Norman Hadzirabwi v Bindura University of Science Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/391/2016
HARARE, 11 MAY 2016 &
23 JUNE 2016
CASE NO LC/H/APP/689/2015
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/391/2016

HARARE, 11 MAY 2016 &				        CASE NO LC/H/APP/689/2015

23 JUNE 2016

In the matter between

NORMAN HADZIRABWI							APPLICANT

Versus

BINDURA UNIVERSITY OF						RESPONDENT

SCIENCE EDUCATION

Before the Honourable F C Maxwell J

For the Applicant	A Chambati  (Legal Practioner)

For the Respondent    I Ndudzo  (Legal Practitioner)

MAXWELL J:

This is an application for rescission of a default order in terms of section 92 C (1) (c) of the Labour Act [Chapter 28:01]. The applicant alleges that the order was granted in error, which allegation is disputed by the respondent. The record of proceedings indicated that on 31 March 2015 the following order was made in the matter referenced LC/H/1141/2014:

“The application for a postponement to enable the appellant to apply for upliftment of bar be and is hereby granted.”

On 13 April 2015 the applicant filed a chamber application for condonation of late filing of Heads of Argument and upliftment of bar. The application was served on the respondent’s counsel on the same day. On 24 April 2015 the respondent filed a notice of response. On 5 May 2015 the applicant timeously filed heads of argument in the application for condonation. The respondent on the same day filed a chamber application in terms of Rule 19 (3) (a) of S I 59/06 for the dismissal of the appeal for failure to file heads of argument. The application was referenced LC/H/APP/532/2015. The application was placed before a judge sitting in chambers on 20 May 2015 who granted the order. The order was issued out on 27 May 2015. On 9 June 2015 the applicant filed the present application.

The applicant contends that the order dismissing the appeal was granted in error as it contradicts the order of 31 March 2015 in which a postponement was granted to enable the applicant to file an application for condonation and upliftment of bar. The respondent asserts that the order was not issued in error as the Honourable Judge properly exercised her powers in granting the order. It was submitted for the respondent that up until the date the order to dismiss the appeal was granted, the applicant had not made an attempt to file heads of argument at all. It was further submitted for the respondent that no order for condonation or upliftment of bar was in place and even to date no such order exists.

It is correct that the applicant did not file heads of argument in the main appeal. The applicant cannot do so without an order condoning the late filing of such heads of argument. To file them without condonation is to display a wanton disregard of the court’s rules. The applicant should therefore not be faulted for not filing the heads of argument after the matter was postponed on 31 March 2015. It is also correct that there is no order granting condonation or upliftment of bar. It is common cause that the application that could result in such an order, if granted, is still pending, both parties having filed heads of argument. It is difficult to understand why, the respondent, fully aware that the application for condonation had been filed and a response thereto had also been filed proceeded to file the application in terms of rule 19 (3) of S I 59/06. In the founding affidavit to the application in terms of Rule 19 (3), the respondent did not disclose the proceedings of the 31st of March 2015 and the subsequent filing of an application for condonation by the applicant.

I am persuaded that had the facts of the proceedings of 31 March 2015 and the subsequent filing of an application for condonation and upliftment of bar by the applicant been brought to the attention of the Judge on 20 May 2015, she would not have granted the order. I am therefore satisfied that the applicant properly approached the court for the rescission of an order issued in error. I am therefore inclined to grant the application.

Submissions were made by both counsel that costs should be granted de bonis propriis. I am not persuaded that a basis has been made for the granting of costs on a higher scale. In fact I am not persuaded to make any order of costs in this case. Accordingly the following order is made:

The application for rescission of an order issued in error be and is hereby granted.

The order of 27 May 2015 dismissing the appeal referenced LC/H/1141/14 be and is hereby rescinded.

Each party will bear its own costs.

Chambati, Mataka & Makonese Attorneys, applicant’s legal practitioners

Mutamangira & Associates, respondent’s legal practitioners