Aaron Nyarugwe v Dharwizi Transport

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 28TH
JUDGMENT NO. LC/H/232/25
CASE NO. LC/H/233/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 28TH MAY 2025

AND

In the matter between

JUDGMENT NO. LC/H/232/25

CASE NO. LC/H/233/25

AARON NYARUGWE	APPLICANT

And

DHARWIZI TRANSPORT	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE.

FOR THE APPLICANT: ALOUIS MAPFUMO FOR THE RESPONDENT :MS A MUPONDI

MAKAMURE J:

This is an application for reinstatement of a matter. An order was made striking off the application.

The following are the reasons.

At the commencement of the hearing an application for postponement of the matter was made on behalf of the applicant. This, it was argued, was necessitated by the absence due to illness of the officer who ordinarily deals with the matter.

An application for postponement of a matter like any other application, can be granted or denied. Litigants should not come to this Court with their minds made up that they will make an application for postponement which will be automatically granted. That is a wrong attitude.

[4]I think litigants who appear before this Court should take this Court and its rules seriously. It is indeed true that this is a court of equity. The fact that it is a court of equity must not be misunderstood to mean that a litigant can have whatever they ask for without observing the rules. I will give examples of what parties should bear in mind when they appear before this Court.The fact that the Court is not bound by strict rules of evidence does not mean that there is no need for evidence at all. The fact that labour matters should not be resolved on the basis of technicalities does not mean that the Court should always wink where a litigant is not

compliant with the rules. The list of perceptions which litigants appear to hold is long. A warning must be sounded in order to guide parties and hopefully possibly reduce the incidences of parties adopting an attitude that this Court is not a serious court, which is wrong.

[5]In Zimplats v Marko Phuti SC 21/2016 the Supreme Court held that :

‘It is trite that the Labour Court is entitled to dispense equity in its duty to do substantial justice between the parties. However, it cannot do so outside the confines of the law. … it is still required to act subject to such procedures as may be prescribed i.e. in accordance with the Labour Act and the Labour Court Rules.’

Whatever perceptions litigants may hold, they must always consider and accept that the Labour Court has rules of procedure which must be observed. Where the Court exercises its discretion in a case as guided by the rules , for example , by Rule 32, it should not be taken for granted that such will happen in every case. Each case is always determined according to its own merits.

[6]Having said the above, I now go back to the application for postponement and thereafter deal with the matter before the court.

The application for postponement was made on the basis that the trade union official who was handling the matter, Mr Masomera, was not well. There was a doctor’s note confirming that position. Mr Mapfumo who represented the applicant indicated that he was not well versed with the matter and was not therefore in a position to argue.

The application was opposed . Ms Mupondi who represented the respondent argued that it was in fact Mr Mafpumo who conducted the investigations and signed all the documents filed record on behalf of the applicant . Ms Mupondi also argued that the application for postponement amounted to abuse of the Court and should therefore be denied.

[7]I checked the record and found that Mr Mapfumo indeed signed most of the documents. Mr Mapfumo himself confirmed this position . He however indicated that it was the policy of the organisation ( the trade union) that the Secretary General signs all documents and then assigns the case to another. In the present case Mr Mapfumo indicated that it was Mr Masomera who was handling the matter and he had just come to seek a postponement since Mr Masomera was not well.

[8]After considering the application, I found it inappropriate that Mr Mapfumo should come to court to seek a postponement of a matter and expect the Court to grant such an application. It is clear that he prepared the record and signed the documents. He is therefore taken to be conversant with what is on record. He is bound by the maxim ‘signor beware’. In any event a party who comes to court seeking a postponement must come prepared to deal with the matter in the event that the application for postponement is not granted.

The application for postponement was therefore dismissed and parties were aske to address the Court on merits of the matter.

Mr Mapfumo asked the Court to consider the matter on the basis of the papers filed of record.

Ms Mupondi for the respondent raised preliminary issues that the application was defective as firstly , it was not compliant with the Rules of the Court in that it did not advise the other party of its rights and the time limits and the consequences of failure to adhere to such time limits. Secondly, Ms Mupondi argued that the applicant ought to have sought condonation before the application for reinstatement was made. Thirdly it was argued that the applicant disregarded Court rules and the matter should be struck off the roll . Fourthly it was argued that there were no proper heads of argument. It was submitted that what was presented as heads of argument for the applicant were like an essay which does not contain any legal analysis. Fifthly it was argued for and on behalf of the respondent that there was no locus standi on the part of Mr Mapfumo’s trade union to represent the applicant. It was submitted that in order for a trade union to represent a litigant such litigant must be a current member of the trade union in question. In the present matter it was submitted that the applicant is employed by a concern which falls under the Commercial Sectors. As such he could not be represented by a trade union for the Transport Industry. It was pointed out that there was no proof that the applicant was still a paid- up member of the union for the Transport Industry.

