Zimbabwe Rural District Council Workers Union v Chegutu Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/111/2014
HARARE, 21 FEBRUARY 2014 &
CASE NO LC/H/560/2012
28 FEBRUARY 2014
JUDGMENT NO LC/H/111/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/111/2014

HARARE, 21 FEBRUARY 2014 &		CASE NO LC/H/560/2012

28 FEBRUARY 2014

In the matter between:-

ZIMBABWE RURAL DISTRICT COUNCIL			APPELLANT

WORKERS UNION

Versus

CHEGUTU RURAL DISTRICT COUNCIL			RESPONDENT

Before The Honourable L Kudya		:	Judge

For the Appellant		J B Chaka (Trade Unionist)

For the Respondent		C Warara (Legal Practitioner)

KUDYA J:

This is an urgent chamber application in terms of s 92 (c) of the Labour Court Act [Cap 28:01] as read with rule 33 of the Labour Court Rule S I 15/06 wherein the applicant is applying the court to alter its judgment of 22 November 2013 on the basis that the judgment in question was made in error.

The background to the matter is that the now respondent appealed to the Labour Court on 2 August 2012 against an arbitral award made in favour of the now applicant on 2 July 2012.

The applicant filed its notice of opposition in Form LC2 on 8 August 2012. The respondent, the then appellant filed its heads of argument on 22 August 2012. The matter was subsequently set down for hearing on 9 May 2013. On that date the parties agreed that the matter could be decided on the papers on the understanding that on or before 15 July 2013

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both parties would have filed any documents supporting either position on the matter. On 29 July 2013, 4 September 2013 and 7 October 2013 the Registrar invited the applicant to file its opposing papers as agreed upon on 9 May 2013. If the letters in the record are anything to go by the applicant in the person of Mr Chaka promised to comply but consequently did not do so. Upon the court’s realisation that the matter had lay in abeyance way beyond the ninety day judgment writing period the court decided to attend to the matter. Upon realising that repeated efforts to have the applicant put in his opposing papers were in vain the court proceeded to dispose of the matter as a default matter. In the result it made the order which is now the subject of the instant judgment.

The basis for the instant application is two-fold. Firstly the applicant argues that the court erred to treat the matter as one where the applicant was in default of opposing the matter yet it had filed of record its notice of opposition. Secondly the court also erred in basing its order on the fact that the applicant should have filed heads of argument yet the rules did not oblige it to do so as it was not legally represented.

On the other hand the now respondent opposed the alteration of judgment. Its argument is that there is no patent error on the judgment which warrants alteration. In respect of the first ground it argues that the question is not about the notice of opposition but about the opposing papers which the applicant agreed to file with the court within the timelines agreed upon by the parties then. Its argument is that the notice of opposition on its own without the opposing papers which the applicant had agreed that it would file for its part is insufficient. In the event that parties were of

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the view that they needed to make oral submissions they would consequently advise the court so that they would be afforded the chance to do so. It is thus the respondent’s view that the applicant having failed to live up to the agreement of 9 May 2013 has conveniently decided to shift positions and harping on the argument that the rules only obliged it to file the notice of opposition which they did and nothing more.

In respect of the second ground on heads the respondent conceded that it was not obligatory for the applicant to file heads as it was not legally represented. Being that as it is the respondent maintains that even if the paragraph on the heads were to be expunged the position would still remain that the applicant was in default of opposing the matter as it did not comply with the order which they had agreed on that it would file its opposing papers with a possibility that the matter could then be concluded on the papers without the need for an oral hearing.

The court will address each of the grounds raised in this application in turn. In view of the fact that the heads of argument is almost common case the court will dispose of that first.

Argument on Heads

The law is clear as stated by the applicant and as conceded to by the respondent that a party who is not legally represented is not obliged to file heads of argument. The court agrees with both parties that to the extent of the judgment making reference to heads of argument that was an error on the part of the court and it should be corrected. This ground therefore succeeds to the extent that the

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alteration is allowed in respect of this ground. The paragraph is accordingly expunged from the order.

Argument on Opposing Papers

It is not in issue that the applicant demonstrated its intention to oppose the matter by filing its LC2 form. However it is worth noting that when the matter then came up the parties agreed that they would file papers supporting their respective position and judgment was reserved on 9 May 2013 on that condition. For reasons best known to itself the applicant deliberately went against that arrangement and despite repeated reminders to attend to the issue deliberately failed to comply. This left the court with no option but to dispose of the matter as an unopposed matter. It is noteworthy that the rules are clear that the court is empowered to direct the parties on how a matter can be dealt with and where necessary departure from the rules is permitted in the interests of justice. See rule 26 of the Labour Court Rules.

In the instant case it is worth noting that it is the applicant who deliberately chose to close its own opposition door having made indications that it intended to oppose the matter. If it was averse to filing the papers it had all the opportunity to do so or if it had the strong desire that it wanted to be heard orally it should have utilised that opportunity whenever the Registrar called upon it to act as it had agreed to do on 9 May 2013. There was nothing irregular about the parties agreeing to have judgment reserved on the terms referred to above. That did not flout any rules as suggested by the applicant. All that is at play in the instant case is just a clear lack of diligence on the part of the

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applicant if not a disdain for the agreement which it entered into with the other party and endorsed by the court.

It would therefore be improper for the same party who has deliberately ignored the judgment reservation terms and all constant reminders to suddenly spring up and say I was within the rules and I need to have the judgment altered. There is nothing at all which confirms that the court erred by holding that the applicant was in default of opposition. It indeed was in such default because the essence of asking parties to put in submissions was for the court to have submissions to work from which would inform its judgment. It was denied that opportunity by the applicant hence its decision to deal with the matter as a default matter. The court is not persuaded that the applicant has made out a good case for the alteration of the default judgment. It is clear that the applicant defaulted as appears plainly in the judgment and on the face of the Registrar’s reminder. Its application on this score should therefore fail.

IT IS ORDERED THAT:

Application for the alteration of a judgment being with merit on the point of heads of argument it be and is hereby upheld. The part which makes reference to heads of argument is hereby expunged from the record.

Application for the alteration of the judgment based on the argument on opposing papers it being without merit it be and is hereby dismissed.

There will be no order as to costs.

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Warara & Associations, respondent’s legal practitioners