Fidelity Life Assurance v Samson Chishamba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/217/2013
HELD AT HARARE ON 23 MAY, 2013
JUDGMENT NO. LC/H/217/2013
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IN THE LABOUR COURT OF ZIMBABWE     		JUDGMENT NO. LC/H/217/2013

HELD AT HARARE ON 23 MAY, 2013			CASENO./LC/H/261/2010

In the matter between:-

FIDELITY LIFE ASSURANCE						-	Appellant

And

SAMSON CHISHAMBA							-	Respondent

Before The Honourable L. Hove: President

For Appellant 	-	Mr. S.V. Hwacha (Legal Practitioner)

For Respondent 	-	Mr. R. Matsikidze (Legal Practitioner)

HOVE L.:

At the hearing of this matter a preliminary issue was raised that the Appellant’s legal practitioners had failed to file Heads of Arguments timeously in terms of Rule 19 of the Labour Court Rules.

The Appellant argued that the operation of the bar is not automatic.  It was submitted in this regard that

“The Appellant argues firstly that there is no provision in the Labour Court rules which is to the effect that a party who has not filed its Heads of Argument timeously is barred from being heard on the merits”.

Reliance for this proposition was placed on the provisions of Rule 19(3)(a) of the Labour Court Rules which states that where no heads have been filed, the Registrar shall set the matter down in terms of Rule21 unless the party who is not in default has applied for the matter to be dismissed.

Sub paragraph “b” provides

“(b)the defaulting party shall (if no application under paragraph(a) is made or granted) be barred and the court may deal with the matter on the merits.”

In casu, no application was made under Rule19 (3) (a) of the rules.

Therefore by operation of subparagraph (b) of the same rule, the Appellant was barred.  The court may hear the merits of the case but the Appellant and his legal practitioner will have been barred for failing to file their Heads of Arguments in terms of Rule19(1).

The Registrar may still set the matter down for hearing but only the non defaulting party can be heard since the Appellant would have been barred.

It would not make any sense to bar a party and then proceed to hear him on the merits of his matter.  That would make a nonsense of rule 19(3) (b).

The Rules make it mandatory that Heads be filed where a party is represented by a legal practitioner.  The Labour Court is indeed an informal court and it is also flexible and equitable.  But this does not mean that the filing of heads is optional or not always necessary.

The filing of the Heads of Arguments is mandatory where a party is represented.  The Rule reads as follows;

“19(1) where an Applicant or Appellant is to be represented by a legal practitioner at the hearing of the application, appeal or review, the legal practitioner shall:-

(a)within 14days of receiving a notice of response to the application, appeal or review, lodge with the Registrar Heads of Argument --------“

There is nothing in that Rule to suggest that filing is or can be optional.

The Appellant is therefore barred in terms of Rule 19(3) (b) for failing to comply with rule 19(1).

The court can exercise its discretion to condone a departure from any of these rules including an extension of any period specified in terms of Rule26.

The court can only exercise such discretion upon being satisfied that the departure is required in the interest of justice, fairness and equity.

In casu however, nothing has been placed before the court to persuade it to be satisfied that it should under the circumstances of this case find that departure is justified in the interest of fairness and equity or in the interest of justice.

It is my view that in cases where the non defaulting party has raised the issue that the defaulting party is not in compliance with the rules, the defaulting party should simply seek to be condoned by making an application in the light of Rule26 and not seek to argue that while it is barred, it can still be heard.

In the circumstances, the Appellant is automatically barred by virtue of Section 19 (3) (b) and unless it is condoned, it has no right of audience except only in relation to an application for condonation.

The point in limine is upheld but in the interest of justice, the Applicant is allowed to file its application for condonation for failure to file its Heads of Arguments in time.

Dube , Manikai and Hwacha– Appellant’s Legal Practitioner

Matsikidze and Mucheche – Respondent’s Legal Practitioner