ZESA Holdings V Chandafira Kamuto

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/54/14
HELD AT HARARE 20TH JANUARY 2014
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/54/14

HELD AT HARARE 20TH JANUARY 2014		CASE NO LC/H/584/11

14TH FEBRUARY 2014

In the matter between:-

ZESA HOLDINGS						Applicant

And

CHANDAFIRA KAMUTO					Respondent

Before The Honourable B.T. Chivizhe, Judge

For Applicant		W Magaya (Legal Practitioner)

For Respondent		Mr G Churu (Group Legal Services Officer)

CHIVIZHE, J:

The matter was placed before me as an appeal hearing.

At the commencement of this hearing the Applicant (Respondent in the main matter)raised a preliminary point.  The point was that the Respondent having filed his appeal against the Applicant’s Appeals Committee to this Court, the Applicant having in turn filed its notice of opposition in the matter (on 12th October 2011) the Respondent then filed its Heads of Argument on (23rd September 2013) almost two years after the notice of opposition.  It was Applicant’s position that by virtue of Rule 19 of the Labour Court Rules,Statutory Instrument 59 of 2006the Respondent was required to file Heads of Arguments within fourteen (14) days of receipt of the Notice of Response.  The Respondent having clearly failed was automatically barred and in the absence of an application for the condonationthe Court should proceed to determine the matter on the merits and dismiss the Respondent’s appeal.

The application was opposed by the Respondent.  It was submitted by Respondent’s counsel that whilst it was conceded that there was a delay in the filing of heads, this was due to the fact that client had delayed in instructing counsel.   Be that as it may it was Respondent’s position that since the matter had been set down at the instance of Registrar for hearing into the merits, and not at the instance of the Respondent as an application in terms in terms of Rule 19 (3) (a) of the Labour Court Rules, Statutory Instrument 59 of 2006the Court should proceed to determine the matter on the merits.  In any event the approach that has been taken in superior courts is that labour matters ought to be resolved on the merits rather than on technicalities.  The court was also urged to exercise its discretion in terms of Rule 26 of the Labour Court RulesStatutory Instrument 59 of 2006 by uplifting the automatic bar operating against the Applicant and directing that the matter proceed to the merits.

The Applicant’s counsel in reply persisted that in view of the inordinatedelay (2 years) in filing of heads the Court should be inclined to dismiss the matter.  Upon a query from the Court as to why the Applicant had not on its part exercised the option to file an application for dismissal in terms of Rule 19 (3) a) of the Court rules the response was that in view of the automatic bar operating against the Respondent it was open to the Applicant to make the application at any stage including on the date of set down.

The Respondent’s counsel referred the Court to the decision in Angeline Chitambo v Zesa LC/H/331/2013 a judgment by Matanda – Moyo, J (as she then was).  The Applicant in turn also referred the court to a contrary decision by Chidziva, J in Arnold Guruve v Servcor (LC/H/402/2012).

Rule 19 (3)(a) of the Labour Court rules is very clear.  It enjoins a party who has not defaulted in filing Heads of Argument (in this case the Respondent in the main matter) to apply to a President of the Court in Chambers for the appeal to be dismissed.  In terms of Rule 19 (4) of the Rules an application against a defaulting party made under sub rule 3 (a) may be made without notice to the defaulting party.  The rules were set up specifically to ensure speedy and efficient resolution of the matters. It cannot therefore be correct as submitted by the Applicant’s counsel that it was open to the Applicant to wait for the set down of the matter in order to submit its application for dismissal.  The Court has a duty after all to safeguard the interest of justice by ensuring there is finality to proceedings which are brought before it.  The failure on the part of the Applicant on its own clearly shows a lack of will to have the matter finalised.

Even though the Registrar by virtue of Rule 21 proceeded to set down the matter the Respondent remained technically barred.  He had no right of audience.  Instead of approaching the Court with an application for condonation in order for the Court to uplift the bar currently operating against him the Respondent through counsel has taken the attitude that the matter having been set down at the instance to the Registrar there is no need for an application for condonation.

Respondent’s counsel has taken a rather cavalier approach to the issue.  Clearly where a party falls foul of the Rules the party ought to seek condonation of the Court first and then move to regularise.  Aparty cannot seek to hide behind the Dalny Mine v Banda decision.  Rules are meant to be complied with and cannot be lightly derogated from.  In this case no application for condonation  either orally or in written form was placed before me.  This is in stark contrast to the Arnold Guruve decision Respondent seeks to rely on.  In the absence of an application for condonation I cannot move to extend the discretion granted me under Rule 26of the Rules.

On the merits the Respondent noted an appeal against a decision by the Applicant’s Appeals Committee which upheld an earlier decision by the Disciplinary Committee finding Respondent guilty on a charge of absenteeism.  The Appeals Committee however substituted the penalty with an order for reinstatement with effect from the 23rd August 2011 date of hearing.  The Respondent noted an appeal on the basis that having ordered his reinstatement the Appeals Committee ought to have reinstated him to his original position without loss of salary and benefits.  By ordering his reinstatement to the date of hearing of the Appeals Committee theApplicant consequently forfeited his salary and benefits for the period he was not at work.  The Applicant position however is that the Appeals Committee upheld his conviction on the charge.  He was not absolved of his wrong doing.  The Appeals Committee however in their discretion withheld the salary and directed reinstatement only.  I am satisfied that given the back ground facts to the matter the Appeals Committee did not err in the exercise of its discretion.

The appeal is consequently dismissed in terms of Rule 19 (3( (a) of the Labour Court Rules.

Coglan, Welsh & Guest, Applicant’s Legal Practitioners