Collet Matsika v Environmental Management Agency

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/459/2014
HARARE, 06 MAY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/459/2014

HARARE, 06 MAY 2014  		     	             CASE NO. LC/H/1054/13

AND 18 JULY 2014

In the matter between:-

COLLET MATSIKA							Applicant

AND

ENVIRONMENTAL MANAGEMENT AGENCY			Respondent

Before Honourable R. Manyangadze, J

For Applicant		-	R. Matsikidze (Legal Practitioner)

For Respondent		-	G. Chingoma (Legal Practitioner)

MANYANGADZE, J:

This is an application for condonation for late noting of a cross-appeal.

The brief factual background is that the applicant was employed by the respondent as Financial Accountant.  He was dismissed for misconduct after disciplinary proceedings held in terms of the Labour (National Employment Code of Conduct) Regulations Statutory Instrument 15 of 2006.  (National Code).

The matter went for arbitration, following procedures provided for in the National Code.  The arbitrator, in his award dated 10 December 2013, upheld the verdict of guilty, but set aside the penalty of dismissal.  The arbitrator ordered the reinstatement of the applicant, without pay and benefits for the period he was on suspension.  It appears the penalty consists in the denial of pay and benefits covering the suspension period.

The arbitral award resulted in both parties appealing.  The respondent (appellant in the main appeal) filed an appeal against the setting aside of the penalty of dismissal and its substitution with an order of reinstatement.  The applicant (respondent in the main appeal and appellant in the cross-appeal) seeks condonation to file a cross-appeal against the verdict of guilty.

At the hearing of the application, the applicant raised a point in limine.  It was to the effect that the arbitral award, which is still operational, has not been complied with.  This being the case, the respondent is coming to court with dirty hands and in that state has no right of audience with the court.

The applicant’s point in limine is peculiar, considering the stage at which it has been raised.  This is an application for condonation for late noting of a cross- appeal.  If the application is granted, the applicant will proceed to note his cross- appeal.

At the hearing of the main appeal, the issue of dirty hands will most probably arise again, if by then respondent has not complied with the arbitral award, or obtained interim relief.  I say so because upholding the point in limine affects only this application, which is the one before the court.  It cannot properly be upheld in respect of the main appeal, as that matter is not the one before the court now.  The court can only make an order or ruling in respect of a matter it is seized with.  What this means is the same point in limine is likely to arise, once the court is seized with the main appeal. This will of course depend on the status of the respondent’s compliance at the time the appeal is heard.

It seems to me more convenient to deal with this issue, that is, of respondent’s alleged contempt, when the main appeal is heard, if by that time it is still an issue.  The hearing of the cross-appeal will depend on whether or not the application for condonation is granted.  The applicant is seeking forgiveness for non-compliance with the court’s rules.  That forgiveness is yet to be granted.  The issue of the other party’s non-compliance can then be delved into, if necessary, once the applicant’s non- compliance is resolved in this interlocutory application.

I have therefore refrained from delving into the arguments raised on the dirty hands issue, as these same arguments are likely to be raised at the appeal hearing.  As already indicated, I cannot deal with them vis a vis the appeal, as it is not before me yet.

The applicant’s right to have his cross-appeal heard depends on whether or not his application for condonation is granted.  It is not something guaranteed.  It seems to me, in the circumstances, more appropriate, convenient and expedient, to resolve that issue first.

It is accordingly ordered that;

The point in limine be and is hereby dismissed.

The Registrar is directed to reset down the application for condonation for the late noting of the cross-appeal at the next available date.

There is no order as to costs.

MATSIKIDZE & MUCHECHE, Applicant’s legal practitioners

DUBE, MANIKAI & HWACHA, Respondent’s legal practitioners