Clever Mukuku v Z.E.T.D.C.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/289/2014
HELD AT HARARE ON 27 SEPTEMBER 2013 &
CASE NO. LC/CON/H/140/12
23RD MAY 2014
JUDGMENT NO. LC/H/289/2014
---------




IN THE LABOUR COURT OF ZIMBABWE      	    JUDGMENT NO. LC/H/289/2014

HELD AT HARARE ON 27 SEPTEMBER 2013 &		CASE NO. LC/CON/H/140/12

23RD MAY 2014

In the matter between:-

CLEVER MUKUKU						-	Applicant

And

Z.E.T.D.C.						-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	Mr. A. Dururu (Legal Practitioner)

For Respondent 	-	Mr M. Baera

CHIVIZHE, J.

The matter was placed before me as an application for dismissal of a matter in terms of Rule 19(3) and (4) of the Labour Court Rules, 2006.  The application was opposed.

The applicant in his founding affidavit averred that the respondent filed an application for condonation of late noting of an appeal against the decision of the Arbitrator handed down on the 31st of August 2013. He had duly served his notice of opposition to the application on 24 September 2012.  The respondent having then failed to file heads of argument in terms of the Rules he filed a chamber application for dismissal of the matter in terms of Rule 19(3a) of the Labour Court Rules.  The court granted the application on the 23rd May 2013.  The respondent’s application for condonation was dismissed on the 7th June 2013.  The respondent then filed its application for rescission of judgment granted on the 23rd May 2013 by which its application for condonation of late noting of an appeal had been dismissed.  The applicant once again, filed and serve a Notice of Opposition.  It was the applicant’s contention that the respondent having once again failed to file its heads of argument within fourteen days as required by the rules of this court the court ought to dismiss with cost on a higher scale the application for rescission.

The respondent was opposed to the application.  It was submitted on its behalf that after its appearance in court on the 7th June 2013 when the court ordered the postponement of the hearing of the application for rescission it was respondent’s belief that it would have to wait for the application for rescission to be heard before it could deliver the heads of argument in the main matter.  The heads of argument were however at that stage ready.  If the application of rescission failed then the order of the court of the 20th May 2013 dismissing the appeal would still stand.  There was no reason in respondent’s view for the applicant to have filed yet another fresh application for dismissal in a matter where the applicant had already been successful.  The application before the court was therefore in respondent’s view superfluous.  It was also Counsels’ further view that the applicant was keen to obtain judgment on the basis of technicalities a situation which the Supreme Court has frowned upon.

In response it was applicant’s submission that the court order granted by the court on the 7th of June 2013 did not have a barring effect.  It also did not suspend/waive the proper application of the Rules by both parties.  The respondent had once again flouted the Rules of court just as it had done for the five years the case had been before the court.  Applicant’s Counsel proceeded to trace the history of the matter in a bid to show respondent’s perceived failure to pay due regard to the rules of the court.  It was applicant’s contention that where a party is seen to have consistently failed to pay due regard to the Rules then the party ought to be penalized by the court.  The court was referred to case authorities in Ndebele vs Ncube 1992(1) ZLR 288(5).  S vs Maal 1986(2) ZLR 280(5) p.284.

I was satisfied after listening to submissions by both parties that the application for dismissal was properly raised before the court.  It was clear to me as submitted by the applicant that the respondent had throughout the proceedings conducted itself in a sluggish manner.  The respondent has consistently failed to pay due regard to the Rules of this court.  This started when an appeal against the Arbitrator’s award was filed.  The respondent failed to file the appeal within 21 days of receipt of the award prompting it to then file an application for condonation for late noting of appeal.  Once it had filed its application for condonation the respondent once again failed, upon receipt of the applicant’s notice of opposition, to file its heads of argument timeously.  This resulted in the court dismissing the application for condonation of late noting of appeal with costs.

The respondent then filed its notice of rescission on 7th June 2013.  One would have at least expected that having learnt from the first mistake respondent would this time ensure its compliance with the Rules of the court.  The respondent once again failed to file its heads of argument prompting the applicant to lodge the present application for dismissal of respondent’s application for rescission of judgment.

The respondent apart for the technical argument raised has not tendered any plausible explanation as to why heads of argument have not been filed with the court this time.  The technical arguments raised are that, firstly, it is improper for the applicant to seek for a second dismissal of the appeal before the court where the applicant already has a judgment in its favour.  The court’s view is that the court judgment on 20 May 2013 dismissed the application for condonation of late noting of appeal that was before the court.  The current application is for dismissal of the application of rescission by which application the respondent is seeking to resuscitate its appeal case.  I believe the two applications being completely different in nature the present application is validly before the court.

The second technical argument raised is that after the court order issued on the 7th of June 2013 the respondent was of the belief that it was essentially waiting for a date of hearing of the matter so the court could decide whether the default judgment granted on the 20 May 2013 was properly arrived at.  This argument clearly does not hold any water.  The order issued by this court on 7th of June 2013 was to the following effect.

“WHEREUPON after reading documents filed of record and hearing legal counsel for the Appellant and the Respondent being in default;

The matter be and is hereby postponed sine die to allow for determination of the application for rescission filed with the court.”

A reading of the order clearly shows that the matter was postponed sine die to allow for determination of the application for rescission filed with the court.  The order did not in any way waiver the application of the Rules of court in respect to the filing of heads of argument.  The order also did not have the effect of barring the other parties’ rights.  The facts in this case clearly show that the respondent conducted itself with a flagrant disregard of the rules.  The suggestion had been made in the respondent’s application for rescission that the failure to file heads in respect of application for condonation was occasioned by a junior legal practitioner.  No explanation has been tendered for the present act of negligence but even if it were again the fault of the legal practitioner there is a limit to which the court’s indulgence may be extended especially when dealing with cases of disregard of court rules by legal practitioners. In a bid to ensure good administration of justice, the court would therefore grant the application as sought.

IT IS THEREFORE ORDERED THAT;

The application for dismissal of matter in terms of Rule 19 (3) and (4) of the Rules is hereby allowed.

The Respondent’s application for rescission of judgment handed down by this Honourable Court on the 23rd May 2013 be and is hereby dismissed.

The Respondent shall pay costs on the ordinary scale.

Dururu and Associates Legal Practitioners, Representing the Applicant.

Baera and Associates Legal Practitioners, Representing the Respondent.