Edmund July Kupara v ARDA Seeds (Pvt) Ltd & Grace Mwatsveruka Makoni

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/71/2020
HARARE, 21 FEBRUARY, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/71/2020

HARARE, 21 FEBRUARY, 2020			 CASE NO. LC/H/LRA/162/19

AND 13 MARCH, 2020

In the matter between:

EDMUND JULY KUPARA							APPLICANT

Versus

ARDA SEEDS (PVT) LTD							1ST RESPONDENT

GRACE MWATSVERUKA MAKONI					2ND RESPONDENT

Before The Honourable Kachambwa J;

For Applicant:

For 1st Respondent:

For 2nd Respondent:

KACHAMBWA J:

This is an application by a designated agent. It is an application for the confirmation of the designated agent’s ruling. It is in terms of section 93 (5a) (a) and (b) of the Labour Act Chapter 28:01 (the Act). The application is by default, not opposed by the first respondent who is the employer.

The respondent was out of time in filing their notice of response. Given an opportunity to redeem itself the counsel only said that the point was conceded and  respondent was asking for the court’s indulgence. This attitude exemplifies what the court is at pains to emphasize to litigants, particularly legal practitioners coming before this court, that condonation in any court is not for the asking. It is a discretion exercised by the court judiciously on consideration of all the factors relevant to the application. Here the employer, through its counsel, did not explain and justify its default at all despite the court having given counsel the opportunity. This is dereliction of duty to say the least. So consequently, the employer was barred. The application was unopposed.

The employer having been barred the rules of this court nevertheless gives the court the right to decide the matter. Rule 29 (b) says that the court may,

(i) “enter a default judgment against the defaulting party; or

(ii)  proceed to determine the matter”.

The applicant’s decision is coming after the infamous Don Nyamande & anor v Zuva Petroleum case, SC 43/15 and the subsequent consequential Labour Court Amendment Act No. 51 of 2015. The amendment did not remove the employer’s right to terminate on notice. That right is now hedged in that the employer has to pay off the employee one way or the other in terms of section 12(4a). The employer did not meet any one of the conditions. Consequently the termination was unlawful. Thus the ruling of the applicant is correct. It must be confirmed.

The point arises that the employee was paid some terminal benefits. In that event if the employer reinstates then such payment can be taken account of in any payments that are to be made. If the employer is no longer able to reinstate then the damages in lieu thereof shall be calculated less the payments made so far.

This court would like to mention that it is unfortunate that after judgment was reserved when the court wanted to consider judgment some papers were not in the record. These had to be located first. This caused the delay in coming up with the judgment.

Be that as it may the court holds that;

1.	the application for confirmation of the ruling by the designated agent be and is hereby granted.

2.	the designated agent’s ruling be and is hereby confirmed.

3.	the termination of the contract of employment was illegal.

4.	the 1st respondent be and is hereby ordered to reinstate the 2nd respondent without any loss of salary and benefits.

5.	if reinstatement is no longer possible the 1st respondent be and is hereby ordered to pay damages in lieu thereof the quantum of which shall be agreed between the parties, failing which agreement either party may approach the court for quantification.

6.	the 1st respondent shall pay the costs of suit.

C. Nhemwa & Associates 	-	1st Respondent’s Legal Practitioners

Saunyama, Dondo Legal Practitioners- 2nd Respondent’s Legal Practitioners