Z Esscwu V Registrar OF Labour N O & 2 ORS

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/237/2014
HARARE, 14 FEBRUARY 2014
CASE NO LC/H/929/2012
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/237/2014

HARARE, 14 FEBRUARY 2014 &			CASE NO LC/H/929/2012

25 APRIL 2014

In the matter between:

Z ESSCWU								APPLICANT

Versus

REGISTRAR OF LABOUR N O					1ST RESPONDENT

And

MINISTRY OF LABOUR & SOCIAL SERVICES		2ND RESPONDENT

And

NATIONAL UNION FOR EDUCATION RESEARCH		3RD RESPONDENT

& TECHNICAL PERSONNEL INDEPENDENT

AND ASSOCIATED INSTITUTION OF ZIMBABWE

Before The Honourable P Muzofa       :		Judge

For the Appellant			R Matsikidze  (Legal Practitioner)

For the Respondent          	T A Mboko (Legal Practitioner)

MUZOFA J:

This is an application for interim relief made in terms of s 92 E (3) of the Labour Court Act (“the Act”), for the suspension of an order granted by the first respondent.

Before the matter proceeded into the merits, the third respondent raised four points in limineand the applicant raised one point inlimine. This judgment therefore addresses the five points in limine raised by the parties.

The first point in limine raised by the third respondent is that the appellant is barred and cannot approach this court for interim relief since it did not file heads of argument in its appeal. For the appellant it was submitted that this application made in terms of s 92 E (3) requires that there should be an appeal that is pending. This requirement has been satisfied. The bar operating in the main appeal should not be allowed to interfere with this application since it has its remedies to uplift the bar.

Section 92 E (3) of the Act in terms of which this application was made provides as follows:

“Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires.”

I believe the provisions are unequivocal there must be an appeal that is pending. In this case it is not in dispute that there is an appeal that is pending. The third respondent’s submission is premised on the state of the appeal, that the applicant who is the appellant is barred. I do not believe the provision of s 92 E (3) concerns itself with the state of the appeal. In any event if this court allows itself to deal with the bar or even address it, it is tantamount to dealing with the appeal. The court is obligated to deal with the matter before it only, and what is before this court is the application for the suspension of the order made by the Registrar. Indeed the appeal and the application are inter-dependant in that the appeal is a condition precedent to the filing of the application that is all. The point in limine lacks merit and therefore it is dismissed.

The second point in limineis that the application should have been made on Form LC1. The court was referred to the case of Dandazi v HwangeCompany 2001 (2) ZLR 298 as authority that the court should dismiss the application since it was not made on the prescribed form. For the appellant it was submitted that r 14 of this court’s rules provides for applications and applications for an order referred to in s 89 (2) (b), (c) or (d) of the Act are the ones to be made on Form LC1. This application being for interim relief cannot be on Form LC1. In any event, it was argued r 12 of the Court’s Rules provides for modification of the Form LC1 and r 26 provides for a departure from the rules.

At the onset I must say r 12 does not provide for the modification of Form LCI but it deals with the manner this court can deal with proceedings relating to the admissibility of evidence. So the submission regarding r 12 is misplaced. Rule 26 provides for departure from rules. I believe the court can only direct, authorise or condone a departure from any of the rules if an application has been placed before it. In this case no application has been made. The submission in relation to r 26 then becomes irrelevant in the resolution of this point in limine. What remains is the argument that Form LC1 is primarily for applications seeking an order in terms of s 89 (2)(b)(c) or (d) of the Act.

The reference to an order in terms of s 89 (2)(d) includes any other application other than the ones referred to in paragraphs (b) or (c) of s 89. In my view this application can be classified under s 89 (2)(d). Counsel for the appellant urged the court to consider the substance of the application instead of the form. The application, it was further submitted meets the requirements of an application and the respondent has ably responded to it showing that it was informative enough. I agree with Counsel for the respondent’s submission that the application substantially meets the requirements of a court application and therefore it should be acceptable. This point in limineis dismissed.

