David Whitehead Textiles Limited v Nyasha Faith Magondo N.O. and Others

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/196/20
HELD AT HARARE ON 17th JUNE, 2020
CASE NO. LC/H/APP/337/19
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/196/20

HELD AT HARARE ON 17th JUNE, 2020	       CASE NO. LC/H/APP/337/19

AND 28TH AUGUST, 2020			        X REF: LC/H/LRA/33/19

In the matter between:-				        X REF: LC/H/APP/305/19

DAVID WHITEHEAD TEXTILES LIMITED				Applicant

And

NYASHA FAITH MAGONDO N.O.					1st Respondent

JEREMIAH SABAMBA							2nd Respondent

LUCIA MURWIRA							 	3rd Respondent

ISAAC MUKURUDARE							4th Respondent

Before the Honourable Mhuri, J.

For Applicant			:	Mr. L. Zinyengere (Legal Practitioner)

1st Respondent			:	In Person

For 2nd, 3rd, & 4th Respondents:	Mr. M.Tshuma (Legal Practitioner)

MHURI J.

This is an application for condonation of late filing of a notice of response by David Whitehead Textiles Limited (Applicant) in respect of an application between 1st Respondent, applicant and 2nd, 3rd, 4th respondents case LC/H/LRA/33/19.

Rule 15 sub rule (6) of this Court’s Rules, Statutory Instrument 150 of 2017 obliges a respondent to file a response to an application within 10 (ten) days of receiving the application.

In casu, the applicant failed to comply with this sub-rule hence this application.  1st respondent is not opposed to the granting of the application whereas the 2nd, 3rd.4th respondents are.

The major requirements which applicant has to address to the satisfaction of the Court for it to be granted the indulgence it is seeking are; the length of the delay, the explanation for the delay, the prospects of success in the main matter, prejudice to the other party and interest in the finality of the case-

PAUL GARY FRIENDSHIP

VS

CARGO CARRIERS LIMITED AND ANOTHER   SC 1/13

FORESTRY COMMISSION

VS

MOYO 1997 (1) ZLR 254 (S)

Applicant is based in Kadoma where its business operations were being conducted.  After the 1st respondent has issued a ruling in a matter pitting 2nd – 4th respondents and applicant, she served the application for confirmation of the ruling on the applicant’s Human Resources Department at its Kadoma Offices.  The application was served on the 14th February, 2019.

The 2nd – 4th respondents‘ submission that in all previous dealings with the judicial manager and applicant, service of process and correspondence was effected at the Kadoma office was not denied by applicant.

THE DELAY

Having received the application on the 14th February, 2019,applicant had 10 (ten) days within which to file its response.  However, it only filed its response on the 11th March, 2019.  The length of the delay is therefore seven (7) days and not 5 days as stated by applicant.  Be that as it may, seven days delay is not an inordinate delay in my view.

THE EXPLANATION

It is common cause that applicant is under final judicial management and the final judicial manager being KNOWLEDGE HOFISI (Mr. Hofosi).

In support of this application, Mr. Hofisi deposed to a founding affidavit in which he explained the delay as being a result of the failure by 1st respondent of cite him (judicial manager) in this litigation, the result of this being that he was not served with the application.  The application was not brought to his attention timeously by the Human Resources Department that had received it in Kadoma.

I find the explanation to be reasonable in the circumstances.  It is not disputed that where a company is under judicial management, the judicial manager must be cited as such and any litigation against that company is to be served on him/her.

In this case, the judicial manager was not cited and service of process was not effected at his official address in Harare.  I however do not consider the service of the application at applicant’s address in Kadoma as defective as this was the usual address that the parties used all along in their previous dealings.  This was not denied by applicant.  I accept as reasonable the explanation that because of this service at Kadoma the application got to the judicial manager late resulting in him filing the response “5” days out of time.

PROSPECTS OF SUCCESS

In respect of its prospects of success in the main application, Mr. Hofisi raises two main issues namely:

that of Labour Officer’s jurisdiction, and

absence of Court’s leave to institute these proceedings

The jurisdiction issue was abandoned by applicant during the hearing.

Filed of record and not in contention is a High Court Order issued on the 19th March, 2014 in which applicant was placed under Final Judicial Management .  Paragraph 5 of the Order states,

“all actions and applications and the execution of all writs, summons and other process against 1st, 2nd, 3rd, 4th, 5th and 6th respondent companies shall be stayed and not proceed without leave of this court.”

It is applicant’s contention that the Respondents did not seek leave of the High Court before instituting these proceedings thereby contravening the above paragraph.  The 2nd – 4th respondents are however of the contrary view, their position being that leave of the High Court was not required.  The applicant and the 2nd – 4th respondents each relied on two different High Court decisions to support their respective positions.

Further and on the other hand, the 2nd – 4th respondents raise the point that the parties entered into an agreement and a certificate of settlement was issued, as such applicant should not oppose the 1st respondent’s application.

In view of the above it is my considered view that in order to properly determine the application for confirmation the court needs to hear and benefit from both parties’ submissions.  This is irrespective of whether I proceed in terms of either paragraph (i) or (ii) of sub-rule (b) of Rule 29.

That being the case, I will not pronounce on whether applicant has good prospects of success or not but state that there are arguable issues that need proper ventilation by the parties so as to assist the Court.

Consequently I will grant applicant the indulgence it seeks.  It is therefore ordered that:

the application for condonation and extension of time within which to file notice of response and heads of argument in the matter LC/H/LRA/33/19 be and is hereby granted.

the notice of response and heads of argument both filed on the 11th March 2019 be and are hereby accepted as part of the record and properly before the Court.

The Registrar is directed to set down the application LC/H/LRA/33/19 on a mutually convenient date.

Costs shall be in the cause.

ZINYENGERE RUPAPA – Applicant’s legal practitioners

CHINAMASA, MUDIMU & MAGURANYANGA – 2nd – 4th Respondents’ legal practitioners