Marita Kahwema v British Embassy (Zimbabwe)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/245/24
HARARE, 03 JUNE, 2024
CASE NO LC/H/404/24
06 JUNE 2024
MARITA KAHWEMA
APPLICANT
BRITISH EMBASSY (ZIMBABWE)
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 03 JUNE, 2024
06 JUNE 2024

JUDGMENT NO LC/H/245/24

CASE NO LC/H/404/24

MARITA KAHWEMA

APPLICANT

BRITISH EMBASSY (ZIMBABWE)

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant - Mr R. Matsikidze, Attorney
For Respondent - Mr T. Chagonda, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court respondent raised a point in limine which applicant opposed. The point was to the effect that the present application for condonation and leave to appeal is improperly before the Court.

Respondent’s opposing affidavit expatiated as follows:

“Point In Limine

5. It is common cause that the Applicant’s application for leave to appeal filed under case Number LCH 231/24 was deemed abandoned by the Registrar in terms of Rule 46(b) of the Labour Court Rules, 2017.


6. The Applicant has however sought to mislead this Court into believing that she withdrew the matter upon realising the inherent flaws in the application. However, as can be seen from an extract from the IECMS platform, a copy of which is attached hereto marked as Annexure 01, the dismissal letter from the Registrar was uploaded well before the matter was purportedly withdrawn.

7. The withdrawal of the matter, which was purely reactionary to the dismissal of the matter by the Registrar, is invalid as the matter had already been deemed abandoned and dismissed by the Registrar in terms of the rules.

8. That being the case, the present application is improperly before the Court as the application for leave to appeal under LCH 231/24 was dismissed, and such dismissal remains extant. The present application ought to be dismissed with costs on that basis.”

Respondent relied on Rule 46 of the **Labour Court Rules** SI 150/17 which provides

“Where for any reason--a) proof of service is not filed by the applicant or appellant with the Registrar in the manner and time prescribed;

b) the Registrar does not receive heads of argument from an applicant or appellant who is represented by a legal practitioner or representative within the prescribed period; the matter shall be regarded as abandoned and the Registrar shall inform the parties accordingly:

Provided that the matter may be reinstated by a Judge in Chambers on good cause shown upon application made within twenty-one days of the abandonment.”
 Applicant countered through her heads of argument thus;

“5.4 In this case the applicable Labour Court Rules, 2017 do not decree that where an application is deemed to have been abandoned, the applicant is obliged to apply for reinstatement of the appeal in terms of Rule 46. It is therefore submitted that unlike the Supreme Court Rules which makes it mandatory for a litigant to file an application for reinstatement the Labour Court Rules are discretionary and give room for a litigant to adopt other avenues for appropriate relief.

5.6 The rule is not cast in peremptory terms admitting other procedural (sic) where there are no good cause to be shown to the Judge in Chambers.

5.7 It is therefore submitted that the procedure adopted by the Applicant is correct in that she could not seek reinstatement of a fatally defective application hence the need to file a fresh application for condonation and leave to appeal.”

The Court is persuaded by applicant’s argument. Rule 46 provides the remedy of reinstatement of the abandoned matter. In this case applicant does not seek to reinstate the abandoned matter i.e. LCH 231/24. He has filed a fresh application LCH 404/24 for condonation and leave to appeal. Besides the remedy of reinstatement under Rule 46, a party has the option of filing a fresh albeit with the extra burden of seeking condonation for the resultant delay/s. Respondent relied on the case;

Mahachi v Barclays Bank SC 06/06

Per MALABA CJ

“Not only did they fail to comply with the rule requiring them to file heads of argument within the period specified in the registrar’s letter of reminder, which they received, they went on to commit two more sins. They applied for condonation of the late filing of heads of argument when there was no appeal pending before the Court.”


The highlighted portion of the **dicta** above distinguishes the **Mahachi** case from the present case. The applicant **in casu** has not sought condonation of late filing of heads in the abandoned matter. He has relinquished further interest in that matter and filed a fresh application. That application stands to succeed or fail based on its merits but not on the point taken by respondent.

**Wherefore it is ordered that,**

1. The Respondent’s point **in limine** be and is hereby dismissed;

2. The Registrar of this Court shall re-set the matter for continuation as soon as possible; and

3. Costs shall be costs in the cause.

**G. MUSARIRI**

**J-U-D-G-E**
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