Felix Chinodyamari v CBZ Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/51/2016
HARARE, 21 JANUARY 2015 &
5 FEBRUARY 2016
CASE NO LC/APP/H/249/2014
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/51/2016

HARARE, 21 JANUARY 2015 & 			      CASE NO LC/APP/H/249/2014

5 FEBRUARY 2016

In the matter between

FELIX CHINODYAMARI						APPLICANT

Versus

CBZ LIMITED							RESPONDENT

Before the Honourable R F Manyangadze J

(IN CHAMBERS)

MANYANGADZE J:

This is an unopposed Chamber Application for granting of an appeal, made in terms of Rule 19 (3)(b) of the Labour Court Rules, Statutory Instrument 59 of 2006 (“the Rules”).

Ordinarily, this is the sort of application that could be simply disposed of by way of a court order, without the need to write a judgment. However, the factual background to this application reveals some procedural issues that, in my view, necessitate reasons for judgment.

The applicant filed his application on 17 June 2014 under Case No LC/H/APP/249/14. This was after the respondent failed to file heads of argument in the appeal matter, filed under Case No LC/H/147/13. The respondent had been served with the applicant’s heads of argument on 14 March 2014.

The chamber application was referred to me by the Registrar on 29 August 2014, with a note that reads:

“Main matter is set down for hearing on 11 September 2014”.

At the hearing on 11 September 2014, the parties appeared before JUSTICE MAKAMURE, as seen in the appeal record. This record shows that Mr Hwacha, for the respondent, indicated that they intended to apply for condonation and needed time to file the necessary documents. The record also shows that the respondent filed its heads of argument (in the appeal) on 6 August 2014, which was five months out of time. It was also pointed out, at that hearing, that there was a pending application in terms of Rule 19 of the Rules. For these reasons, the appeal matter was postponed for two weeks, with the consent of both parties.

Nothing happened after that.

The record (in the application matter) shows that on 8 October 2015 the applicant’s legal practitioners wrote a letter to the Registrar. The letter, inter alia, reads:

“We filed an application in terms of Rule 19 (3) of the Labour Court rules on the 17th of June 2014 and served same on Messrs Dube Manikai and Hwacha. The matter was set down for hearing on the 11th of September 2014 before Honourable Judge Makamure. On the date of the hearing Mr Hwacha requested time to respond to the application for the appeal to be allowed since he was barred for failure to file heads. Timelines were agreed as the record will show but more than one year down the line nothing has been done.

We therefore kindly request that our application filed under LC/H.APP/249/14 be referred to the judge for determination since it has not been opposed and the respondent remains barred.”

It seems to me the letter is showing some mix up between the appeal matter and the application. What was set down for hearing on 11 September 2014 was the appeal matter, in respect of which the parties appeared before JUSTICE MAKAMURE. For the reasons already indicated, the matter was postponed, with time lines agreed to by the parties.

As matters stand now, the applicant persists with his application for granting of his appeal, in terms of Rule 19 (3)(b) of the Rules.

What is peculiar about this application is that it was made in terms of Rule 19 (3)(b), instead of Rule 19 (3)(a) of the Rules. There is, in my view, a clear difference between the two paragraphs.

Section 19 (3) reads:

“(3)	Where heads of argument that are required to be lodged in terms of subrule (1) or (2) are not lodged on behalf of the applicant, appellant or respondent, as the case may be, 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;

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.”

In terms of paragraph (a), the applicant seeks a default judgment before set down of the matter. It is in terms of this paragraph that the applicant should have proceeded. Instead, he specifically cited paragraph (b) in his application.

In terms of paragraph (b), the matter would have been set down, and, at the hearing, the defaulting party (in this case the respondent) is barred. The court then proceeds to “deal with the matter on the merits.” In other words, it hears submissions from the non-defaulting party only (in this case the applicant). It then makes an appropriate determination, based on the applicant’s oral submissions, and other submissions he would have placed on file. JUSTICE KACHAMBWA explained this position in Dyno Nobel (Pvt) Ltd v Dyno Nobel Workers Committee LC-H-170-2012 as follows:

“The appellant in this case was barred from filing heads of argument (19 (3)(b) of the Labour Rules). The court will proceed to deal with the matter on the merits. The respondent addressed the court. The matter will be dealt with as if it were unopposed - Rule 21 (b) refers. The court will only deal with the issue as raised in the grounds of appeal raised in the notice of appeal.”

In the instant case, the applicant seeks an order in terms of a provision, Rule 19 (3)(b), which sets out what happens when the matter is set down for hearing. The remedy he seeks is available under Rule 19 (3)(a). What this means is that his application has been made in terms of the wrong provision and is thus fundamentally defective. He seeks an order which the court cannot competently grant in terms of the Rule cited. In the circumstances, the application would have to be struck off the roll, without delving into the merits thereof.

It is accordingly ordered that:

The chamber application in terms of Rule 19 (3)(b) of the Rules be and is hereby struck off the roll.

Each party bears its own costs.