Midlands State University v Alois Matongo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/687 /16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/687 /16

CASE NO. LC/MD/APP/25/16

HELD AT HARARE

ON 18 OCTOBER 2016 & 4 NOVEMBER 2016

BEFORE HON. MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

MIDLANDS STATE UNIVERSITY			APPLICANT

AND

ALOIS MATONGO					RESPONDENT

For Applicant					Mr. M. Jaravaza

For Respondent					Mr. C. Chipere

MURASI J.,

This is an application sui generis. The facts of the matter are briefly as follows. Respondent was employed by the applicant. Following allegations of misconduct, respondent was brought before a disciplinary committee which found him guilty and recommended his dismissal. The matter was later referred to arbitration and finally ended up at the Labour Court. Respondent’s dismissal was upheld. It should be noted that since the dismissal of the matter at the Labour Court sitting at Gweru, respondent has approached the High Court and the Labour Court with various applications. This is the reason why applicant has approached this Court for relief. I will revert to the issue later in the judgment.

At the commencement of the oral submissions, the Court informed respondent’s legal practitioner that no heads of argument had been filed with the Court. Mr. Chipere stated that he had recently been instructed and assumed agency and thus could not have filed the heads of argument. The Court noted that respondent’s erstwhile legal practitioners had renounced agency a few days before the hearing. No reasons were advanced for having done so it being apparent that the legal practitioners had represented the respondent from the onset of the labour dispute between the applicant and the respondent. It was also evident that the matter had been previously set down and still no heads of argument were filed. There was a bar operating against the respondent. Mr Chipere. did not advance any cogent reason why the bar should be uplifted. It was my view that granting an upliftment of the bar would be condone tardiness on the part of legal practitioners. To this end I share the sentiments of MATHONSI J in Hughber Petroleum (Pvt) Ltd & Another vs Brent Oil Africa (Pty) Ltd 2014 (1) ZLR 200 (H) where he had this say at page 205 D-E:

“These courts will never accept legal practitioners who elect to conduct their practices tardily and in a chaotic manner to extend such tardiness and chaos to the doorsteps of the court. Courts of law have a duty, not only to conduct their affairs in a dignified and transparent manner in dispensing justice, but also to protect their integrity against the machinations of the bad elements in the profession. Legal practitioners who take the court for granted in this manner run the risk of having costs granted against them de bonis propiis in order to discourage egregious departures from proper standards of professional behaviour.”

It was for the above reasons that I declined to uplift the bar operating against the respondent.

Applicant has made an application for perpetual silence against the respondent. In the application, it is averred that respondent has continually ‘harassed’ the applicant by making numerous frivolous applications which were dismissed by the Court. It was stated that in some instances the respondent had withdrawn such applications only to resuscitate them at a later date. Mr. Jaravaza brought to the Court’s attention that even as this present application was pending hearing, respondent had filed two other applications. These were under Case No. LC/H/APP/658/16 and Case No. LC/H/APP/820/16. Mr. Jaravaza argued that an order of perpetual silence will not necessarily infringe on respondent’s constitutional rights as the order would simply provide that in any future application(s), the respondent would seek the leave of the court to file the application. It was further argued that in doing so, the court would be exercising its discretion to regulate its own processes as provided under the common law. Mr. Jaravaza further stated that in the previous applications orders for respondent to pay costs were made and respondent had not paid anything.

The applicant’s predicament is very understandable. The record shows a plethora of applications made by the respondent. Some of these were dismissed by the court whilst others were withdrawn by the respondent. The interesting part is that in all these applications, the respondent was legally represented. It is my view that some of these applications should not have seen the light of day. I do not want to cast aspersions on the integrity of the legal practitioners concerned, however I hold the view that there was indeed some degree of unprofessionalism in the handling of the cases subsequent to the dismissal of the respondent’s case by this Court sitting at Gweru. Respondent can aptly be described as a ‘busy body’ and to this end the applicant has indeed been ‘harassed’ by the respondent.

The question is, can the Court issue an order of perpetual silence in the circumstances? It is trite that the Labour Court is a creature of statute and its jurisdiction is formulated within the four corners of the statute. Does the statute provide for the granting of an order for perpetual silence? The Labour Act (Chapter 28:01) provides that applications should be made in terms of section 89 (2) (b), (c) and (d). Paragraphs (b) and (c) to subsection (2) specifically refer to applications made in terms of section 93 of the Act. Section 93 refers to matters that are placed before labour officers, designated agents and arbitrators. This is hardly the scenario envisaged in the present application. Paragraph (d) referred to above provides for other applications and the court may give an order or exercise such powers:

“as may be provided for in the appropriate provision of the Act.”

What is clear from the above-cited paragraph is that there should be a provision in the Act which creates such jurisdiction.

Rule 14 of the Labour Court Rules deals with applications and these are supposed to be dealt with in terms of section 89 (2) (b), (c) and (d) referred to above. Rule 17 provides for Interlocutory applications ‘ in respect of any matter for which an application may be made in terms of these rules.’ The rider, obviously, is that this should be consistent with the provisions of the Act. That the Labour Court is bound by the provisions of statute is as clear as daylight. ZIYAMBI JA had occasion to deal with this issue. In National Railways of Zimbabwe vs Zimbabwe Railway Artisans Union 2005 (1) ZLR 341 (S) the Learned Judge had this to say at 346 F -347 A:

“There is, I think, judging from the cases which have come before us, a misconception generally held by the Labour Court, namely, that it is, in terms of s 89 of the Act, endowed with jurisdiction to entertain all applications brought before it…

Thus, before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application ‘in terms of this Act or any other enactment’. This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring.”

I do not see anywhere in the Act which provides the Labour Court with jurisdiction to grant an order for perpetual silence. The Court is thus disabled from issuing such an order.

Mr. Jaravaza also made the alternative argument that the Court is empowered to regulate its own processes. In this regard he cited a plethora of decided cases. The Court notes that these cases emanated from the High Court and the Supreme Court. In these cases, the learned justices opined that the courts in which they sat, had the power to regulate their own processes. I should add that in all those cases, it was not the stated position that each and every court has the power to regulate its own processes. I drew Mr. Jaravaza’s attention to the provisions of section 176 of the Constitution of Zimbabwe. He was unable to make meaningful submissions as regards the provisions thereof. Section 176 of the Constitution provides:

“176. Inherent power of Constitutional Court, Supreme Court and High Court.

The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”

Clearly the courts that are bestowed with the authority to regulate their processes are as listed in the section. The Labour Court is excluded. The Constitution has thus limited this inherent power to the named Courts. This therefore means that Mr. Jaravaza’s second point does not find favour with the Court.

In the result and for the aforestated reasons the application for an order of perpetual silence is dismissed with no order as to costs.

DZIMBA JARAVAZA & ASSOCIATES-		Applicant’s legal practitioners

CHARAMBA & PARTNERS-			Respondent’s legal practitioners