Forward Takaindisa v Grain Marketing Board

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/160/25
ZIMBABWE HARARE, 21 MARCH, 2025
CASE NO LC/H/98/25
AND 16th APRIL, 2025
FORWARD TAKAINDISA
APPLICANT
VS
---------


==============================

IN THE LABOUR COURT OF
ZIMBABWE HARARE, 21 MARCH, 2025
AND 16th APRIL, 2025

JUDGMENT NO. LC/H/160/25
CASE NO LC/H/98/25

FORWARD TAKAINDISA
APPLICANT

VS

GRAIN MARKETING BOARD
RESPONDENT

Before the Honourable Chivizhe, J:

For the Applicant: - Mr I. Mazanhi, Legal Practitioner
For the Respondent: - Mr N. Chidembo, Legal Practitioner

CHIVIZHE, J:
This is an application for reinstatement of a matter under reference LC/H/1238/24. The application is premised on Rules 36 and 46 of the Labour Court Rules, 2017. The matter was deemed abandoned by the Registrar on 07 January 2025 for reason of failure to file Heads of Argument. The application is opposed.

BACKGROUND FACTS
The Applicant is a former employee of the Respondent. He was engaged as Operations Director on 1st April, 2021. He was dismissed from employment following a disciplinary hearing on 13th April, 2024 which found him guilty of two charges of gross misconduct under the GMB Code of Conduct. The first one was failure to disclose any interest in a company conducting business with the GMB in which he had an interest or influence which falls under category 1C(20) gross misconduct and the 2nd charge being any act of misconduct or omission inconsistent with the fulfilment of the express or implied terms of the contract category 1C(II).


Dissatisfied Applicant lodged an appeal with this court under reference **LC/H/495/24**. The appeal was withdrawn on 4th July, 2024 with the consent of the parties. An application for condonation for late filing of an application for review filed under reference **LC/H/959/24** was again struck off on 17th October 2024. The application was struck off the roll for failure to attach the draft application for review.

On 10 March, 2025 the Applicant proceeded to file the present application before me. The Respondent through Heads of Argument raised two points *in limine*. The first is that the Heads of Argument, to the extent that they specifically and directly respond or answer to the averments in the Respondent’s Opposing Affidavit do not advance the legal or factual issues arising from the pleadings filed by the parties, they are as such a disguised Answering Affidavit.

The Respondent has placed reliance on the case of **Nehowa vs Bavep Investments (Pvt) Ltd 2012 (2) ZLR 176(H)** where the court described the content and purpose of Heads of Argument as being the following;

“The rules set out that the heads of argument must clearly outline the submissions he intends to rely on and set out the authorities, if any, which he intends to cite. Heads of argument constitute persuasive argument, making reference to issues and evidence already placed before the court by the parties at the founding stage. Any process filed in violation of the rules will not take the party’s case any further. It constitutes deceit on any party seeking to introduce further pleadings or evidence through the back door. A legal practitioner who pursues such a course of action prejudices their client by failing to present evidence before the court at the appropriate stage, and by failing to effectively use the opportunity to present to the court heads of argument which will assist their client in its cause. In casu, the court will not have regard to the annexures attached to the heads of argument as they are improperly before the court…

Reference has also been made on the same point to **Cargill Zimbabwe v Culverinan Trading (Pvt) Ltd HH42/06**. The Respondent also contends that Heads of Arguments are submissions and not evidence. Reference is made to **Jennifer Nan Booker vs Richard Mudhindo and others SC 5/18** where the Supreme Court held as follows:

The purpose of heads of argument is to expound on the law applicable to the facts placed before the court, and one cannot plead through written submissions. It is also trite that one cannot adduce evidence through heads of argument, but one may do so either in affidavits or viva voce evidence.”


The Respondent lastly submits that the Applicant cannot create his own procedures that are contrary to what is provided for in the rules of this court on the basis that the court is informal in its proceedings. Such informality cannot be relied on to advance laxity by litigants resulting in a failure to comply with well-established principles in the Rules of the Court as well as the common law.

The Respondent Counsel, at the hearing of the matter, submitted that he was solely confining himself to the second point in limine which he believed had the potential to be dispositive of the matter. The point was that the Applicant’s failure to seek condonation and extension of time in his application for reinstatement is fatal to the application. Counsel noted that the Applicant had only pleaded in his papers for a case for reinstatement in the matter under referenced LC/H/459/24. He however had not pleaded for condonation and extension of time within which to have the matter reinstated. This was however necessary as even if the matter was reinstated the Applicant still remained out of time to file Heads of argument.

