Norbert Machingauta v Air Zimbabwe (Private) Limited

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/160/24
HELD AT HARARE 16 FEBRUARY 2024
AND 10 APRIL 2024
CASE NO.LC/REV/H/10/14
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 16th FEBRUARY 2024
AND 10 APRIL 2024

In the Matter between
NOBERT MACHINGAUTA
And
AIR ZIMBABWE (PRIVATE) LIMITED

JUDGMENT NO.LC/H/160/24
CASE NO.LC/REV/H/10/14

APPLICANT
RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPLICANT : MR S.T. MUTEMA (LEGAL PRACTITIONER)
FOR THE RESPONDENT : MR . O KONDONGWE (LEGAL PRACTITIONER)

MAKAMURE J:

This matter was set down so that a review application filed on behalf of the applicant could be heard. At the commencement of the hearing the legal practitioner on behalf of the respondent stood up to address the Court. The nature of the application was not immediately articulated in order for the Court to appreciate it.

The application

Mr Kondongwe who appeared on behalf of the respondent indicated that the other party wanted to apply for a bar and for that reason he stood up to explain what happened up to that point in time. I gave him the opportunity to address the Court. He gave a long explanation. However, he did not say in terms of which rule that application or explanation was being made. After that long explanation he told the Court that he had filed the Heads of Argument the day before the Court sat to hear the matter, which would have been the 15th of February
 2024 because the Court sat to hear the matter on 16 February 2024. So this was an application for upliftment of bar and condonation for late filing of heads of argument.

In response, Mr Mutema who appeared on behalf of the applicant opposed the application. It was argued on behalf of the applicant that the respondent was not properly before the Court. This, it was argued, was because there was no board resolution, authorizing its representative to act on its behalf, attached to the Notice of Response. Immediately Mr Kondongwe stood up and indicated that he had the Board Resolution. Mr Mutema proceeded to argue that the said Board Resolution did not form part of the consolidated record which was uploaded onto the IECMS platform. Mr Mutema further argued that the respondent did not file its heads of argument in terms of the rules; that the applicant’s Heads of Argument were filed by 23 October 2023 and that the respondent was served a hard copy on 27th October 2023. It was submitted that the rules require that within ten days of receipt of the applicant’s heads, the respondents file their heads. Mr Mutema further argued that the requirements for an application of upliftment of bar were not met; that there was no application for condonation and extension of time; that the cause for the delay was not explained. In view of this there was no application before the Court. It was submitted that the application for upliftment of bar be dismissed.

In response Mr Kondongwe submitted that his application was ‘double-barreled’ in that it was an application for upliftment of bar and condonation for late filing of heads of argument. He went on to explain the challenges that they encountered with the IECMS.

I expressed my serious reservations on how this application was presented. The Court has rules, Statutory Instrument 150/2017 and those rules must be observed. Non-observance of the rules is not acceptable because rules are there to enable the court to function properly. **Chikura & Anor v Al Sham’s GlobalBVI Limited SC17/17**. However, it is the principle in this jurisdiction that labour matters ought not to be resolved on the basis of technicalities but that such technicalities be resolved to ensure that merits of the case are considered. **Dalny Mine v Banda 1999(1) ZLR 220.** The present matter has been ongoing since 2014. The parties are on the receiving end when their lawyers deal with the technicalities of these rules. Strictly speaking the application made on behalf of the respondent was not properly before the Court. It amounted to an abuse of the Court. It should be struck off the roll. The Court however has to make other considerations before making the order. One such consideration made under the circumstances of this case, was whether and when finality of this matter would ever be achieved if the rules were strictly adhered to. In making the consideration not to strictly adhere to the rules, the Court will still be acting within the confines of both the Labour Act Chapter 28:01 and S.I.150/17. It has been held that it is the policy of the law that there is finality to litigation. **Ndebele v Ncube 1992(1) ZLR 288.** Further the Court is mindful of the sound warning from the Supreme Court regarding how technicalities delay finality to litigation to the detriment of simple industrial justice being done between parties. **Edmore Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited SC82/22.** It is on that basis that the provisions of r 32 of the rules of this court were invoked. It will therefore be directed in terms of r32 that the application be granted. The application is accordingly granted.

In view of the foregoing, it is ordered that

1. The bar operating against the respondent be and is hereby uplifted.
2. The Heads of Argument filed on behalf of the respondent are considered to be properly before the Court.


3. The Registrar is directed to ensure that the main application is set down for hearing as soon as practicable.

4. There is no order as to costs.

**STANSILOUS AND ASSOCIATES, APPLICANT’S LEGAL PRACTITIONERS.**

**DUBE, MANIKAI & HWACHA, RESPONDENT’S LEGAL PRACTITIONERS.**
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