William Mandinde v Municipality of Chinhoyi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/641/2013
HARARE, 13 AND 22 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/641/2013

HARARE, 13 AND 22 NOVEMBER 2013	    		    CASE NO. LC/ord/H/09/13

In the matter between:-

WILLIAM MANDINDE					Applicant

And

MUNICIPALITY OF CHINHOYI			Respondent

Before The Honourable P. Muzofa, :  Judge

For Applicant	 	Mr B. Machengete (Legal Practitioner)

For Respondent		Mr A.K. Maguchu (Legal Practitioner)

MUZOFA J.;

This is an application in terms of Section 93 (7) (b) (ii) of the Labour Act [Chapter 28:01], wherein applicant’s claim is for payment of outstanding wages and benefits in terms of the contract the parties entered into.

Before proceeding to deal with the matter I propose to deal with the issue as to whether the application was filed out of time as submitted by counsel for the Respondent.  According to counsel for the Respondent the application is for an order in terms of paragraph (c) of subsection (2) of Section 89.  The application therefore should be in accordance with Rule 14 (1) of this Court’s Rules which deals with applications.  Rule 14 (1) (b) provides.

“A party to a dispute who wishes to apply to the Court for an order referred to in Section 89 (2) (b), c or (d) shall, within twenty one days from the date –

….

of expiry of the maximum thirty day period allowed for a Labour Officer to settle the dispute, where no settlement is achieved and the Labour Officer did not, for any reason, issue a “certificate of no settlement” in relation to the dispute in terms of Section 93 (3) of the Act”.

In this case the matter was initially before a Labour Officer on the 26th of May 2011.  Another notification was sent out to parties to attend before a Labour Officer on the 12th of January 2012.  No certificate of settlement was issued thereafter.  The Applicant then filed this application with this Court on the 28th of January 2013.  In terms of the law it is within the Applicant’s right to file the application.  However it was clearly well after the twenty one days period within which to file such applications.  There was no application for condonation.

Counsel for the Applicant failed to advance a logical argument for this clear violation of this Court’s Rules.  Counsel relied on the overstretched argument that this Court is an informal Court, meant to dispense simple justice and therefore should not be bogged by technicalities.  I believe this is an improper interpretation of what this Court stands for.  This is a court of record, which has rules that have to be followed.  A flagrant disregard of the rules especially by legal practitioners should not be tolerated.  It certainly amounts to bringing this Court to disrepute.  I say this because counsel for the Applicant was alerted of this misnomer but failed to apply for condonation.  The attitude by counsel was that the Court should overlook the technicality and proceed to deal with the merits of the case.

The Court cannot turn a blind eye to the procedural irregularity.  It should be corrected.  Counsel for the Applicant chose not to correct it.  The Court’s hands are tied , it cannot deal with the matter see Mubvimbi v Maringa and Another 1993 (2) ZLR 24 (H).  Counsel for the Respondent’s submission based on the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (S) is correct, the Applicant was supposed to apply for condonation, the Court cannot exercise its judicial discretion to condone when there is no explanation before it.

This Court cannot therefore address the merits of this application, it is improperly before the Court.  Accordingly the following order is made.

The application be and is hereby dismissed as it is improperly before the Court.

There shall be no order as to costs.

Nyamushaya, Kasuso & Rubaya – Applicant’s Legal Practitioners

Dube, Manikai & Hwacha – Respondent’s Legal Practitioners