Cleopas Zwimba v Maranatha Ferrochrome (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/99/23
HARARE, 14 February, 2023 AND 31 March, 2023
CASE NO. LC/H/APP/390/2020
X REF LC/H/REV/326/17
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 14th February, 2023 AND 31st March, 2023

CLEOPAS ZWIMBA

APPLICANT

VS.

MARANATHA FERROCHROME (PVT) LTD

1ST RESPONDENT

and

S. ZIMUTO

2nd RESPONDENT

Before the Honourables Musariri & Chivizhe, JJ;

Applicant - In person

For the 1st Respondent - Mr S.M. Bhebe – Legal Practitioner

For the 2nd Respondent - No appearance

CHIVIZHE, J:

The matter was placed before the court as an application for rescission of an order granted by this court on the 18th of November, 2020 which order resulted in the dismissal of the applicant’s application for leave to appeal to the Supreme Court under Case number LC/H/ORD/735/2020. The 1st respondent opposes the present matter and contends amongst other things that the application should be dismissed with costs. It is necessary to outline initially the material background facts of the matter.


Background

The applicant is a former employee of the $1^{st}$ respondent. He was dismissed from employment on $27^{th}$ February 2008 following a disciplinary process. The applicant being aggrieved referred a complaint of unfair termination to the Labour Officer. The matter was later referred to compulsory arbitration. On $23^{rd}$ March 2020 an award directing applicant’s reinstatement without any loss of benefits from the date of unlawful termination was granted. According to applicant from the date of that award to April 2011 the parties were engaged in negotiations for an exit package which never materialized. From April 2011 to $3^{rd}$ February 2016 upon enquiry $1^{st}$ respondent would claim that the matter had been referred to arbitration and was awaiting a date of set down. This however proved to be an incorrect position. The applicant with assistance from Legal Aid Directorate on $3^{rd}$ February 2016 referred the dispute to a Labour Officer in Chinhoyi. Two issues were before the Labour Officer;

(a) Salaries and benefits owing from date of unlawful termination to date.
(b) Exit package or damages in lieu of reinstatement.

Both parties appeared before the Arbitrator and made oral as well as written submissions. On $25^{th}$ October 2017 the Arbitrator who is cited as the $2^{nd}$ respondent in this matter issued an award directing the $1^{st}$ respondent to pay the applicant’s salaries and benefits owing to him as well as damages in lieu of reinstatement. Both parties being dissatisfied with the award filed applications for review and an appeal to this court. The two applications for review were consolidated and heard before this court on $3^{rd}$ March, 2020. On $5^{th}$ of June 2020 the court handed down a judgment as follows;

(i) The applicant’s application for review be and is hereby dismissed.
(ii) $1^{st}$ respondent’s counter application for review is hereby granted.
(iii) The arbitration award issued by $2^{nd}$ respondent dated the $25^{th}$ of October, 2017 is hereby set aside.


The applicant was aggrieved with the judgment. He filed an application for leave on 6th July 2020. The application was opposed by the 1st respondent. Heads of argument having been filed by both parties the matter was set down for hearing on the 1st of November, 2020. On the hearing date applicant made no appearance. The 1st respondent was represented by counsel. The court having established that the Sherriff had failed to locate the address as provided by the applicant as it did not exist, the court proceeded to issue a default judgment in favour of the 1st respondent. In so doing the court formulated the view that by providing a non-existent address the Applicant was not keen to pursue his matter. The applicant however filed the present application seeking a rescission of the default judgment as entered by the court.

**Preliminary objections**

Both parties raised preliminary objections. It is incumbent upon the court to determine these first. Applicant has raised as a preliminary objection that the 1st respondent has not filed a Notice of Opposition to the application as required by the Rules of this court. He further contends that neither him nor his legal counsel were served with the Notice of Opposition. The Applicant further submits that he did approach the Registrar to establish if the Notice of Opposition had been filed and the file could not be located. On the 8th of April 2021 he wrote to the registrar informing him that as he had not received any Notice of Opposition the matter was supposed to proceed as unopposed. Applicant submits that he wrote again on 15th of July, 2021. On 16th of July 2021 the Registrar wrote back to advise that the Notice of Opposition had been filed on the 3rd of March 2021 but there had been no proof of service filed with the court. The Registrar had consequently on 21st of May 2021 issued a Document Summons to the 1st respondent for the 1st respondent to furnish the court with the Certificate of Service of the Notice of Opposition. The applicant’s submissions is that 1st respondent never complied with the document summons. The applicant’s submission is therefore that the 1st respondent is technically barred from being heard in this matter.

