Kudakwashe Shindi v Ministry of Primary Education & Another

### Preamble
IN THE LABOURN COURT OF ZIMBABWE
JUDGMENT
NO LC/H/108/16
HELD AT HARARE 16 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/108/16
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IN THE LABOURN COURT OF ZIMBABWE			JUDGMENT NO LC/H/108/16

HELD AT HARARE 16 FEBRUARY 2016			CASE NO LC/H/125/15

& 4 MARCH 2016

In the matter between:

KUDAKWASHE SHINDI					Appellant

And

MINISTRY OF PRIMARY EDUCATION & ANOTHER		Respondent

Before The Honourable L Kudya, Judge

For Appellant			C  Mahlangu (Legal Practitioner)

For Respondents		N Muzuva (Civil Division)

KUDYA, J:

The court allowed the appeal in this matter in default of the respondent’s filing of a response in time and not explaining to the court’s satisfaction why it so defaulted.  This judgment sets out the full reasons why the court decided as it did to hand down the said default judgment.

The background to the matter is that the appellant employee noted his appeal with the Labour Court on 12 February 2015.   On that same date the Registrar of the Labour Court invited the respondent to file its response to the appeal.  The respondent received the request on 13 February 2015 but did not action it.  On 20 April 2015 appellant filed his heads of argument which he also served on the respondent.   Within these heads was the point at the outset that the respondent had not regularised its position vis filing its response to the appeal.  A response stamped 26 March 2015 was availed but this was already out of time.  Despite the fact being brought to the attention of the respondent no effort was made to regularise the same.

The reference to same in the appellant’s heads of argument did not at all rock the respondent into action to address the anomaly.  It waited till the hearing of the main appeal to state that it had encountered administrative challenges vis its staff turn rover.  It argued also that no demonstrable prejudice had been shown to justify the delay of the conclusion of the matter.  The appellant therefore prayed that the appeal be dealt with as unopposed.  On the other hand respondent maintained that case was a good case for indulging it and allowing the matter to proceed as an opposed appeal.  The law is clear that the liaissez fare approach taken by parties especially in labour case is becoming cause for concern.  See Ncube v Ndebele 1992 (1) ZLR 288

On account of that case it would be highly irregular to grant condonation for the asking especially here where the opportunity presented since as far back as April 2015.  It is patently clear that the respondent has been taking the matter for granted and expected to be excused as a matter of course deciding cases.  Be that as it may there is also a need to strike a balance with the smooth administrative of justice.  The history of the case at hand speaks to a sluggish approach on the matter and justice dictates that a clear that message be sent clear to the respondent and parties with a similar approach to the observance of the rules of court that the courts will not tolerate such.  This can only be achieved by allowing the point in limine and returning a default judgment on the matter.

IT IS ORDERED THAT

The point in limine at appellant’s instance vis non observance of time lines by the respondent vis filing a response to the appeal being with merit it be and is hereby allowed.

The appeal consequently succeed in default of respondent’s filing of a response in time.

Each party to bear own costs.

Munyaradzi Gwisai & Partners, appellant’s legal practitioners

Civil Division of the Attorney’s General’s Office, respondents’ legal practitioners