Zimbabwe Diamond and Allied Minerals Workers Union v Mutiba N.C. and 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/50/23
HARARE, 01 NOVEMBER, 2022
CASE NO. LC/H/115/21
ZIMBABWE DIAMOND AND ALLIED
Appellant
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO.LC/H/50/23

HARARE, 01 NOVEMBER, 2022	CASE NO. LC/H/115/21

ZIMBABWE DIAMOND AND ALLIED	Appellant

MINERALS WORKERS UNION

MUTIBA NC AND 3 OTHERS	Respondents

Before the Honourables E Makamure J, Honourable G. Musariri, Judges;

For Applicant	- Mr S. Tsaurai, Legal Officer

For the 1st Respondent	-Ms P. Macheka, Legal Officer

For 2nd Respondent	-Mr F. Mangiza, Attorney

For 3rd Respondent	-No Appearance, Absentia

For 4th Respondent	-No Appearance, Absentia

MUSARIRI,

Applicant applied to this Court for the reinstatement of a abandoned matter i.e. LC/H/LRA/826/18. At the onset of oral argument 2nd Respondent raised a 2 points in limine which Applicant opposed. I shall deal with the points ad seriatim.

JUDGMENT NO. LC/H/50/23 CASE NO. LC/H/115/21

1. That the application is fatally defective for failure to comply with time limits

Such applications for reinstatement are provided for by Rule 36 of the Labour Court Rules S.1. 150/07 which states

"Where a matter has been deemed to have been abandoned in terms of these rules, a Judge may, on good cause shown upon application by a party made within twenty-one of the party becoming aware of the abandonment, order that the matter be reinstated."

The abandoned matter was an application by 1st respondent (Labour Officer) for the confirmation of her ruling. The matter was disposed of by the Court order dated 12th June 2019 which ruled that

"That the matter be and is hereby struck off the roll as 3rd respondent has not been notified of the hearing."

What should have been done thereafter is set out in Rule 35 (3) which provides that

"Where a directive has not been given in terms of Rule (2) and a matter has been postponed sine die or removed from the roll is not set down within three (3) months from the date on which it was postponed sine die, such matter shall be regarded as abandoned and the Registrar shall inform the parties accordingly."

The matter was not set down within the prescribed 3 months period and thus was deemed abandoned. Therefore it could only be revived through the reinstatement provided by Rule 36. However the right to apply for reinstatement is only available within twenty-one days after the party becomes aware of the abandonment. The founding affidavit does not give the date when applicant became aware of the abandonment. It is therefore presumed applicant became aware of the abandonment 3 months after the said court order i.e. on 12th September 2019. This means that the present application was filed 2 1/2 years after the abandonment. The applicant is way out of time. It was necessary for applicant to first seek condonation by the Court of the intended application for reinstatement. I am fortified in this view by the case of

Mhande v PSC SC 63/18

Where Bere JA ruled that

"However, given my position that the absence of an application (for) condonation and extension of time to seek reinstatement must be precedent to an application for reinstatement of this appeal, I consider the application as fatally defective.'

2. That applicant does not have locus stand! to bring the application

The point raises interesting questions in light of the multiplicity of the parties and the complex procedural history of the matter. However in light of the above conclusion on the 1st point it is unnecessary to deal with the 2nd point in limine.

In the circumstances the following order is issued.

Wherefore it is ordered that,

The application for reinstatement be and is hereby struck off the roll for failure to comply with the prescribed time limits; and

Each party shall bear its own costs.

G.MUSARIRI J-U-D-G-E

I agree:

E. MAKAMURE J-U-D-G-E