Kudakwashe Moyo v Posts and Telecommunications Regulatory Authority of Zimbabwe

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO LC/H/8/2024
ZIMBABWE HARARE, 15 JANUARY 2024
CASE NO LC/H/918/23
19 JANUARY 2024
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 15 JANUARY 2024

JUDGMENT NO LC/H/8/2024 CASE NO LC/H/918/23

19 JANUARY 2024

KUDAKWASHE MOYO	APPLICANT

POSTS AND TELECOMMUNICATIONS	RESPONDENT REGULATORY AUTHORITY OF ZIMBABWE

Before the Honourable G. Musariri Judge:

For Applicant	- Mr F. Mabika, Attorney	-

For Respondent	- Mr T. Chagudumba, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court, the Respondent raised 2 (two) points in limine which the Applicant opposed. The points shall be dealt with ad seriatim.

1. That the application is incompetent

The point is expatiated in Respondent’s opposing affidavit thus.

“2, Applicant’s application is clearly for the upliftment of the bar. In this regard, I make reference to paragraph 4 of the Applicant’s affidavit wherein the Applicant states as follows-

(This is a chamber application of the upliftment of a bar as the Applicant failed to file Heads of Argument in terms of Rule 26(1) of the Labour Rules).

I also make reference to the draft order wherein the Applicant is seeking among other things an order that (Applicant’s application for upliftment of the bar be and is hereby granted).

3 With the greatest respect, the Rules do not provide for the application for upliftment of the bar as contended by the Applicant. The Applicant’s case was deemed dismissed. There is no bar currently operating against the Applicant as his appeal was deemed dismissed.

4. The proper application which the Applicant ought to have made in this matter is an application for reinstatement in terms of which Applicant was supposed to show good cause why the court should reinstate (sic) his dismissed appeal. Granting the current

application does not result in the reinstatement of the dismissed appeal. Accordingly therefore, the application before the court is a wrong application and ought to be dismissed with costs.”

The Court agrees entirely with respondent. Rule 46 of the Labour Court Rules SI. 150 of 2017 provides that

“46, Wherefore for any reason –

(a) …….

(b) The Registrar does not receive heads of argument from an applicant or appellant who is represented by a legal practitioner or representative within the prescribed period;

the matter shall be regarded as abandoned and the Registrar shall inform the parties accordingly;

Provided that the matter may be reinstated by a Judge in chambers on good cause shown upon application made within twenty-one days of the abandonment.”

The proviso to the Rule clearly provides the remedy for abandonment as reinstatement. Further as a matter of logic, the desired upliftment of bar can only be availed in a matter which is pending rather than abandoned. Furthermore the position was clarified in the matter of

Mahachi v Barclays Bank SC 06/06 per Malaba JA (as he then was)

“In this case, the reasonable inference is that the applicant’s legal practitioners were disdainful of the Rules of this Court. Not only did they fail to comply with the rule requiring them to file heads of argument within the period specified in the registrar’s letter of reminder, which they received, they went on to commit two more sins. They applied for condonation for late filing of heads of arguments when there was no appeal pending before the Court. They also failed to apply for reinstatement of the abandoned and dismissed appeal.”

The foregoing analysis and synthesis shows that the application was misconceived. It ought to be dismissed.

Wherefore it is ordered that;

The application for upliftment of bar be and is hereby dismissed; and

Each party shall bear its own costs