Dr. Cuthbert Elkanah Dube v Premier Service Medical Investments (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/809/14
HELD AT HARARE ON 21st NOVEMBER, 2014
CASE NO LC/APP/H/536/14
AND 5th DECEMBER, 2014
JUDGMENT NO. LC/H/809/14
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO.LC/H/809/14

HELD AT HARARE ON 21st NOVEMBER, 2014   CASE NO LC/APP/H/536/14

AND 5th DECEMBER, 2014

In the matter between:-

DR. CUTHBERT ELKANA DUBE					Applicant

And

PREMIER SERVICE MEDICAL INVESTMENTS

(PRIVATE) LIMITED							Respondent

Before the Honourable G. Mhuri, Judge

For Applicant	: 	Mr. J. Samkange (Legal Practitioner)

For Respondent: 	Mr. B. Museba (Legal Practitioner)

MHURI J.:

This is an application for rescission of judgment.

The historical background which gives rise to this application can be summarized as follows:-

On the 19th May, 2014 Applicant through his legal practitioner filed, two applications for review of the Respondent’s decision to withdraw his salary and benefits.

The applications for review were opposed by Respondent, who through its legal practitioner filed its notice of opposition on the 5th June, 2014.

In terms of Rule 19(1) of the Rules of this Court Statutory Instrument 59 of 2006 (the Rules) Applicant was obliged to file his heads of argument within 14 days of receipt of Respondent’s notice of response.

He was supposed to have filed the heads of argument by the 25th June, 2014.

It is common cause that Applicant did not meet this date.

As a result, on the 1st July, 2014 Respondent proceeded to file an application for the dismissal of the Applicant’s applications for review.  This was in terms of Rule 19(3) (a) of the Rules.

On the 18th and 30th July, 2014 Applicant filed his Heads of Argument with the Court.  This was already out of time.

On the 15th August, 2014, Respondent’s application was heard by the Judge in chambers who granted the application.  Applicant’s applications were dismissed with costs for failure to file heads of argument within the time limits stipulated in the Rules.

It is this Order that Applicant wants rescinded so that his applications for review are heard and determined on the merits.

It was argued on behalf of Applicant that the judgment obtained by Respondent was based on a technicality that Applicant had not filed his Heads of Argument timeously.  He argued that he was not in wilful default and that he has a good defence or case before the Court.  He argued that Respondent had perpetrated an unfair labour practice by withdrawing his salaries and benefits and that the delay in filing the Heads of Arguments was only 4 days.  He argued further that by the time the Order was granted, he had filed the Heads of Argument.

Reliance was made on the cases of:-

ZIMBANK V MASENDEKE 1995 (2) ZLR 400 (S)

DALNY MINE V MUSA BANDA 1999 (1) ZLR 220(S)

It was Applicant’s legal practitioner other argument that the Labour Court has inherent jurisdiction, as such it was proper for him to approach this court directly raising the unfair labour practice by Respondent.  He was at pains to support this argument and referred to the Rules, (Statutory Instrument 59 of 2006) as his authority.

Section 92C of the Labour Act [Chapter 28:01] (the Act) provides for rescission of any order or determination by the Labour Court.

The Section reads:-

“Subject to this section, the Labour Court may, on application, rescind or vary any determination or order-

Which it made in the absence of the party against whom it was made or

…

…”

Applicant has approached this Court in terms of the above section seeking rescission of this Court’s Order of the 15th August, 2014.

The Rules provide for the procedure that should be followed by parties.  In particular Rule 19(1) provides:-

“Where an Applicant or Appellant is to be represented by a legal practitioner at the hearing of the application appeal or review, the legal practitioner shall –

Within fourteen days of receiving a notice of response to the application appeal or review, lodge with the Registrar heads of argument clearly outlining the submissions he or she intends to rely on …”

In compliance with this Rule Applicant should have filed his Heads of Argument and within 14 days of the 5th June, 2014.  He should have done so by the 25th June, 2014.  It is not correct that he was out of time by 4 days but by not less than 17 days.

Rule 19(3) (a) provides for the procedure to be taken by a party when sub-rule 1 has not been complied with.