The 1st respondent has also raised two preliminary objections of its own. The first objection is that the current application has been filed outside the time limits as stipulated in the Court Rules. 1st respondent submits that in terms of Rule 40 an application for rescission must be filed within
 21 days of one becoming aware of the judgment/order sought to be rescinded. The applicant having in paragraph 28 of his Founding Affidavit conceded to having become aware of the existence of judgment on the $20^{th}$ of November, 2020 the 21 days expired on or about $20^{th}$ of December, 2020. As the present application was only filed on the $23^{rd}$ of December, 2020 the application was consequently filed out of time. $1^{st}$ respondent further contends that Rule 22 of this Court Rules is a peremptory rule and as such it must follow that the applicant having failed to comply with the particular rule there is no proper application before the court.

In oral submissions $1^{st}$ respondent counsel emphasised that the applicant having failed to seek condonation for the material breach of the Rules, after being alerted through $1^{st}$ respondent heads of argument, the court ought to simply dismiss the application as a nullity.

The second preliminary point as taken by the $1^{st}$ respondent is that the applicant is in any event barred for failure to file heads of argument on time. The $1^{st}$ respondent submits that the applicant was legally represented from the inception of this application. A Notice of Assumption of Agency had been filed by Lawman Chimiruwo and Partners on $23^{rd}$ of December, 2022 and served on the same date on the $1^{st}$ respondent. The $1^{st}$ respondent’s submission is that the same legal practitioners have not to date filed a renunciation of agency as required by the Rules. It must follow therefore that Rule 26(1) of the Labour Court Rules, 2017 applies. In terms of the Rule applicant’s Legal Practitioners having failed to file heads of argument applicant has no right to make submissions before the court. It is $1^{st}$ respondent further contention that even if it were to be accepted that applicant’s legal practitioners had properly renounced agency the applicant would still be required to file heads of argument in terms of Rule 26(5) of the Rules failing which the applicant would be barred before the court.

Respondent counsel also drew the court’s attention to the provision in Rule 46 of the Rules. He submitted that even if it were to be accepted that the applicant was still represented by legal practitioners the legal practitioners had failed to file heads of argument. The matter ought therefore to be deemed as abandoned. Although Rule 46 specifically provided for the Registrar to formally inform the parties of the abandonment $1^{st}$ respondent’s view however is that this is purely administrative the important thing is that the matter becomes automatically abandoned by virtue
 4 of the expiry of the time limits as set in the Rules. The pronunciation of the Registrar simply follows on an abandonment already done. The 1st respondent’s prayer is that this court ought to find therefore that the matter having been abandoned there is consequently no proper application before the court.

Evaluation

I find it convenient to address initially the 1st respondent’s first point in limine. This is due to the fact that the point is attacking the validity of the application that is before the court. If the court should find that there is merit on this point then the court will issue an appropriate order striking off the matter from the roll. There will no longer be any need in that instance for the court to proceed to determine the rest of the grounds of objection as taken in these proceedings.

WHETHER THE APPLICATION HAS BEEN FILED OUT OF TIME

The 1st respondent has submitted that the application was filed outside the period as prescribed by the Rules. For reasons as enunciated somewhere in this judgment the applicant does not agree.

In terms of the Labour Court Rules, 2017 Statutory Instrument 150 of 2017 an application for rescission should be filed within 21 days after which the party had knowledge of the determination, order or judgment. Rule 40 of the Labour Court Rules, 2017, Statutory Instrument 130 of 2017 reads as follows;

“An application for rescission or alteration of a determination, order of judgment of the court or Judge on any of the grounds specified in the Act shall be made within twenty-one days from the date after the party has had knowledge of the determination, order or judgment”.

The applicant in casu, avers that he had knowledge of the order upon his collection of the order on the 23rd of November, 2020. He submits that he had received a phone call from a court official on Friday 20th of November, 2020 advising him to come and collect the order on the following Monday, the 23rd of November, 2020. The 1st respondent’s argument however is that the court ought to find that the applicant had knowledge of the order on the 20th of November, 2020 when he received the phone call from the court. On this basis 21 days as calculated from that
 5 date would expire on the 20th of December, 2020. The present application having been filed on 23rd of December, 2020 the application was therefore clearly filed out of time.

The dispute between the parties centres around the meaning of the words “after the party has had knowledge of the determination, order or judgment”. The parties clearly have taken a divergent position. Applicant’s view is that the words have to be interpreted to mean the date after which the party receives the order/determination/judgment and therefore becomes knowledgeable of the outcome of the matter. The 1st respondent position on the other hand is that the words must be read to refer to the time when the applicant became aware of the existence of the determination, order or judgment.

I am inclined to agree with the interpretation as ascribed to Rule 40 by the applicant. The words have to be interpreted to mean the date after which the party has actually received the determination, order or judgment and has knowledge of the outcome of the matter.

It must follow therefore that the applicant having received the determination, order or judgment on the 23rd November, 2020 his application for rescission had to be filed 21 days after that date. In calculating 21 days after that date the dies induciae were supposed to expire on ……………………… It follows that the present application which was filed on 23rd of December, 2020 cannot be said to be non-compliant with Rule 40 of the court rules. The first point in limine as taken by 1st respondent stands as dismissed.

**WHETHER THERE IS A VALID NOTICE OF OPPOSITION**

The applicant contents that the 1st respondent failed to file its Notice of Opposition within 10 days as contemplated by the Rules of this court. The 1st respondent does not agree. 1st respondent has submitted that due to supervening circumstances it was unable to file within ten days. There was during the period measures adopted nationally to prevent the spread of COVID-19 pandemic.

In particular **Practice Directions 1, 3 & 4 of 2021** were issued by the Chief Justice which had suspended the filing of court documents. The courts were suspended initially from 5th of January, 2021 to the 3rd of February, 2021. The period was further extended to cover the period from 15th of February, 2021 to the 1st of March, 2020. Normal court operations had only resumed on $2^{nd}$ March, 2021 in terms of **Practice Direction 5 of 2021**. The $1^{st}$ respondent had proceeded to file and serve its Notice of Opposition on the applicant on the $8^{th}$ of March, 2021, well within the time limit. The $1^{st}$ respondent’s contention therefore is that the preliminary point as taken ought to be dismissed. The $1^{st}$ respondent further contends that a Certificate of Service of the Notice of Opposition was also duly filed with the court and it forms part of the record.

The applicant’s counter position is that the Notice of Opposition was not filed in compliance with the Rules of this court. Despite the Rules clearly providing for the Notice of Opposition to be filed within ten days $1^{st}$ respondent had not so complied. Applicant had on several occasion approached the Registrar to establish whether the document had been filed. The Registrar had also through Document Summons issued on $21^{st}$ May 2021 requested $1^{st}$ respondent to furnish the court with Certificate of Service of the Notice of Opposition. There was no response forth coming from the $1^{st}$ respondent. It was only on the $16^{th}$ of July, 2021 when applicant was advised by the Registrar that there was a Notice of Opposition which had been filed on $3^{rd}$ of March, 2021. The $1^{st}$ respondent however had not filed a Certificate of Service of the Notice of Opposition with the Registrar. The applicant’s position is that the $1^{st}$ respondent having clearly failed to comply with the Rules is therefore barred and the court ought to proceed on that basis.

It is common cause that the $1^{st}$ respondent was required to have filed its Notice of Opposition within ten days of receiving the application. The records shows that the application for rescission was filed on $23^{rd}$ of December 2020. The $1^{st}$ respondent was clearly required to file its response within ten days of that date. The $1^{st}$ respondent however only filed its response on $3^{rd}$ of March, 2021. Does the reason tendered for the delay justify the late filing in order to validate the Notice of Opposition filed of record?

