Hwedza Rural District Council V Grace Mupfugami

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/194/13
HELD AT HARARE ON 21ST May, 2013
CASE NO.LC/REV/H/23/13
In the matter between:
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THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO.LC/H/194/13

HELD AT HARARE ON 21ST May, 2013	    CASE NO.LC/REV/H/23/13

In the matter between:

HWEDZA RURAL DISTRICT COUNCIL			Applicant

And

GRACE MUPFUGAMI 					  	Respondent

Before The Honourable G. Mhuri, Senior President

For Applicant: Mr T. Machiridza (Legal Practitioner)

For Respondent: Mr L. Chimuriwo (Legal Practitioner)

MHURI G,:

After hearing submissions from Respondent’s Counsel, I dismissed the application for review with costs and indicated that my reasons will follow.

These are they.

The application proceeded in terms of Rule 19(3) (b) of this Court’s Rules 59/2006 in that Applicant having failed to file its heads of argument as required in terms of Rule 19 was barred.

Applicant’s Legal Practitioner tried at the eleventh hour to seek this Court’s indulgence seeking that the Court waives the requirement for heads of argument or that the Court postpones the matter to enable him to file heads of argument. This request was opposed by Respondent’s Counsel and the Court refused to grant him the indulgence. The record clearly shows the lack of seriousness on the part of Applicant. Firstly, at arbitration stage, Applicant sought a postponement to enable it to file submissions. It failed to do so despite the postponement being granted.

Where time periods are provided for in a statute or legislation, it is intended to ensure the expeditious resolution of matters and therefore the principal litigant must prosecute its case with due expedition.

See also:- SCOTFIN LIMITED V MTETWA 2001 (1) ZLR at page 249

On the date of hearing, Applicant did not attend but made a telephone call advising the Arbitrator that it had decided to reinstate Respondent. It promised to put this reinstatement in writing. It failed to do so even up to today’s hearing.

After the award was issued, Applicant failed to file its application for review timeously. It then applied for condonation of late filing of the review. The Court condoned its failure to comply with the Rules.

After receiving the Respondent’s response to the application, Applicant did not file its heads of argument at all even up to the date of this hearing. Applicant’s Legal Practitioner had not prepared the heads, nor prepared an application for the upliftment of bar.

In view of this tardiness I refused to grant the indulgence Applicant was seeking and ordered that the hearing proceeds as Applicant was barred.

The main ground for review by Applicant was that the Arbitrator had flouted the audi alteram partem rule in that it was not heard in the quantification proceedings. It prayed that the matter be referred back to the Arbitrator for further consideration.

It is quite clear from the Arbitration Minutes that on the 3rd September 2010, the date for quantification both parties attended. Applicant was represented by the Acting Chief Executive Officer – Mr Chiwetu and a Councillor – Mrs L. Ushe. On this day Applicant sought a postponement so that it prepares written submissions on or before the 15th September, 2010. Applicant failed to honour this promise.

The matter was reset for the 20th October 2010 and it was on the 19th October 2010 that Mr Chiwetu telephoned the Arbitrator advising that it had resolved to reinstate Respondent and was in the process of writing to Respondent. He also advised that they were not going to attend the hearing. Applicant never wrote the letter of reinstatement.

Clearly from the above, Applicant was afforded an opportunity to be heard, firstly through giving oral submissions on the 3rd September 2010 and secondly through written submissions but it spurned these opportunities. The adage there must be finality to litigation is apt.  The Arbitrator cannot therefore be faulted for having proceeded to quantify Respondent’s claim in its absence and without the benefit of its submissions. The audi alteram partem rule was not flouted at all. Applicant was the author of its own misfortunes and in that regard it cannot be heard to cry foul.

Manase and Manase – Applicant’s Legal Practitioners

L. Chimuriwo Attorneys – Respondent’s Legal Practitioners