It states:-

“where heads of argument are required to be lodged in terms of sub-rule (1) or (2) are not lodged on behalf of the Applicant, Appellant or Respondent ….within the period or at the time specified in those provisions the registrar shall nevertheless set down the application, appeal or review for hearing in terms of rule 21 unless at any time before the matter is set down, the party who is not in default applies to a President of the Court in chambers for the application, appeal or review to be dismissed or granted as the case may be.”

For an application made in terms of sub-rule 3(a), it is not mandatory that notice be given to the other party.

This sub-rule reads:-

“An application against a defaulting party under sub-rule (3) (a) may be made without notice to be defaulting party.”

A party would therefore be within his right to proceed to file his application without first of all reminding the other party that they should file Heads of Argument.

The argument by Applicant that Respondent should have first, either through a phone call or by letter reminded him that his heads of argument are now due cannot be accepted.  It cannot be accepted that Respondent by so doing, snatched a judgment.

When a party does not make an application in terms of sub-rule 3(a), in terms of sub-rule 3(b) the party who is in default of filing Heads of Argument is barred.

Sub-rule 3(b) provides-

“The defaulting party shall (if no application under paragraph (a) is made or granted) be barred and the Court may deal with the matter on the merits.”

Clearly therefore the effect of the bar is that, when the Registrar sets the matter down for hearing, the defaulting party, in casu the Applicant, cannot be heard.

What is the course of action a barred party should take?  Certainly it’s not to apply for rescission of the order or judgment.

What should have exercised the applicant’s mind in this case is the effect of the rescission of the judgment. What will be the status of the case in the event that one succeeds in their application for rescission?

The answer is clear, the parties or case reverts to the position where they were in terms of Rule 19(3) (a) and (b) namely that:-

Heads of Argument were not filed timeously by Applicant.

The Registrar shall set down the application for hearing.

Applicant shall be barred and cannot be heard until the bar has been removed through an application for the upliftment of the bar.

The procedure Applicant ought to have taken is apply for the upliftment of the bar operating against him and if granted apply for rescission of the order

Firstly, on this note, Applicant’s application cannot be granted.

Secondly the application fails on the basis that, Applicant has no good case.  It was submitted and admitted by Applicant that what he is complaining about is an unfair labour practice by Respondent.  He is saying by withdrawing his salary and benefits, Respondent committed unfair labour practices.

Does the Labour Court, as a Court of first instance, have jurisdiction to deal with unfair labour practices?  Applicant’s legal practitioner argued that the Court is at par with the High Court and has inherent jurisdiction.  He was however unable to provide authority for this.  The Rules 2006 he referred to, do not confer inherent jurisdiction on the Court at all.

As  at  the  time  of  writing  this  judgment

(26th November, 2014) Applicant’s legal practitioner had not filed the authority which he promised to file by

1 pm on the date of hearing (21st November, 2014).

Section 93 of the Act provides for the course to be taken when an unfair labour practice has been perpetrated.  The Labour Court will deal with the matter after it has gone through the process outlined in Section 93.

Applicant jumped the gun by directly approaching this Court.  Consequently he has no good case.

Thirdly, Applicant’s legal practitioner submitted that in applications of this nature a party has to show: - that he was not in wilful default and that he has a good defence or case

This principle as enunciated in the ZIMBANK V MASENDEKE (supra) is accepted, however Applicant in all his submissions did not address why he was in default, why he did not file his Heads of Argument timeously in compliance with the Rules.  He chose however to push the blame on Respondent, stating that Respondent should have reminded him that the Heads of Argument were due instead of rushing to apply for the dismissal of the application in terms of Rule 19(3)(a) and (4) – thereby snatching at a judgment as it were.

As alluded to, Respondent was not obliged to remind Applicant.  Applicant’s legal practitioner should have been diligent enough and complied with the Rules timeously.

Applicant’s failure to address why he failed to comply with the Rule was detrimental to his case.  On this note as well, the application is doomed to fail.

It is therefore ordered that the application for rescission of this Court’s order of the 15th August, 2014 be and is hereby dismissed with costs.

Venturas and Samukange–Appellant’s Legal Practitioners

Muzangaza, Mandaza and Tomana–Respondent’s Legal Practitioners