It is indeed correct as submitted by $1^{st}$ respondent that the COVID-19 national lockdowns in early 2021 resulted in the closure of court operations, between $30^{th}$ March, 2020 and $11^{th}$ May, 2020 and then from $5^{th}$ January, 2021 to $1^{st}$ March, 2021. Through several Practice Directions issued by the Chief Justice during this period only urgent matters were set down, heard and determined. The courts however resumed full sessions between $11^{th}$ May, 2020 and $4^{th}$ January,
 2021 and between $1^{st}$ March, 2021. Reference is made to the Practice Directions 1, 3, 4 and 5 copies of which were tendered by $1^{st}$ respondent. See also the judgment in *Chrispen Vundhla* (2) *David Muchinguri v Innsor Africa Bread Company Zimbabwe (Private) Limited* (2) *Maxwell Sabalika N.O.* SC 14 of 2022. The application for rescission having been filed on $23^{rd}$ of December, 2020 when were the ten days due to expire taking into account the lockdown periods. A rough calculation will show six days fell on the $4^{th}$ of January, 2021. The next day i.e. the $5^{th}$ of January, 2021 saw courts being closed until the $1^{st}$ March, 2021. The $1^{st}$ respondent having then filed its Notice of Opposition on $3^{rd}$ March, 2021 after resumption of court it is clear that the Notice of Opposition was filed within ten days. The $1^{st}$ respondent clearly filed the Notice of Opposition within the time limit as provided by the Rules.

The preliminary point as taken by applicant stands as dismissed.

**WHETHER HEADS OF ARGUMENT WERE FILED OUT OF TIME**

The $1^{st}$ respondent has raised as a second preliminary point that the applicant did not file heads of argument in time and in such circumstances the matter should be regarded as abandoned by reason of **Rule 46** of the Court Rules. The $1^{st}$ respondent also contends that applicant similarly breached **Rule 26** of the Labour Court Rules in that being legally represented at the material his legal practitioner had failed to file heads of argument within ten (10) days of receiving $1^{st}$ respondent’s Notice of Opposition. The $1^{st}$ respondent further contends that the applicant received Notice of Response on the $8^{th}$ of March, 2021 but only filed heads of argument on the $21^{st}$ of December, 2022 and served them on it on the $9^{th}$ of January, 2023 through the applicant himself.

The $1^{st}$ respondent further submits that both **Rules 26 and 46** being couched in peremptory norms had to be complied with by the applicant. The applicant having clearly failed to file heads of argument on time the application had to be deemed as abandoned. The $1^{st}$ respondent has referred the court in its heads to an authority in *Nkisimane & Ors v Santam Insurance Company Limited* 1978 (2) SA 430 at 434 where the court emphasised that a statutory requirement which is construed as peremptory has to be complied with and a failure to so comply results in a nullity. The $1^{st}$ respondent in the premises prays for the dismissal of the application with costs on a legal practitioner and client scale.

The applicant in counter submits that his legal practitioner was never served with the Notice of Opposition. The Notice of Response should have been served on his legal practitioner of the record, Lawman Chimiruwo & Partners as they had not renounced agency. The applicant submits that the Rules of Court clearly provide for the instances when a legal practitioner can renounce agency. The $1^{st}$ respondent has failed to explain why they chose to serve on the address as given. $1^{st}$ respondent’s counsel, in response, submitted that service had been effected on the address as given by the applicant himself at the time of filing his application. He also urged the court to take notice that at the material time it was within the public knowledge that Lawman Chimiruwo was no longer practising, having been de-registered. $1^{st}$ respondent counsel further submitted that even if the court were to find that there was no proper service this would not result in the automatic bar of the $1^{st}$ respondent. Under Rule 26 of the Court Rules, a respondent who has failed to file a Notice of Response is allowed to appear and show good cause why the notice of response was not filed timeously. The court has a discretion then to either proceed to determine the matter on the merits or grant a postponement in the matter to allow the defaulting respondent an opportunity to comply with the Rules. Counsel also submitted that a bar would only come into operation where a respondent party is also in default of appearance on the date of hearing of the matter. Counsel referred to Rule 29(b) of the Court Rules for this proposition.

