Linet Mujuru v Alliance Insurance Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/211/14
HELD AT HARARE 4TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/211/14

HELD AT HARARE 4TH FEBRUARY 2014		CASE NO LC/H/812/12

& 11TH APRIL 2014

In the matter between:-

LINET MUJURU						Appellant

And

ALLIANCE INSURANCE COMPANY			Respondent

Before The Honourable B.T. Chivizhe, Judge

For Appellant 		Mr E.R. Samukange (Legal Practitioner)

For Respondent		Mr E  Muhlekiwa (Legal Practitioner)

CHIVIZHE, J:

This is a ruling on a preliminary point raised by Appellant.

The matter was initially placed before me on the 27 July 2013.  As Respondent’s Counsel had another matter before the Labour Court a postponement was sought at the instance of Respondent.  The court granted the request and issued an order in the following terms:

The matter be and is hereby postponed by consent of the parties.  (See relevant letter dated 25 June 2013.)

The parties are to file Heads of Argument in terms of Rules of Court.

The  Registrar is to thereafter set down the matter in consultation with both parties.

The Notice of Response to the appeal was consequently filed on the 19 June 2013 and served on the Appellant on the 20 June 2013.

On the 18th September 2013 the current Respondent filed an ex parte chamber application for the dismissal of appeal in terms of Rule 19 (3) (c) as read withRule 19 (4) of the Labour Court Rules, 2006.  The basis  for such application was that the Appellant had from the 27th June 2013 failed to file its Heads of Argument in terms of the Rules.

The chamber application was placed before my fellow Judge,

Muchawa, J.  On the 29th October 2013,after considering the application in chambers,Muchawa J granted an order in the following terms;

“Respondent’s heads of argument filed of record on the 21st March 2013 be considered as duly filed in terms of Rule 19 (1) of the Labour Court Rules.

Applicant proceeds to file its Heads of Argument within 14 days of this order.

Thereafter the Registrar proceeds to set this matter for hearing on the merits.

There is no order as to costs.”

The Registrar thereafter set down the matter for hearing on the merits.

On the 4thFebruary 2014 when the parties appeared before me, Mr Samukangetook a preliminary point.  His submission was that the Heads of Argument filed by the Respondent on the 24th January 2014 were improperly before the Court.  After the order by Muchawa, J the Respondent was required to file headswithin 14 days of that order.  The heads filed on 24 January 2014 having beenfiled outside the 14 day period as prescribed in Rule 19 (3) (b) of the Labour Court Ruleswere consequently improperly before the Court.  As a result the Respondent was automatically barred before the court and the court ought to proceed to a determination of the merits.

The Respondent was opposed to the application.  It was submitted by Respondent’s Counsel that it was not clear from the record as to when the order by Muchawa, J was granted and served on the Respondent.  It was consequentlynot clear when the Respondent was required to file its heads.  Even if it could be said the 14 day rule under theLabour Court Rulesapplied against the background circumstances where there were now two competent orders of the Courtwhich did not necessarily speak to each other it was not clear when the period of reckoning for the filing of heads started and ended.

It was further submitted that in any event the order by Muchawa J carried a patent defect in its citation.  The parties should have been referred as “Alliance Insurance Company” beingthe Applicant and “LinetMujuru”beingthe Respondent.  In his conclusion the Respondent’s Counsel submittedthat in view of the approach in the Labour Court, to, where possible, resolve labourmatters on merits rather than technicalities the Court should in this case dismiss the preliminary point taken and allow the matter to proceed on the merits.

I would initially maketwo preliminary observations. Firstly it is apparent that the order by my sister, Muchawa, J carries a patent defect.  The parties were cited wrongly.  The matter has been brought to her ladyship’s attention and she has since, by virtue of the powers granted the court under section 92 (C) of the Labour Act [Chapter 28:01], amended her order and brought it to the attention of the parties. Secondly, this matter in my view was also inappropriately handled by the Registry.  The chamber application filed by the Respondent for dismissal of the appeal in terms of Rule 22clearly should not have been placed before a different Judge when clearly it stillremained seized with the main appeal.  The undesirable result is that we now have two competent orders emanating from the same court that are not necessarily in sync.  The partiespositions also appear divided as to which order they ought to comply with.  This is clearly an undesirable situation.  The issue has since been brought to the attention of the Registrar who indicated that the practice would be desisted from hence forth.

On the preliminary point taken it is clear that the Respondent is technically barred before the Court.  Whether one relies on the provisions of the Labour Court Rules or the order by Muchawa, J the Respondent clearly failed to file its heads on time. By her orderMuchawa, J clearly deemed Appellant’s (Respondent in the application) heads to be duly filed in terms of Rule 19 (1) ofthe Labour Court Rules.  The Respondent (Applicant in the application) was therefore required to file Heads of Argument within 14 days of the court order.  Even if it is to be accepted that the date of service of the order on the Respondent was not discernible from the record, the Respondent’s  Counsel however knew he was obliged in terms of the Labour Court Rules to file heads of argument.  Counsel ought to have approached the court to find out the position with regards the application filed in October, 2013.  It is clear that the heads of argument on the 24TH January 2014 were only filed after receipt of the notice of set down.

The Respondent has not placed before the court an application for condonation of late filing of heads and upliftment of bar currently operating against it.  It is however my considered view that the Labour Court is a court of equity, concerned not with formalities or technicalities of the legal profession but with achieving just and equitable resolution of dispute between the parties.  See PassmoreMalimanji v Cabs SC 47/2007.

The Respondent clearly flouted the provisions of the rules, and did attempt to snatch at a judgment by lodging an exparte chamber application before my sister Muchawa, J. in the face of my order dated 27th June, 2013.   The court, in my view, however is designed to ensure justice between the parties.  It is not a platform for settling of scores between legal practitioners.  To allow the appeal to be determined on the merits in the absence of the Respondent merely on the basis that heads of argument were technically filed out of time would clearly not achieve justice between the parties.  I also consider that the issues raised by this appeal are worthy of a resolution on the merits rather than on technicalities.

In the circumstances, by use of my discretion, I would grant condonation to the Respondent and uplift the bar currently operating against it in order to allow the matter to be heard on the merits.

I consequently make the following order;

The bar currently operating against the Respondent be and is hereby uplifted.

The late filing of the Respondent’s Heads is hereby condoned.

The Registrar shall reset the matter for hearing on the merits.

Venturas&Samkange, Appellant’s Legal Practitioners

W.O.M. Simango& Associates, Respondent’s Legal Practitioners