Phillip Chikumbu v TM Supermarkets

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/66/23
HELD AT HARARE ON 2ND NOVEMBER, 2022
CASE
JUDGMENT NO. LC/H/……/2023
CASE NO. LC/H/635/22
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/66/23

HELD AT HARARE ON 2ND NOVEMBER, 2022      CASE NO.LC/H/635/22

AND 1st MARCH, 2023

In the matter between:-

PHILLIP CHIKUMBU							APPLICANT

AND

TM SUPERMARKETS							RESPONDENT

Before the Honourable Makamure, J.

For the Applicant		:	In Person

For the Respondent	:	Mr M. Mpofu (Legal Practitioner)

MAKAMURE J.

Introduction

This is an application for reinstatement of a matter onto the roll.

It is opposed.

Before I consider the application I find it necessary to express my observations with respect to parties who have their matters before this Court. It seems to me that apart from compiling the record of proceedings, parties do not appear to communicate at all until they are before the court. I have noticed that when parties are in court and it is enquired on whether or not they have discussed

the matter at all, the answer is usually in the negative. This is not the fault of the parties. However they are encouraged to do so. It is important for them to appreciate that they are allowed to discuss the matters between themselves and where possible agree to resolve some of them and leave the unresolved issues for determination by the Court. This also particularly where parties are represented. The representatives are not or should not be emotionally attached to the issues concerned. They should be in apposition to iron out certain issues.

The purpose of the Labour Act Chapter 28:01 (the Act) is” to advance social justice and democracy in the workplace” by among other things, “securing the just, effective and expeditious resolution of disputes…”  It is therefore not an offence for parties to discuss with a view to finding issues of common ground. When parties are able to deal with certain issues this contributes to the expeditious resolution of a dispute since a court will not have to decide on issues that the parties would have resolved. Further it is  important to consider both the need to have matters dealt with equitably and the provisions of Rule 31 of the Rules of this Court Statutory Instrument 150 of 2017 (the Rules) and also take into account that the Rules do not provide for pre-trial conferences yet matters have to be dealt with in the most effective manner .

Rule 31 provides as follows:

‘Pre-hearing stage

31.	(1) A Judge may, before the hearing commences, call the parties and their legal practitioners or representatives, if any, into his or her chambers with a view to securing—

(a) 	agreement on any matters likely to curtail the duration of the hearing; or

(b) 	subject to subrules (2) and (3), a settlement of the matter through conciliation and or mediation.

(2)	 A Judge may attempt to settle the matter by conciliation or mediation under subrule (1)(b) unless, before such conciliation or mediation begins, the parties do not agree to such conciliation or mediation.

Provided that if the parties agree to such conciliation or mediation but conciliation or mediation fails to settle the matter, the Judge shall proceed to hear the matter unless either or both of the parties object to the Judge hearing the matter.

…’

Rule 31 empowers a Judge to call the parties and where possible assist them in agreeing on any matters likely to curtail the duration of the hearing or to secure a settlement. While the rule provides for what a judge can do, it is not an offence for parties to discuss the matters with a view to finding issues of common ground. Employment cases are ‘bread and butter ‘matters. They are urgent by their very nature. It is therefore imperative that whoever is involved in the resolution of these matters to bear this in mind and ensure finality to litigation within a reasonable time for the benefit of both parties. Having said the above I will now discuss the present case.

The present case was deemed abandoned in terms of Rule 46 of this Court which provides that:

‘46. 	Abandonment of matters

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.’

Then Rule 36 provides for what the application for reinstatement should entail.

‘Reinstatement of matters

36.	Where a matter has been deemed to have been abandoned in terms of these rules, a Judge may, on good cause shown upon application by a party made within twenty-one days of the party becoming aware of the abandonment, order that the matter be reinstated.’ (Emphasis added).

At the commencement of the application a preliminary issue was taken on behalf of the respondent. The issue raised was that the matter was not properly before the Court it having been filed out of time. It is trite that the Court should hear and determine a preliminary issue where and when such has been raised before merits of the main matter are heard. A preliminary issue may dispose of the matter and this may obviate the need to hear the merits of a case. (See Telecel

Zimbabwe (Pvt) Ltd v Postal Telecommunication, Regulatory Authority of Zimbabwe (POTRAZ) and Others HH 446/15).

Preliminary Issue

Respondent’s Case.

The preliminary issue was that the applicant delayed in making the application for reinstatement within the twenty-one day period stipulated in the Rules. For that reason it was argued on behalf of the respondent, an application for condonation of late filing of an application for reinstatement ought to have been made. Once that application was not preceded by an application for condonation, the argument continued, such application was not properly before the Court. The respondent submitted that the applicant ought to have filed the application on 15 July 2022, that would have been within the 21 days set by the Rules. Instead the application was made on 19 July 2022 which fell outside the twenty-one day period by four days.

Applicant’s case

Applicant was previously represented by legal practitioners. He is now a self-actor. He told the Court that at some point in time he received a text message from his then legal practitioner. He also received some documents from the same legal practitioners through email. In view of the conduct of his erstwhile legal practitioners, he came to Court on 24 June 2022 to investigate what exactly was happening. He found out that the matter had already been deemed abandoned. Upon finding out that this was the position that the case was in, he realised that there were problems between him and his legal practitioners. It was only then that he personally had knowledge of the abandonment. Applicant then set in motion process for the present proceedings. There is proof of the payment which he effected on that day. He says he cannot be punished for violations committed by his erstwhile legal practitioners. The applicant urged the court to dismiss the preliminary issue so that the main application can be heard.

Analysis

It is common cause that if the respondent’s position is regarded, the application ought to have been filed by the 15th of July 2022. However, twenty-one days from the date that the applicant had knowledge of the abandonment ended on 19July 2022.  Rule 36 provides that the matter deemed abandoned maybe reinstated ‘on good cause shown upon application by a party made within twenty-one days of the party becoming aware of the abandonment.’ The twenty-one-day period starts running with effect from the date that the affected party had knowledge of the abandonment. The applicant has shown that he started the reinstatement process on the very day he had knowledge of the abandonment. In view of the date when he became aware of the abandonment the applicant was within the time lines set down by the rules. It is unfortunate that the applicant did not have the best of experiences with the legal practitioners who represented him. He however was keen to prosecute the matter and followed up the matter with both the legal practitioners concerned and the Registrar’s office. Under the circumstances of this case therefore, it appears that the applicant did as much as practically possible to ensure that the matter is heard. He reacted as soon as he realised that he was on his own and could not rely on his erstwhile legal practitioners.

The Supreme Court has said that a litigant ought to be diligent even if he or she is legally represented. In Copier Kings (Private) Limited v Dumisani Msindazi  SC 52/17 the Supreme Court (Uchena JA) stated that:

“A diligent litigant is expected to follow up progress on its application”

The present applicant, relied on his legal practitioners but still followed up his case. For that reason it would be unfair to let ‘the sins of his’ erstwhile legal practitioners visit him. Even if the respondent’s position were to be adopted there would have been a delay of four days. While he indeed would have delayed, the delay under the circumstances would not have been inordinate. This does not mean that the Court condones any length of delay. Delay is not to be condoned. But the

circumstances of each case dictate how a court makes its decision.  In the present case when the totality of the circumstances is considered, the applicant did not delay. He was compliant with the rules. There is no need for him to apply for condonation. The main application must be set down for it to be heard on the nearest available date.

In the result it is ordered that:

1.	The preliminary issue be and is hereby dismissed.

2.	The application for reinstatement be set down to be heard on the nearest available date.

3.	There is no order as to costs.

Honey and Blanckenberg, Legal Practitioners for the Respondent.