To the court’s query as to whether such procedure is outlined in the Rules of the Labour Court, Respondent Counsel conceded that the procedure is not one provided for under the relevant rules i.e. Rules 36 and 46 of the Labour Court Rules, 2017. His view, however, was that although the issue had not been previously placed before the Labour Court, that is according to his own research, he however believed the point was a valid point. It was a point that also clearly supported logic. He indicated that the Supreme Court had arrived at a similar conclusion that an application for reinstatement without a conjoined application for extension of time is fatally defective. The decision was made in a matter which was based on a similarly worded provision in the Supreme Court Rules to Rules 36 and 46 of the Labour Court Rules, 2017. Counsel’s prayer was for the application be struck off the roll with costs as it was fatally defective.

In specific reply to the second point in limine, Applicant’s Counsel conceded that the application for condonation and extension of time within which to file Heads of Argument had not been conjoined to the present application. His view however was that the Respondent was unnecessarily putting form over substance, a situation which has been denigrated by other courts in this jurisdiction. Counsel urged the court to consider substance over form. In this regard the Founding Affidavit showed the Applicant addressing the aspect the delay, he had also tendered a reasonable explanation for the delay occasioned in filing of the Heads of
 Argument. In regards the issue of prospects of success, although these had not been captured in the Applicant pleadings before the court, they could however be gleaned from the record in the main matter i.e. under reference **LC/H/1238/24**. The Applicant’s attitude was that both points in *limine* were meritless and had to therefore be dismissed.

**EVALUATION**

The court shall proceed to firstly determine the issue of the points taken in *limine* The Respondent through its pleadings had taken two points in *limine*. Counsel for Respondent at the hearing opted to focus only on the second point in *limine*. The first point in *limine* abandoned by Respondent is accordingly dismissed.

On the second point in *limine* the issue that arises is whether a failure to apply for condonation and extension of time in an application for reinstatement filed under **Rules 36** and **46** of the **Labour Court Rules, 2017** is fatal to the application.

**Rule 36** of the **Labour Court Rules, 2017** provides as follows;

“Where a matter has been abandoned in terms of these rules, a Judge may, on good cause shown upon application by a party made within twenty-one days of the party becoming aware of the abandoned order that the matter be reinstated.”

It is clear that **Rule 36** refers to an application for reinstatement being made within twenty-one days of a party’s knowledge of abandonment of his/her matter by the Registrar in terms of **Rule 46**. **Rule 36** clearly makes no provision for an application for condonation to precede an application for reinstatement.

It is however a trite position at law, that whenever there is breach of the rules, an application for condonation is mandatory. See **Friendship vs Cargo Corners Ltd and Anor 2013(1) ZLR 1 (S): Mateya vs Independent African Church 2007 (2) ZLR 319(S)**.

The Respondent Counsel in making submissions on the second point in *limine* referred the court to a recent judgment in the Supreme Court in which that court struck off the roll with higher costs an application which had been filed seeking reinstatement without being preceded by an application for condonation for non-compliance with the rules. The application was premised on rule 70(2) of the Supreme Court Rules, 2018 which rule is similarly worded to rule 36 of this court rules. Rule 70(2) reads as follows;

“The appellant may, within 15 days of receiving any notification by the registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause shown”

The decision was taken recently by the Supreme Court in the case of Quarry Product Distribution (Private) Limited and Sunny Yseng Tiles Zimbabwe (Private) Limited SC 18/25. In the matter the court was referred to an earlier judgment by the same court in Sergeant (1) Mhande 047371 and Anor v The Chairman of the Police Service Commission and ORS SC 63/18. In Sergeant Mbande and Anor matter the Supreme Court had placed reliance on an earlier decision in Zimslate Quartize (Pvt) Ltd vs Central Africa Building Society SC 34/17 where Ziyambi JA in dealing with a similar matter had remarked as follows;

“An Applicant who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An Applicant who takes the attitude that the indulgence, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

It is clear, in casu, the Applicant has not made an application to seek condonation and extension of time within which to file heads of argument. There is no doubt however that there was indeed an infraction of the rules by the Applicant. Whilst the Applicant, has, in his papers sought, to explain the reasons for the delay in filing of the Heads of Argument and to some extent the delay in filing the present application what is missing is the actual application for condonation and extension of time. The facts in this case show the matter having been deemed abandoned by the Registrar on 7th January, 2025. The Applicant thereafter filed an application for reinstatement on 5th February 2025. No proper application for condonation and extension of time has however been filed either as an application on its own or as combined with the application for reinstatement.

It is also the position at law that condonation cannot be granted in the absence of an application, this essentially means a court cannot grant condonation *mero motu*. See Mugabe N.O. and others vs Tsvangirai N.O. 2017 (1) ZLR (S).


It is clear therefore that, this court, in the absence of an application for condonation and extension of time, cannot proceed to determine the application for reinstatement. The application simply has to be struck off the roll with costs. It is so ordered.
--- END OCR FALLBACK ---