Lloyd Chinodainzva & Another v Chinhoyi Municipality

### Preamble
IN THE LABOUR COURT ZIMBABWE
JUDGMENT
NO LC/H/462/16
HELD AT HARARE 21 JUNE 2016
CASE NO
JUDGMENT NO LC/H/462/16
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IN THE LABOUR COURT ZIMBABWE				JUDGMENT NO LC/H/462/16

HELD AT HARARE 21 JUNE 2016				CASE NO LC/H/APP/1132/15

& 5 AUGUST 2016

In the matter between:

LLOYD CHINODAINZVA & ANOTHER			Applicants

And

CHINHOYI MUNICIPALITY				Respondent

Before The Honourable Muchawa, J

Applicants			In person

For Respondent		G Chingoma (Legal Practitioner)

MUCHAWA J:

This is an application for reinstatement of a matter which was struck off the roll on 27 May 2015.  The precise terms of the order made were

“The appeal be and is hereby struck off the roll it being invalid for failure to comply with section 98 (10) of the Labour Act.”

I reserved my ruling on the matter after deciding that I would proceed to determine the matter on the papers filed of record.  Both parties filed heads of argument which clearly outline the submissions intended to be relied on and the authorities to be cited.  I declined the request for a postponement by the applicants who intended to bring in their representative to argue on their behalf.  This was because I was not satisfied that such person, whose identity applicants were unclear of, has a right of audience before this court.  This same person is the very same one who prepared the pleadings on record for the applicants.

This court heard the appeal under reference LC/H/897/14 on 18 May 2015.  A point in limine raised by the respondent was upheld and was the basis for disposal of the matter.  It was observed that the notice of appeal did not raise any point of law as required by section 98 (10) of the Labour Act [Chapter 28:01] when one is appealing against an arbitral award.

In the ruling read out it was further explained that the appellants had issues with the method of trial used by the arbitrator or the procedure adopted.  In some cases they were querying the factual conclusions of the arbitrator.  These were said not to qualify as grounds of appeal.

In the current application, the respondent raises points in limine once again.

The first point raised is that the application is not in compliance with section 5 of Practice Direction 3 of 2013.  That provision provides as follows;

“Where a matter has been struck off the roll for failure by a party to abide by the rules of the court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a judge may on application and for good cause shown, reinstate the matter, on such terms as he deems fit.”

It is argued by the respondent that the applicants had thirty days from 12 May 2015 (18 May however) to rectify the defect in their appeal, failing which the matter is deemed to be abandoned.

The applicants counter argue that this court had a discretion in terms of rule 26 to depart from the rules of the Labour Court and that this includes the extension of time within which to place such an application before the court.

The position of the respondent which I find favour with has the support of the recent Supreme Court case of Bindura Municipality v Paison Chikeya Mugogo SC 32/15.  In that case GUVAVA JA had to deal with the interpretation of Practice Direction 3/13.  She concluded that paragraph 5 cited above means that an applicant, must, within thirty days, rectify the defect by applying for condonation for the late noting of appeal and extension of time within which he should comply with the rules.  She concludes;

“He may not do so after the window period which he has been given to rectify the 		defect as the matter will be deemed to have been abandoned.”

In casu the applicants filed this application for reinstatement on 16 September 2015.  This was some three months later than the limited time granted within which to cure the defect.

This matter is therefore deemed abandoned.  The court cannot just condone a departure from the rules as no application for condonation has been placed before it.  No good cause has been shown for the exercise of such discretion in terms of rule 26.  See Forestry Commission v Moyo 1997 (1) ZLR 254 (SC).

In addition, a reading of Practice Direction 3/13 paragraph 5 shows that the recourse to rectify a defect within 30 days is extended to a party who has failed to abide by the rules of the court.  In casu the appeal was struck off the roll not because applicants had failed to abide by the rules of the court but because of non-compliance with the Labour Act.  This application does not therefore fall within the category envisaged by paragraph 5 of Practice Direction 3/13.

On the basis of the above conclusions the point in limine has been well taken.  There is no valid application before me as the application is out of time and has been improperly brought without an application for condonation and extension being sought.  Further this application does not comply with the applications provided for in Practice Direction 3/13.  The term struck off the roll was used and will once again be used, to effectively dispose of a matter which was fatally defective and should not have been enrolled in that form in the first place (See paragraph 3 of Practice Direction 3/13.)

In any event, on the merits, the applicants seem to be questioning the conclusions of this court regarding the non-compliance with section 98 (10) of the Labour Act of their appeal.  They insist that the appeal should be heard as it “is without doubt based on a question of law”  New issues on prescription through failure to conclude the disciplinary hearing within 14 days are being raised for the first time before me which were not raised before the arbitrator.

It is improper for the applicants to “appeal” my own earlier decision before me and call it an application for reinstatement.  It is further impermissible for the applicants to want to raise a new argument not raised before the tribunal a quo.  Chikanda v UTC SC 7/99.

Consequently the application for reinstatement of the applicants’’ matter is dismissed.

Dube, Manikai & Hwacha, respondent’s legal practitioners