Chipinge Rural District Council v Samuel Chimuriwo

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/172/25
HELD AT HARARE 19TH MARCH 2025
CASE NO. LC/H/16/25
AND
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 19TH MARCH 2025

AND

In the matter between

CHIPINGE RURAL DISTRICT COUNCIL

And

SAMUEL CHIMURIWO

RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE JUDGE

FOR THE APPELLABT: D. TANDIRI
FOR THE RESPONDENT: T. NYAMUCHERERA

MAKAMURE J:

This is an appeal arising from a determination by an arbitrator. Both parties had preliminary issues to raise. This judgment is therefore on those preliminary issues.

Preliminary issues raised on behalf of the Respondent

Two preliminary issues were raised on behalf of the respondent. These are that i) There appeal was filed out of time as the respondent was not served with the Notice of appeal ; and

ii) There was no alternative email address as required by the Rules of this Court , 2017 as amended.

It was the respondent’s case that the Notice was served on a trade union that used to represent him and not on him personally . This service was not done in accordance with the provisions of the rules. Reference was made to provisions of r6 and r7(i) which provide as follows respectively: R6 (the relevant portion)

“address of service” means the physical address or email address nominated by a person where documents may be served on him or her in terms of Rule 7(1);

And R7(1):

‘(1) Every applicant or appellant who files an application or appeal with the Registrar shall furnish, in the application or appeal, as the case may be, an email address or physical address at which he or she will accept service in terms of these rules, which physical address shall be within twenty-five kilometres of the office of the Registrar…’

It was argued on behalf of the respondent firstly, that the appellant knew the proper address where service was supposed to be effected. The Court’s attention was drawn to page 70 of the record which shows the letter of termination of employment which was served on the respondent. The address on this page is that of the appellant. Secondly it was argued that r11A(4) requires that a litigant provides an alternate email address for the purposes of service or delivery of pleadings. It was argued that the appellant failed to comply with this provision. It was argued that this rule was peremptory. Reference was made to the cases of **Nerves (Pvt) Ltd v Masuka LC/H/314/24 and Jensen v Acavalos 1993(1) ZLR 216** among other authorities, in support of the argument. Under the circumstances it was submitted that the appeal was not properly before the Court and should be struck off the roll.

In response it was argued on behalf of the appellant that parties were involved in several cases. They therefore were aware of each other’s contact details. In all those other cases the respondent was represented by a trade union. As such service was properly effected on the trade union. Further the same trade union would in some cases instruct the respondent ‘s legal practitioners of record. When service was effected at the offices of the trade union in question its officials accepted service on behalf of the respondent. There was no indication that the trade union no longer represented the respondent.

On the question of the alternative email address it was argued that the email was an alternative to the physical address. As such therefore there was compliance with the rules. Further in terms of R19, Form LC4 was properly completed and therefore a proper appeal was before the Court. It was submitted that the respondent did not show that he suffered any prejudice. It was argued that in any event the notice was compliant with the rules.

In reply it was insisted that there was non-compliance as there was no instruction for service to be made on the trade union. It was also submitted that there was a reason why the legislature provided that service must be effected on the litigant. Further each case is dealt with on its own merits and previous proceedings should not be used as an excuse not to comply with rules.

In considering the two preliminary issues, the view of the Court was that parties have communicated with each other before. What is apparent is that the trade union which used to represent the respondent accepted service on behalf of the respondent. The respondent eventually received the notice. The infraction by the appellant cannot stall proceedings. This is not to excuse the appellant but in the interests of finality to litigation the service that was effected will be considered as proper. Equally parties have communicated before and I believe that the alternative email address as set out in the rules should have been available to the respondent in view of their undisputed previous communication. The respondent has not shown that any prejudice was suffered. In any event Form LC4 was sufficiently informative. The appeal is therefore properly before the Court.

In the result the preliminary issues are dismissed.


Preliminary Issues raised on behalf of the Appellant.

The preliminary issue was that the legal practitioner for the respondent did not have right of audience when the notice of response was filed. For that reason, it was submitted that the notice of response was not properly before the Court. In the result it was submitted that the appeal was unopposed.

In response it was argued that r25 of the Rules of this Court 2017, as amended, does not state when an assumption of agency should be filed.

I think legal practitioners should take the Labour Court and its Rules seriously. What the respondent’s legal practitioner is saying is that a legal practitioner can file the assumption of agency as and when they please. This is highly undesirable. The rules may still not be perfect but they should be complied with as much as practicable. Failure to file assumption of agency in compliance with the rule before appearing in court is simply not proper because the rule is clear.

R 25 provides (the relevant portion):

‘(1) Where a party—

(a) …

(b) …

(c) is represented by a legal practitioner, the legal practitioner shall file a written notice of assumption of agency in Form LC 6 with the Registrar and serve copies of the notice to the other party or that party’s legal practitioner or representative.

(2) …


(3) ...

(a) ...

(b) ...

(c) ...

(d) ...

(4) A legal practitioner who does not comply with sub-rule (1) shall not have the right of audience in respect of that matter. (My underlining for emphasis)

The rule clearly says that where there is no assumption of agency the legal practitioner concerned has no right of audience. Where a legal practitioner files a pleading before filing an assumption of agency, that legal practitioner is not compliant with the rule.

In view of the clear terms of r25 the failure to file assumption of agency means that the notice of response, if it was filed before the assumption was filed, was not properly filed. I have checked the record which is on the platform, it does not seem to have the assumption of agency on behalf of the respondent’s legal practitioners. At least an effort should have been made to comply instead of disregarding the rule completely. It is trite that peremptory provisions of the rules should be complied with. Rules are made for the proper running of courts. **Delta Beverages (Pvt) Ltd v Zimbabwe Revenue Authority SC 9/19.** This means that the preliminary point has merit. It is upheld.

Accordingly, it is ordered that:

1. The preliminary point raised on behalf of the appellant being merited, it be and is hereby upheld.
 2. The Notice of response which was filed on behalf of the respondent having been file without complying with r25(1)(c) is not properly before the Court.

3. The appeal is accordingly treated as unopposed.

TANDIRI LAW CHAMBERS, APPELLANT’S LEGAL PRACTITIONERS.

LAWMAN LAW CHAMBERS, RESPONDENT’S LEGAL PRACTITIONERS.
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