Lighton Dube v Delegation of the European Union to the Republic of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/152/2016
HARARE, 1 MARCH 2016 &
18 MARCH 2016
CASE NO LC/H/APP/1320/2015
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/152/2016

HARARE, 1 MARCH 2016 &			   CASE NO LC/H/APP/1320/2015

18 MARCH 2016

In the matter between

LIGHTON DUBE							APPLICANT

Versus

DELEGATION OF THE EUROPEAN UNION 			RESPONDENT

TO THE REPUBLIC OF ZIMBABWE

Before the Honourable L F Kudya J

For the Applicant	H Chitima  (Legal Practitioner)

For the Respondent     C Mucheche  (Legal Practitioner)

KUDYA J:

This matter was set down as an application for condonation of late filing of heads of argument and upliftment of bar. It is a case which makes very sad listening. In its pre-hearing discussion with the parties, the court explained to the lawyers then present that, the manner in which the employer had prosecuted its case all through left a lot to be desired especially when it came to the observance of time lines as set down by the rules of court.

The court therefore did not mince its words and told counsel for the applicant that the approach to the matter spoke to a clear abuse of court processes by the employer.  The court was therefore of the view that it would not want to entertain argument on the matter as it was of the firm view that the applicant was abusing the court if one takes a closer look at how the appellant has been dealing with its case. When the parties appeared before the court the applicant indicated that it had a postponement application to make. It is only this application which is the subject of this judgment.

The background to the matter is that in 2011 the arbitrator made an award in favour of the employee (now the respondent). In 2012 the employer the now applicant applied for a review of the arbitral award. It however failed to file its heads of argument on time until about three year’s later. It then presented before a judge arguing that its lawyers had encountered administrative problems vis change of staff so for the three years it could not file its heads of argument.

The judge in her judgment handed down on 16 October 2015 expressed dismay at the casual approach adopted by the employer in the prosecution of its appeal. She however, indulged it and gave it fourteen days from the date of her judgment within which they had to file their heads. The employer did not comply with the judge’s award but instead on 6 November 2015 filed another condonation application which is the application which was meant to be heard on the date when the instant postponement was sought.

By the time it did that it was also out of time so it on 17 February 2016 filed yet another condonation application where it sought to be pardoned for the late filing of the application for condonation of 6 November 2015. It is this condonation application which the employer used to request that the court bears with it and grant a postponement so that the 17 February 2016 application be heard first before the 6 November 2015 application.

The respondent opposed the application and prayed that the least indulgence that the court could grant was to strike off the matter with costs on a higher scale for the date when the postponement was sought. He argued that the history outlined above was clear testimony of a sluggish approach to the matter. It emphasised fact that the counsels for the parties had a duty to protect the court’s integrity by dealing with matters diligently. He therefore persisted in the striking off of the matter with costs on a higher scale. The respondent agreed that procedurally the 17 February 2016 matter had to be disposed of before the 6 November 2015 one. He thus persisted in his striking off prayer with costs on a higher scale.

On the other hand the applicant persisted that the postponement application was merited on account of the practical difficulty of disposing of the November 2015 matter before the February 2016 one. It therefore persisted in the postponement application and tendered costs on the normal scale.

As indicated by the history of the case above it is apparent that the applicant lacks seriousness in prosecuting its case. It argues that it failed to comply with the fourteen day reprieve it had been given because the judgment came to its attention a day before the dates dies induciae for the reprieve expired. It is however worth noting that judgment hand downs are communicated to the parties at least two days prior to hand down date and some notices are pasted on the court corridors notice boards.

Further the order was clear that it had to be satisfied from date of that judgment not from the date of its receipt (my emphasis). It is therefore clear that the excuse that the employer was called to collect the judgment a day before its expiry is without substance.

As stated earlier above the history of the matter speaks to a clear abuse of court process and the courts cannot be used to abet such. The court is satisfied that the postponement application is not merited and that the tender of costs on ordinary scale falls short of the message to be sent to the applicant to take the courts seriously.

In the result the court is satisfied that this is a good case for striking the matter off the roll with costs for today on a higher scale.

IT IS ORDERED THAT

The application for condonation of 16 November 2015 being prematurely before the court on account of another application of 17 February 2016 which has to be determined first the 2015 application be and is hereby struck off the roll. The applicant to pay today’s wasted costs on a higher scale.

Mbidzo, Muchadahama & Makoni, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners