Daniel Whami v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMB ABWE
JUDGMENT NO LC/H/25/2021
HARARE, 3 NOVEMBER 2020 &
26 MARCH 2021
CASE NO LC/H/REV/51/20
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IN THE LABOUR COURT OF ZIMB ABWE	       JUDGMENT NO LC/H/25/2021

HARARE,  3 NOVEMBER 2020  &		       	  CASE NO LC/H/REV/51/20

26  MARCH  2021

In the matter between

DANIEL WHAMI						APPLICANT

Versus

DELTA BEVERAGES (PVT) LTD			RESPONDENT

Before the Honourable Hove J

For the Applicant			Ms Musiiwa (Legal Practitioner)

For the  Respondent			Mr Ncube K (Legal Practitioner)

HOVE J:

This is an application for review.

The background is that the applicant was employed by the Respondent before charges of non-compliance with established procedures/standing instructions, making false report or giving false statement or evidence, and neglect of duty were levelled against him.

Disciplinary proceedings were conducted and he was found guilty and dismissed.  He unsuccessfully appealed through the internal structures.  He has now filed this application for review.

When the matter came up for hearing the respondent raised 3 preliminary points which are the subject of this Judgment.

Firstly, the applicant failed to serve its heads of arguments on the respondent after they had filed the heads of arguments with the court.  The application therefore improperly before the court.

Secondly, the applicant has sneaked into the record the General conditions of service and the motor vehicle policy, that is, pages 23 to 58 and pages 59 – 96 and these should be expunged from the record. Lastly, the founding affidavit cites case authorities which should be the subject matter for heads of arguments.  The affidavit should just set out the story and the heads of arguments should address the law.

The court will consider the three issues raised here below:

Whether or not the Applicant failed to serve the heads of arguments on the respondent in terms of the rules and the effect thereof.

The heads of arguments were filed within the prescribed time.  The applicant however stated that due to an error in the office, they failed to serve the heads on the respondent.  When this error was discovered the applicant wrote to the respondent’s legal practitioners explaining the oversight and seeking their indulgence.  The heads were then served on the respondent albeit out of time.

The court considers that there is no prejudice which was suffered by the respondent. They were advised of the oversight before the date of hearing and they were served.  They have not alleged any prejudice suffered. Legal Practitioners are to strictly follow the rules of court because the rule serve a definite purpose and they should not assume that failing to follow the rules is a small matter for it is not.  This is a court of law and the court has in several cases highlighted the need to follow the provisions of the Rules.

In this case however, I am of the considered view that it is in the interest of justice to condone the applicant’s failure and  not to decide the matter on the basis of technicalities in view of the fact that both the court and the other side were not inconvenienced/prejudiced. The failure to serve the respondents in time is accordingly condoned.

were pages 23 -  58 and pages 59 – 96 sneaked into the record?

It has not been denied that pages 23 – 58 and also pages 59 – 96 were not part of the record when the application was filed.  This means that the documents were just made part of the record without the leave of court being sought to introduce such further records.

The court has considered that the respondent’s prayer is that these documents be expunged from the record.  The documents that are being sought to be expunged are the motor vehicle policy document that govern such issues at the workplace and the General conditions of service that are in use at the workplace. These are common cause documents they may assist the court in deciding the issues before it especially the allegations that have to do with failure to follow established policy. Nothing can therefore be benefitted by expunging, these documents from the record.

It is infact in the interest of Justice that the documents be on file. In the conduct of cases before it, the labour court may in terms of rule 32(a)

32(a) direct, authorise or condone a departure from any of these rules (Labour Court Rules), including an extension of any period specified therein where the Judge or Court is satisfied that the departure is required in the interests of Justice, fairness and equity.

The application to strike out these pages thus becomes unsuccessful. The court authorises the filing of the document and find that they are properly before the court.

Inclusion of heads of arguments materials in the founding affidavit - effect

thereof?

The respondent also takes issue with the Applicant’s manner of drafting. It argues that the law provides that the founding affidavit should set out the story and the Heads of arguments should set out the law.

No authorities have been given in support of this position of law but the court accepts that this is the General practice.  The applicant’s representative submitted that at the time of filing the founding papers, the applicant was a self-actor.  The record shows that the application was filed by the applicant himself. The court can again in the interest of justice condone the clumsy drafting skills by the applicant, a then self-actor and  allow the matter to proceed.

The court is also aware that Labour disputes must ideally be decided not on the basis of legal technicalities. But on the merits. See Delyn Mine v Banda SC.

In the result, the respondent’s preliminary points are dismissed.

The Registrar will set the matter down to proceed before this court.

Gill, Godlonton & Gerrans, Respondent’s Legal Practitioners

Saidi Law firm, Applicant’s Legal Practitioners