Out of all the preliminary issues raised on behalf of the respondent Mr Mapfumo chose to respond only to the question of the locus standi. This appears to be consistent with the position which he adopted when parties were ordered to argue the matter , namely, that the Court should determine the matter on the basis of papers filed of record. It was Mr

Mapfumo’s submission that when the dispute between the parties arose applicant was under the transport sector. As such they have continued to represent him and there is proof of his membership. Mr Mapfumo submitted that the applicant was exercising his constitutional right of freedom of association as provided for in s65 of the Constitution of Zimbabwe.

In dealing with the preliminary issues it is noted that Mr Mapfumo chose not to respond to the first four of the issues. However, the Court is still required to make a determination. The applicant has not refuted the failure to comply with rules of this Court. It is trite that rules are there in order for courts to run properly. Delta Beverages (Private) Limited v Zimbabwe Revenue Authority SC9.19 . Thus, where a litigant has failed to observe rules of this court , they are non -compliant . The non- compliance cannot be condoned. There is no point in having rules of procedure and then not comply with them. The preliminary issue is therefore upheld.

The respondent raised the issue that the applicant ought to have sought condonation before applying for reinstatement. It was argued that this was in terms of Practice Direction 3/2013 (PD 3/13).

Paragraph 5 of PD 3/13 reads as follows:

’5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a Judge may on application and for good cause shown reinstate the matter, on such terms as he deems fit.’

The respondent did not indicate whether or not the application for reinstatement was made outside the stipulated thirty-day period. If it was outside that period , the respondent did

not show by how many days the applicant was out of time for there to be need for an application for condonation. I therefore find that without disclosing the extent of the delay by which the applicant was out of time in making the application for reinstatement, or indeed why the application for condonation must be made first, the question of condonation has not been fully ventilated. The preliminary issue must therefore be dismissed . Accordingly , it is so ordered.

The respondent raised the question of representation of the applicant by a trade union which is in the transport sector when he no longer belongs to that sector. The response was that when the dispute first arose the applicant was a paid - up member of the trade union for that sector.

It is true that the applicant enjoys the constitutional right of freedom of association. The enabling Act, the Labour Act Chapter 28:01(the Act) then sets the parameters within which that freedom of association is to be enjoyed in the world of work.S92 of the Act provides for representation of parties as follows:

‘ 92 Representation of parties

A party to a matter before the Labour Court may appear in person or be represented and appear by—

a legal practitioner registered in terms of the Legal Practitioners Act [Chapter 27:07]; or

an official or employee of a registered trade union or employers organisation of which the party is a member.

a company director, company secretary, company legal advisor or person in charge of human resources or personnel management on behalf of the employer.’(My underlining)

In the present matter the applicant produced some receipts from the National Union of Transport Workers of Zimbabwe for the months January , February and March 2022.

There is no proof that the applicant is still a member of that union. The Act requires that the party be a member. What this means is that if there is no proof that the applicant is a current member of the union in question ,that union has no right to represent the applicant. For that reason alone, the matter is not properly before the Court and should be struck off the roll.

On the merits of the application for reinstatement, the applicant stated in his affidavit that he cured the reason why the matter was previously struck off the roll. That is, the question of his membership to the trade union in the transport sector. He says he has now produced proof of his membership to the trade union which is representing him .This issue has been dealt with in the preliminary point. There is no proof of his current membership. The matter therefore remains improperly before the Court.

The applicant also indicated that the trade union official , Mr Reason Masomera provided proof of his authority to represent him. However, even if Mr Masomera is authorized to appear in court, that does not give him authority to represent a party who is not a member of the trade union which he (Mr Masomera) represents. This therefore takes the applicant’s case no further.

On the prospects of success, the applicant stated that the procedure adopted by the respondent in convicting him on appeal after the disciplinary hearing had acquitted him was not proper. This is obviously arguable. However even if there were prospects of success, where the is no right of representation, the matter remains improperly before the Court.

The position of the respondent was that the appellant committed an offence. Ms Mupondi delved into the merits of the case and went on to state that the applicant was dishonest. Ms Mupondi did not directly address the requirements which have to be met in order for an application for reinstatement to be granted .In this case she was supposed to show whether or not the applicant has met those requirements. However, when asked by the Court on the effect of her address on the application for reinstatement she indicated that the application must be denied. This really shows absence of prospects of success.

The Court upheld the preliminary points that the applicant did not comply with the rules of court and that there was no proof of his membership to the trade union representing him. On the basis of the preliminary points the matter ought to have been struck off.

The Court then considered the merits of the application . It was found that even if there had been an arguable case , there was no proper representation of the applicant. The matter was therefore not properly before the Court.

It was in view of the foregoing that the matter was struck off the roll.