Rule 25(c) of the Labour Court Rules provides for assumption of agency by a legal practitioner in the case where a party is represented by a legal practitioner. Sub rule 2 of the same Rule 25 provides for renunciation of agency by a legal practitioner. It is clear that in casu, Messrs Lawman Chimiruwo and Partners assumed agency on the $23^{rd}$ of December, 2020. There was no renunciation of agency filed at any stage. It must follow that at the material time $1^{st}$ respondent purported to serve Notice of Response the same law firm remained applicant’s legal practitioners. The fact that the principal, Lawman Chimiruwo may have at the material time be deregistered, such information having been in the public domain, is neither here nor there. The law firm still remained in operation. It is also trite position of law that service which is directly effected on a party where the party is legally represented is irregular service. It must follow that the $1^{st}$ respondent having irregularly served the Notice of Response on a party other than the applicant’s legal representative the $1^{st}$ respondent breached the Rules of the Court. The court must consequently find that $1^{st}$ respondent failed to file its Notice of Response on the applicant.
 9


In terms of **Rule 29** however a party is not automatically barred for failure to file a Notice of Response in terms of **Rules 14, 19** and **20**. **Rule 29** provides that the matter shall nevertheless be set down and at the date of hearing the defaulting party may appear and show good cause for the failure to file a Notice of Response whereupon the court may, among, other options, postpone the matter to enable the defaulting party to comply or proceed to determine the matter.

The $1^{st}$ respondent having appeared before the court and indicated its reasons for the failure to properly file a Notice of Response (the reason tendered being that they believed applicant was no longer represented by Lawman Chimuriwo and so they served on the given address in the application) the $1^{st}$ respondent sought the indulgence of the court to condone the departure from the Rules in the manner of service. The $1^{st}$ respondent having also filed a Notice of Response which already forms part of the record prayed for the Notice of Response to be made part of the record. It is the court’s view that the $1^{st}$ respondent has shown good cause in its explanation of the default. It was however remiss of the $1^{st}$ respondent to serve on a party other than the Applicant’s legal representative in the circumstances. Condonation is therefore extended to $1^{st}$ respondent for the failure to serve Notice of Response and the Notice of response which is already filed of record is duly made part of the record. Having come to this conclusion it must follow that the arguments proffered by $1^{st}$ respondent in regards barring (**Rule 26**) and abandonment (**Rule 40**) fall away.

Rule 26 of the Rules provides that heads of argument by an applicant who is represented should be filed ten days of receiving a Notice of Response. Applicant’s argument is that as his legal practitioners of record were not served he could not therefore file heads of argument on time. The court having extended condonation to the $1^{st}$ respondent for the breach of the rules in the manner of service the court is inclined to also extend condonation to the Applicant in view of the explanation as tendered. In so doing the court is fully cognisant of the trite position at law that labour matters ought not to be decided on technicalities but that irregularities in procedures should be remedied in order for the court to proceed to determine the matter on the merits. See *Dalny Mine* vs *Banda 1999(1)ZLR220* It is also the court’s considered view that the applicant has a good case on the merits.

The Applicant clearly deserves a day in court. The $1^{st}$ respondent’s defence to the application is also one that is not without any prospects. In the circumstances the court grants an indulgence to both parties. The court hereby condones the $1^{st}$ respondent for the failure to file
 10 a Notice of response and condones the applicant for the failure to file heads of argument timeously.

This will allow the court to proceed to determine the matter on the merits.


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IT IS ACCORDINGLY ORDERED AS FOLLOWS:

1. The applicant’s point in limine be and is hereby dismissed.
2. The 1st respondents two points in limine be and are hereby dismissed; and
3. The Registrar of this court is directed to re-set the matter for continuation on the earliest available date.

MUSARIRI J. I agree

Kantor and Immerman, respondents’ legal practitioners
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