point in limine is that in the second application.  Applicant improperly raises new factual issues in heads of argument.  Respondent contends that applicant raised new reasons for the failure to comply with the rules and abandons the reasons proffered  in the founding affidavit.  Applicant submitted that respondent had not addressed the issue of prejudice he would suffer if the arguments in the founding affidavit and heads of argument are considered by the court.  The Court’s attention was drawn to rule 12 and 26 of S.I. 59/2006 and urged to allow the matter to be argued on the merits.

Whilst this Court is enjoined to avoid formality in its proceedings in my view it does not mean ignoring fundamental principles of legal proceedings.  As submitted by respondent it is trite that in application proceedings, an application stands or falls on the founding affidavit.  In my view the Court is enjoined to avoid formality as self-actors and trade unionists appear before it.  A legal practitioner is expected to be familiar with procedural requirements.  In this case the documents complained of were filed by legal practitioners.  I am not persuaded that the circumstances of this case warrant reliance on Rule 26 of S.I. 59/2006.  The new issues raised is the heads of argument are therefore improperly before the court and will be disregarded.

As submitted by respondent once the new issues raised in paragraph 7 of applicant’s heads of argument are disregarded, the application falls short of the requirements for it to be granted.  The Court is left in doubt as to what are the reasons for the delay.  Such a position does not favour the granting of the application and therefore there is merit in the third point in limine and I upheld it.

In the final analysis I find merit in all the points in limine raised and uphold them.  Accordingly I dismissed the applications with costs.

Matamangira & Associates, appellant’s legal practitioners

Chambati, Mataka & Makonese, respondent’s legal practitioners