CMED (Pvt) Ltd v Samson Bande & 29 Others & Public Service Pension Fund

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/371/16
HELD HARARE 18TH MAY 2016
CASE NO
JUDGMENT NO LC/H/371/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/371/16

HELD HARARE 18TH MAY 2016				CASE NO LC/H/795/15

& 10 JUNE 2016

In the matter between:

CMED (PVT) LTD					Appellant

And

SAMSON BANDE & 29 OTHERS 			1st Respondents

And

PUBLIC SERVICE PENSION FUND			 2ndRespondent

Before The Honourable E Muchawa, Judge

For Appellant 			F F Hwenhira (Legal Practitioner)

For 1st Respondents		S Bande

For 2nd Respondent		Ms T S Musangwa (Civil Division)

MUCHAWA, J:

At the hearing of this appeal I heard submissions on the points in limine and reserved my ruling.  This is it.

The appellant filed its appeal on 28 August 2015 against an arbitral award.  The 2nd respondent who was immediately thereafter served with the notice of appeal, lodged its notice of response on 14 September 2015.  The first respondent only filed its notice of response on 23 September 2015.  Both notices of response were served on the appellant soon after filing with the Labour Court.

It was only on 7 January 2016 that the appellant filed what it termed “Appellant’s Preliminary Heads of argument.”

These heads of argument sought only to address a point in limine raised by the 2nd respondent that the appellant had cited a non-existent legal persona by citing the Public Service Commission Pension Fund.  They indicated that an application to amend the incorrect citation had been filed and detailed heads of argument would be filed once the amendment was granted.

The interlocutory matter relating to the applicant for amendment of the 2nd respondent was heard and disposed of  on 16 March 2016.  It was dismissed on account of non-compliance with Rule 19 (1) of the Labour Court Rules in that the appellant failed to file heads of argument within fourteen days of having received a response and for lack of merit.

In this current appeal the appellant’s Mr Hwenhira appeared without filing any further detailed heads of argument and seemed to have entered into an arrangement with Ms Musangwa for the 2nd respondent to seek a postponement.  This was opposed by the 2nd respondent who sought that the matter be disposed of in terms of Rules 19 (3) (b).

This ruling addresses the application for a postponement and the 2nd respondent’s prayer that the matter be disposed of in terms of Rule 19.

Applicant for postponement

Counsel for the appellant and the 2nd respondent did not show good cause why a postponement should be granted.

Ms Musangwa submitted that she had not been served with the appellant’s heads of argument as they were served directly on their client.  She also stated that she was not the one previously handling the file and was not even aware they had filed heads of argument and only learnt of this from the appellant’s counsel hence the request for a postponement.

Mr Hwenhira for the appellant was consenting to the application for postponement on the basis that they had received the 2nd respondent’s heads of argument which were filed on 11 May 2016 on 16 May 2016.  It was claimed that the appellant was not aware of the outcome of the application for amendment heard on 16 March 2016 and would need to file supplementary heads of argument.

Mr Bande, the 1st respondent opposed the application for postponement citing that the appellant was not seriously prosecuting its matter and that the 2nd respondent which was not a legal persona had no real interest in the finalisation of this matter.

This court looks with disdain at officers of the court who seem to collude in wasting the court’s time.  It is unacceptable that any legal practitioner worth her salt would come to court and expect the court to condone clear lack of diligence when its own time has been wasted in setting down a matter in the light of a concerted effort to clear backlog.  This is what counsel for 2nd respondent’s explanation amounts to.

Appellant’s counsel exhibits the same attitude.  An interlocutory matter which is important to the one in casu was heard and an order handed down ex tempore on 16 March 2016 and thereafter on 20 April 2016 dismissed the application.  Yet the legal practitioner comes to court claiming not to know the outcome of same.  Heads of argument were not filed in this particular matter and the interlocutory one up to the hearing.

Accordingly the application for a postponement is declined.

Heads of argument

The appellant did not file heads of argument within fourteen days of 23 September 2015 when it received the first respondent’s notice of response.

The appellant’s preliminary heads of argument were only filed on 7 January 2016 without seeking any condonaton for such late filing which was some three months late in terms of Rule 19 (1) (a).

In any event, the purported heads of argument do not clearly outline the submissions the appellant intends to rely on nor the authorities to be cited, in support of the appeal.  They simply state that an application for amendment has been made and detailed heads of argument will be filed.  This is contrary to Rule 19 (1) (a).

On the merits these are my findings

The second respondent is a non-existent legal persona.

The dispute between the parties (appellant and first respondent) arose out of an employment relationship and was referred to the arbitrator by a labour officer in terms of section 93 of the Labour Act [Chapter 28:01]

The arbitrator had jurisdiction to entertain the matter even though more than two parties were involved.  The purported 2nd respondent is a party who has an interest in the determination of this matter who could apply for joinder in terms of Rule 27  (2) of the Labour Court Rules, Statutory Instrument 59 of 2006.

The arbitrator correctly found that the appellant misrepresented facts to the 2nd respondent which facts prejudiced the 1st respondents and that appellant was therefore liable to make good the prejudice suffered.

Accordingly the appellant being barred in terms of Rule 19 (3) (b), the appeal is

dismissed for lack of merit.

Muringi Kamdewere, appellant’s legal practitioners

Civil Division of the Attorney General’s Office, respondents’ legal practitioners