Lameck Chirande v Phoenix Consolidated Industries Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/380/16
HELD AT HARARE 31 MARCH 2016
CASE NO
JUDGMENT NO LC/H//16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/380/16

HELD AT HARARE 31 MARCH 2016				CASE NO LC/H/APP/323/16

& 10 JUNE 2016

In the matter between:

LAMECK CHIRANDE						Appellant

And

PHOENIX CONSOLIDATED INDUSTRIES LTD			Respondent

Before The Honourable L Kudya, Judge

For Appellant			Mr C Muchichwa (Unionist)

For Respondent		Mr E F Maposa (Legal Practitioner)

KUDYA, J:

This matter was set down as a rule 22 matter where the respondent had failed to file its response on the matter.  As required by the rule in question the defaulting party can show cause why it defaulted and why it should be allowed to regularise its position so that the matter can then properly proceed as an opposed matter.

In the case at stake respondent argued that the failure to put in the response was birthed by the fact that the same parties are engaged in numerous proceedings over the same issue hence when it received the quantification application it failed to distinguish it from the leave to appeal application which had also been filed on 5 April 2016.  To compound the problem was the fact that the quantification papers were served on respondent’s person yet rest of the previous pleadings and correspondences on the same matter had for all time been served on their legal practitioners of the record.  On the other hand the applicant was adamant that the respondent’s default should not be condoned.  This is so because in its view quantification is a separate process from the rest of the pleadings on the appeal and the leave application.  He argued therefore that he believed that the leave application was a method used to delay the matter which he felt he had properly won in the Labour Court.

It is trite law that condonation is not for the asking but need be backed by facts and cogent evidence that it should be granted.   (See case of Jansen v Acavalos 1993 (1) ZLR 216 (S).

Applying the Jansen case (supra) principles to the facts of the case at hand it is apparent from records tendered and the submissions made by the parties’ representatives that there was a serious breakdown in communication between the parties.  After parties haggled over which came first the leave application or the quantification application it was demonstrated by the leave appeal record which was pulled out after the matter was adjourned for that purpose that the leave to appeal record LC/H/APP/369/16 application was made on 5 April 2016 yet the quantification application was filed on 23 March 2016.

The dates being what they were it was also evident that the quantification application was served on respondent offices and not at its lawyers address which was its address for service for the appeal and the leave to appeal papers.  The explanation given by applicant as to the change of the address is that he believed the respondents lawyers were no longer representing respondent since they had not responded to correspondence making reference to the success of applicant’s appeal and the reinstatement order/award.  In the court’s view such reasoning clearly goes against the spirit behind a party being required by law to furnish an address of service for his cases.  The court is therefore persuaded that the inter change of the places where service was effected can explain the respondent’s failure to act diligently vis the response on the quantification application.  The excuse proferred is therefore bona fide and the court accepts it.  It is also worth noting that there is no merit in the applicant’s argument of trying to severe the nexus between the main appeal proceeding and the quantification proceedings.

It is patently clear that without the appeal reinstatement order there would be no quantification to talk about.  In the result the court is satisfied that the confusion created in the mind of respondent vis the case was excusable.

On the merits platform it is settled law that damages cannot be awarded without leading evidence.  See case of Redstar v Mabika SC-52-05.  To that extent there is no way an award of damages on the matter at hand can be arrived at without leading evidence on it.  In the result the respondent’s argument about need to lead evidence is well founded and it supports the application for condonation.  In the ultimate it is clear that respondent has a good excuse for its default.  It is accordingly condoned and allowed to regularise its position with a view to the matter being heard on a date mutually convenient to the parties.

Time lines suggested by parties are 7 June 2016 for the response 21 June 2016 for heads of argument.  29 June 2016 9 am for hearing of the quantification application.

IT IS ORDERED THAT

Application for failure to file response on time by respondent being merited it be and hereby succeeds.

Respondent is allowed to file its response to the appeal by 7 June 2016 and heads of argument by 21 June 2016.

The matter to be heard on 29 June 2106 9 am.

Each party to bear its own costs.

Chirenje Legal Practitioners, respondent’s legal practitioners