The third point in limine is that the appellant failed to file heads of argument in terms of the rules and is therefore barred. No application for condonation for the late filing of heads of argument was made. In response it was submitted that the matter initially was before the court as an urgent chamber application. The court made a finding that it was not urgent. The applicants then filed heads of argument. The fact that the court decided on the matter referring to the heads of argument means the court cannot make a ruling on the heads of argument by conduct the court condoned the late filing of the applicant’s heads of argument.

According to r 19 of this court’s rules, heads of argument are to be filed where a party is to be represented within fourteen days of receiving a notice of response. In this case the applicant filed this application as an urgent chamber application on 29 November 2012. The third respondent filed a notice of response on 6 December 2012 and on 28 June 2013 the third respondent filed its heads of argument. The urgent chamber application was determined by this court on 29 July 2013. The court’s decision being that the application was not urgent there was no certificate of urgency. The application was then set down on the ordinary roll on 14 February 2014. It seems the applicant’s argument is that the court by conduct condoned the late filing of its heads of argument. A perusal of the record of proceedings shows that the applicant did not file heads of argument. In that case the applicant was barred 14 days after receiving the notice of response in December 2012 even when the third respondent filed its heads of argument in June 2013 the applicant was not jolted into action to file its heads of argument. The argument that the court condoned the applicant’s conduct is misplaced, how can a court condone the applicant when in fact the heads of argument were not filed. The court was not referred to any law or is it aware of any rule that provides for the proposition as submitted by the applicant. In addition and most importantly the court only decided on the urgency of the matter. The key document in that case was the certificate of urgency which was not included, so it was not shown that the matter was urgent. The applicant did not diligently prosecute its matter. The applicant is barred for failure to file heads of argument in terms of the rules of this court. This point in liminesucceeds. This point would dispose of this application in the interim but for completeness the court will proceed to deal with the other points in limine.

The fourth point in limine is that the applicant has not exhausted the remedies as provided for in s 48 (3) of the Labour Act, by approaching the Registrar first. In response it was submitted that s 48 (3) of the Act provides for a party who seeks restrictions only but not a suspension. My reading of the said section seems to be clear, it provides:

“The Registrar may, on the application of any person, by notice in writing impose such reasonable restrictions as he considers necessary on the activity of any trade union …”

Restrictions as referred to in this section are ordinary limitations while the trade union continues to operate. So the Registrar has not been empowered to suspend the registration of the trade union. Technically the Registrar would be suspending the decision made. I do not believe that is the intention of the section. This application is in terms of s 92 E (3) of the Act. The application is properly before the court. This point in liminelacks merit and therefore it is dismissed.

Counsel for the applicant also raised a point in limine, that the first respondent has not filed a notice of response, therefore this application is unopposed. Further it was submitted that the third respondent cannot defend this matter without the first respondent defending the matter. The court was not referred to any authority to support this assertion. In response it was submitted that the first respondent was being sued in his official capacity and by not defending clearly it is prepared to abide by the court’s decision.Besides the fact that the applicant is already barred and has no right of audience this point in limine is meritless. The third respondent cannot be barred from defending the matter because the first respondent decided not to defend the matter. I agree with the third respondent. The first respondent is just obligated to comply since it was cited as a party to the proceedings. This point in limine is dismissed on two grounds that the applicant is already barred and that the point in limineis meritless.

The court having found merit in the third point in limine, the applicant is therefore barred. Accordingly the following order is made:

The first, second and fourth points in limine raised by the third respondent be and are hereby dismissed.

The third point in limineraised by the respondent is upheld and the applicant is barred.

The point in limine raised by the applicant be and is hereby dismissed.

There shall be no order as to costs.

Matsikidze&Mucheche, applicant’s legal practitioners

Donsa-Nkomo&Mutangi, 3rd respondent’s legal practitioners