Tada Teak & Iron v Emmerson Gwatidzo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/412/2014
HARARE, 18 JUNE 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/412/2014

HARARE, 18 JUNE 2014		     			     CASE NO. LC/H/195/12

AND 04 JULY 2014

In the matter between:-

TADA TEAK & IRON					Applicant

And

EMMERSON GWATIDZO					Respondent

Before Honourable L. Kudya, Judge

For Applicant		-	J. Koto (Legal Practitioner)

For Respondent		-	A. Chambati (Legal Practitioner)

KUDYA J:

This matter was set down as an application for the rescission of a judgment which was handed down in default of the applicant employer.  On the hearing date the respondent raised a point at the outset.   The point was meant to dispose of the matter without going into the merits.  It is this point as the outset which is the subject of this judgment.

The background to the matter is that the respondent employee was dismissed from applicant’s employ on allegations of certain misconduct in contravention of the National Code of Conduct.  The matter ended up at arbitration where the arbitrator ruled that the dismissal was unlawfulas it did not conform to the dictates of the law, in particular on the basis that the applicant failed to produce a clear record of how it ended up dismissing the respondent.

The arbitrator consequently reinstated the respondent to his position without loss of salary or benefits alternatively damages in place of the reinstatement.  He added in his order that if the applicant employer was of the opinion that the responded had indeed offended the Code it was then supposed to carry out the process of suspending or re-hearing the respondent’s case in a procedurally correct manner.  Instead of complying with the arbitral award the applicant appealed to the Labour Court at first against the main arbitral award and then later on against the quantification of the main award.

At some point there was also an application seeking to stay the main arbitral award but this application was overtaken by events. At the time of its making the arbitral award had already been registered with the High Court consequently making it a High Court order and thus taking it out of the Labour Court’s jurisdiction.

As regards the appeals before this court the applicant failed to comply with the rules as far as the filing of heads of argument was concerned.  Consequently respondent successfully applied for the dismissal of the applicant’s appeal.  After the dismissal of the appeal the applicant made the instant rescission application where it sought to argue that it did not comply with the rules because the lawyers whom it  had engaged had not acted diligently thus resulting  in the default judgment.

After filing the rescission application and serving it to the respondent, respondent went on to oppose the same.  However after that opposition the applicant once again flouted the rules by again failing to file heads in the instant rescission application.  The matter was set down for argument.  At that stage the respondent raised the instant point that it was apparent that applicant was taking the court for granted as evidenced by its continued flouting of the rules of the very court from which it was seeking relief.

Respondent therefore moved the court to dismiss the rescission application on the basis that it did not comply with the rules once more as had happened in the main appeal.

In response to the point the applicant argued that the respondent was clutching at a technicality in that on his part he had also not filed heads notwithstanding the fact that at of a prior postponement his counsel had confirmed that the record was now in order and thus ready for argument giving the impression that respondent for his part had done all that was required of him by the rules.  Applicant therefore argued that to that, to that extent there was mutual non compliance by the parties which warranted the court’s condonation of the applicant’s failure to observe the rules.

Applicant argued further that its non compliance with the rules was occasioned by a multiplicity of the actions between the same parties which numbered to an excess of six hence it was excusable that it could have gotten mixed up and failed to comply with the rules timeously.  In the result the applicant prayed that the point taken by the respondent be dismissed and that the court condones the non compliance with the rules so that the rescission application could be heard on the merits.

Applicant also highlighted the fact that if indeed respondent was vigilant as he claimed he would have observed that applicant had not filed heads and to that extent would have applied for the dismissal of the applicant’s application then without waiting to discover that only after the matter had already been set down at the Registrar’s instance.  It argued further that its correspondence dated 29 May 2014 addressed to the respondent’s lawyers was merely meant to enquire from the respondent whether indeed he for his part had also filed heads not as a licence to prompt the respondent to apply to the court that applicant was barred for non compliance with the rules thus effectively closing the rescission door to it.

On the other hand, the respondent was adamant that had it been a single flouting of the rules it could have been excusable.  He indicated that facts of the case at hand spoke to numerous breaches which were evidence that applicant was not serious in prosecuting its appeal.  Further to that, he conceded that while he did not apply for dismissal at the time of the applicant’s default he was not obliged by the rules to file his heads until after the applicant had done so as it was applicant which was driving its cause and not the reverse.

Respondent indicated further that even it were to be accepted that he had also not filed heads that did not absolve the applicant from the duty to do so, more so it was the very problem that had arisen in the main appeal which the applicant was now seeking to have remedied. He thus maintained that justice dictated that the applicant be barred and that the rescission application be thrown out on that default basis once again.

The law is clear that labour matters should not be decided on the see Tichaona Nyahuma v Barclays bank 2000 (2) ZLR 445.  It however also states that it is imperative that where the law provides rules to be followed the successful handling cases the parties are obliged to follow those rules Beitbridge Rural District Council v Russell Construction SC/129/98. Any departures would consequently bring the court into  disrepute as it would be bombarded by pleas of mercy by legal counsel who will have fallen foul of the law yet this their very duty to upheld such laws.  At the end of the day the question which one should ask self is whether the end of justice would be met by adopting a rule rigid approach or one where the flouted provisions can be met easily with condonation in a bid to see finality to litigation.  Each cause would however have to be determined on its own merits.

The instant case speaks to a long history of the flouting of the law by the applicant starting from the very dismissal which it had been ordered to rectify.  Without necessarily prejudging the appeal it is apparent that the applicant’s approach to the whole matter has not been a serious one.  If indeed the case involved numerous processes that was the reason why the applicant should have been more vigilant in prosecuting its appeal.  The court accepts the respondent’s argument that where the applicant had erred at first and continues doing so it is now apparent that it is taking the court for granted and thinks condonation is just for the asking.  It is that kind of attitude which should be discouraged at all rest especially where it is clear from the papers that even on the merits of the case, the case itself is a limping one.

It is clear that the applicant has no good excuse for handling the matter in the manner it has done to date and to that extent cannot ask the court to bless its distain for the law from which  it seeks redress.  It is apparent that the applicant is improperly before the court taking into account the failure to once more file its heads timeously.  To that extent the rescission application  should be dismissed on account of the default.

IT IS ORDERED THAT

The point in limine taken by the respondent being with merit it be and is hereby upheld.  The rescission application is accordingly dismissed on account of the applicant’s failure to comply with the rules of court.

Each party is to bear its own costs.

CHAMBATI MATAKA & MAKONESE, Respondent’s legal practitioners