Alice Muzulu v Rural Electrification Agency

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/119/14
HELD AT HARARE 13TH NOVEMBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/119/14

HELD AT HARARE 13TH NOVEMBER 2013		CASE NO LC/H/965/12

& 14TH MARCH 2014

In the matter between:-

ALICE MUZULU						Appellant

And

RURAL ELECTRIFICATION AGENCY			Respondent

Before The Honourable L Kudya, Judge

For Appellant		S Zingano (Legal Practitioner)

For Respondent		E.F. Maposa (Legal Practitioner)

KUDYA, J:

This matter was set down as 2 applications in one that is, a chamber application for the dismissal of the employee’s appeal in terms of Rule 19 (3) (a) for want of filing Heads of Argument on time and an application for condonation of the late filing of Heads of Argument by the employee.

The court deliberately refrained from using the terms applicant and respondent in this matter as this would cause confusion as to which party is who.  In fact on the first set down date the court had to direct the parties to reframe all their papers to reflect employee and employer respectively to avoid confusing the applications.  This was done and this explains why the record contains 2 sets of papers relating to the same parties. It is also noteworthy that the corrected papers were not reissued or at least re-commissioned as the original affidavits and attendant signatures all appeared on the original papers also filed of record.   For clarity of record the court however decided the matter mainly based on the reconstituted papers as they still had the same content with the original papers but now with clear reference of the parties.

The background to this matter is that, the employer had an arbitral award which was made in its favour following allegations of unfair labour practice around the employee’s transfer.  Aggrieved by the arbitral award the employee noted an appeal to the Labour Court on 3 December 2012.  She was meant to file her Heads of Argument by 4 January 2013 in terms of the rules.  To the contrary she has not done so to date.  Realising that the employee was cut of time in filing her Heads of Argument, the employer made an application for the dismissal of the employee’s appeal on 7 February 2013 in terms of Rule 19 (3) (a).  In terms of Rule 19 (4) the employer was not obliged to serve the employee with this application hence did not serve it on her accordingly.

On 12 March 2013 the employee applied for condonation of late filing of her Heads of Argument.  It is also noteworthy that notwithstanding the provisions of Rule 19 (3) (4) the employee on 25 March 2013 opposed the granting of the relief sought by the employee that is the dismissal of the appeal for noncompliance with the rules.

The employee’s basic argument is that she did not deliberately flout the rules but that she had not given her lawyers adequate instructions on which to act hence they could not file the Heads until they had heard from her first.  She also argues that, she has a good case on the merits as she is of the view that her transfer was mere victimisation arising out of her sexual harassment report.

On the other hand the employer maintains that, rules are made for the court and not the court for rules hence they have to be followed for the smooth administration of justice.  Further to that, the employer maintains that the employee’s appeal has slim prospects of success taking into account the fact that the transfer was done with due regard to the employer and the employee’s interest.  She was duly consulted on it and given a reasonable period to move over to her new station.  To that extent, the argument about constructive dismissal is thus without a solid foundation.

As regards the chamber application for dismissal suffice to say that employer did not need more than to just place on record and show that the employee was in disregard of the rules.  Whether or not the explanation proferred by the employee is reasonable is an entirely different matter.  In that view it is clear that the application for dismissal meets the criteria and the court has no good reason to refuse it.

On the condonation by the employee the law is settled that it is not for the mere asking Jasen v Acavalos199 (3) (1) ZLR 216 (SC) sets out the considerations to be satisfied before one can succeed in such cases.  These can be summed up to be, a good explanation for the default plus solid prospects on appeal or the main action.

In instant case there has not been any cogent reason advanced by the employee as to why the Heads were not filed on time.  All that has been gainsaid is that, employee had not given the lawyers further instructions.  No plausible explanation is given why the instructions were not forth coming.  In any event even after having decided to proceed with matter the employee’s delays further to seek the condonation only to do so way later after the employer had filed for dismissal of the appeal.  The actions by the employee demonstrate lack of diligence in the prosecution of her matter.  That is not made better by her case which does not oN the face of it demonstrate the constructive dismissal complained about.

It is clear that the cumulative effect of the explanation of the delay and the prospects of success are so porous that they cannot support the relief sought by the employee.  In the result the condonation application fails.

IT IS ORDERED THAT

Application for dismissal of the appeal for noncompliance with the rules of court being with merit it be and is hereby allowed.

The application for condonation of late filing of Heads of Argument by the employee lacking in merit it be and is hereby dismissed.

Each party to bear own costs.

L KUDYA

JUDGE – LABOUR COURT