Stine Nyamakura v Delta Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/81/2014
HARARE, 10 & 14 FEBRUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/81/2014

HARARE, 10  & 14 FEBRUARY  2014		           	       CASE NO. LC/H/316/10

In the matter between:-

STINE NYAMAKURA						Applicant

And

DELTA BEVERAGES						Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		Mr. T. Mboko (Legal Practitioner)

For Respondent		Mr. G. Chingoma (Legal Practitioner)

MAXWELL J:

At the hearing of this matter Respondent raised two points in lime which are the subject of this judgment.  The first is that Applicant is barred for non-compliance with Rule 19 (1) of this Court’s Rules SI 59/2006, having failed to file and serve heads of argument within the stipulated time.  The second is that Applicant did not follow the prescribed format of an application set out in the said rules as Form LC1 was not completed.

Applicant was employed by Respondent as a driver/salesperson.  In February 2004 the Karoi Depot of the Respondent reported a shortage of money at the bank.  A report was made to the police and Applicant was arrested.  Having failed to get any evidence linking Applicant to the shortage, the police released him with no case to answer.  Respondent subsequently charged Applicant with two counts of conduct inconsistent with the express or implied conditions of his employment contract.  Disciplinary proceedings were held.  Applicant pleaded guilty to one count but was convicted on both counts after a hearing.  Applicant was dismissed from employment.  Aggrieved, he appealed to a Labour Officer and subsequently the matter was referred to arbitration.  The arbitrator ordered the reinstatement of the Applicant without loss of benefits from date of suspension.  Alternatively the Respondent was to pay damages in lieu of reinstatement.

Respondent noted an appeal against the arbitral award on 16 July 2010.  The notice of appeal was served on Applicant’s erstwhile legal Practitioners, Messrs Antonio and Associates.  No response was filed by Applicant.  The appeal was allowed unopposed on 16 February 2012.  On 4 March 2013 Applicant filed an application for rescission of judgment.  The application was opposed on 18 March 2013. The Respondent filed heads of argument on 23 April 2013.  On 27 September 2013 parties appeared before KABASA J. and Mr. Mboko applied for a postponement on the grounds that he had just been engaged and had not yet had an opportunity to fully consult the Applicant.  The matter was postponed to 1 October 2013 at 1100 hours.  On that date the matter was struck off the roll as Applicant had not sought the court’s condonation for late filing of application for rescission of judgment.

On 21 October 2013 Applicant filed the current application.  On 11 November 2013 Respondent filed a response raising a preliminary issue that application is fatally defective as Applicant did not supply the information required in Form LC1.  Instead of rectifying the anomaly that had been pointed out, Applicant filed an answering affidavit on 25 November 2013 in which he says

“The Application for Condonation herein must be read together with the Application for Rescission of Judgment already filed with this Honourable Court.  This is particularly so because the two cannot be dealt with exclusively without reference to the other.”(Paragraph 1 of answering Affidavit)

On the same day Applicant filed heads of argument which were not signed.  The submissions by Counsel for Applicant at the hearing of this matter leads one to the conclusion that those heads of argument should be disregarded.  According to him the heads of argument contain a litany of errors which were not corrected and they would not make sense.  Subsequently another set of heads of argument found their way into the record, without being stamped by the Registrar.  It was submitted that the Registrar had directed that they be filed under cover of a letter.  The said letter has not been produced before this Court.  There is no evidence from the Registrar that the directive alleged to have come from her did indeed come from her.  I do not find the Applicant’s explanation plausible.  As a result there are no heads of argument from the Applicant.

In terms of Rule 19 of SI 59/2006 Applicant was required to file heads of argument within 14 days of receipt of Respondent’s response.  This, Applicant has failed to do.  The matter therefore falls within the provisions of Rule 19 (3) (b) which stipulates that

“(3) where heads of argument that are required to be lodged in terms of subrule  (1) or (2) are not lodged on behalf of the applicant, appellant or respondent, as the case may be, within the period or at the time specified in those provisions –

….

(b) the defaulting party shall (if no application under paragraph (a) is made or granted) be barred and the Court may deal with the matter on the merits.”

Rule 28 governs hearings in this Court.  The proviso to subrule 6 paragraph (b) states

“Provided that if one of the parties has been barred, the President shall deal with the application, appeal or review as though it were unopposed;”

In this case it is the Applicant who is barred in terms of Rule 19 (3) (b).  As a consequence he cannot be heard.  Applicant should have sought condonation for late filing of heads of argument.  I therefore find merit in the first point in limine and I uphold it.

Turning to the second point, Applicant was notified, through Respondent’s response filed on 11 November 2013 that the application is fatally defective as information required in Form LC1 was not supplied.  Applicant sought to deal with this issue by submitting that the application should be read together with the application for rescission of judgment already filed with this Court.  Applicant claims that the two cannot be dealt with exclusively without reference to the other.  His response is tantamount to saying that he will not rectify the error pointed out but wants the Court to search for the relevant information from the papers already before the Court.  That is a cavalier approach to the rules of this court which the Court finds unacceptable.

In the words of MHURI J

“Rules of the Court are meant to be followed, otherwise the very point of having such Rules is defeated.  Where one fails to follow the Rules, there must be good cause for it.  The Court cannot claim to have rules that govern its operations and not be concerned when the same Rules are flouted.  It is therefore incumbent upon the party who has flouted the Rules to explain why, thereby clothing their application for condonation”  W.K. Dzimbiri and 9 others v Haggie Rand LC/H/464/13.

This Court dealt with a similar situation although it was an application for review.  In the case of Smart Kanochuruka and Another v Fresh and Frozen Distributors LC/H/414/13 the Court held that an application which does not state the brief details of the labour dispute in the Form provided in the rules is defective and cannot be entertained.  I see no reason for departing from that position.  There is therefore no matter before the Court.

Accordingly the second preliminary point is also upheld, the application be and is hereby dismissed with costs.

Donsa-Nkomo & Mutangi, Applicant’s legal practitioners

Dube, Manikai & Hwacha, Respondent’s legal practitioners