Lowveld Rhino Trust v Senele Dhlomo-Bhala

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/229/2014
HARARE, 4 MARCH 2014
CASE NO LC/H/804/2012
JUDGMENT NO LC/H/229/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/229/2014

HARARE, 4 MARCH 2014 &			CASE NO LC/H/804/2012

11 APRIL 2014

In the matter between:

LOWVELD RHINO TRUST						APPELLANT

Versus

SENELE DHLOMO-BHALA						RESPONDENT

Before The Honourable Makamure J

For the Appellant	Mr A Mugandiwa (Legal Practitioner)

For the Respondent Mr T Marume (Legal Practitioner)

with him Ms C Maposa (Legal Practitioner)

MAKAMURE J:

This is an appeal against an award by an arbitrator. Before the appeal could be argued two points in limine were raised on behalf of the respondent, a third point in limine having been abandoned.

It was submitted on behalf of the respondent firstly that the appellant did not comply with the provisions of Rule 15 (1) (c) of the Rules of this court Statutory Instrument 59/2006 (“the Rules”).

Rule 15(1) (c) provides as follows:

“15	Appeals

A person wishing to appeal against any decision, determination or direction referred to in section 97 (1)(a) or (b) of the Act, or on a question of law in connection with any arbitral award in terms of section 98 (10) ofthe Actshall, within twenty-one days from the date when the appellant receives the decision, determination or direction on award, do the following-

…

…

Serve one copy of the notice of appeal, together with a copy of the documents, if any, referred to in paragraph (b), on the respondent; and …” (Emphasis added)

Secondly it was submitted on behalf of the respondent that the appellant did not comply with provisions of Rule 19 (1) of the Rules which provides as follows:

“19	Heads of Argument

Where an applicant or appellant is to be represented by a legal practitioner at the hearing of the application, appeal or review, the legal practitioner shall-

Within fourteen days of receiving a notice of response to the application, appeal or review, lodge with the registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities, if any, which he or she intends to cite; …” (Emphasis added)

It is common cause that the legal practitioner for the appellant did not comply with the above cited rules. The reason profferedis that sections 69 and 85of the Constitution of Zimbabwe provide for a person’s right to a fair hearing amongst other rights. Section 69 (2) provides:

“(2)	In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law.”(Emphasis added)

Section 85 of the Constitution provides for the enforcement of fundamental human rights and freedoms. Section 85 (2) provides as follows:

“(2)	The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection.”

The provisions of Rules 15 and 19 referred to above are peremptory. The party in question has got no choice but to comply with them.

The appellant’s legal practitioner chose not to comply with, or to contravene, the Rules of this court deliberately so that they can take refuge in the provisions of the Constitution. The sections of the Constitution referred to are quoted out of context. They cannot be used to exempt a party from complying. That would be absurd.

Clearly in casu the appellant is trying to hide behind his little finger. There is no fundamental right which has been infringed. The parties are already before a court of law. Section 85 (3) provides as follows:

“The rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1), and those rules must ensure that …‘(the section then provides for how the need to ensure enforcement is to be facilitated).

The parties are already before the court and exercising their rights. Parties are obliged to follow the rules. The Constitution itself requires that courts provide rules of procedure.

It is demonstrably clear that the legal practitioner went out of his way not to comply with the Rules of this court. It is regrettable that a legal practitioner who is also an officer of the court makes a conscious decision to disregard the rules which enable this court to operate. If that attitude is allowed to continue unabated and legal practitioners are allowed to take a casual attitude towards this court,that would be catastrophic. Why would the Legislature set up a court, ensure that the court has rules of procedure and then decide that these rules of operation should be disregarded? In Tadious Gova v Zimbabwe Minining & Smelting Company (Pvt) Ltd HC-B-1-98 the High Court was considering an employer’s failure to comply with provisions of its own Code and remarkedas follows:

“There is no point in working out a Code, attaching to it certain conditions, then flouting those conditions…”

In the present case it is not an employer, it is the Legislature which promulgated rules of procedure for the operation of the Labour Court. Such rules cannot simply be disregarded and find excuse in the Constitution. A party which decides not to comply with the Rules of this Court must face the consequences of such non-compliance.

[See also Parks and Wildlife Management v Amos Ernest Pasinawako LC-H-288-2013.] The degree of non-compliance is high[See Chistopher Chiwara v C M E D LC-H-219-12]. This is undesirable and must be condemned.

It is my respectful view that when the Labour Court was established and its rules put in place there was a purpose for it. Just like any other court in this jurisdiction whose rules are observed, the Labour Court is not an exception. It deals with the basic human rights, ensuring not only that bread and butter issues for the simple man are protected, but it oils the wheels of industry by seeing to it, as much as practicable that thereis expeditious resolution of labour disputes. To then even imagine disregarding rules of procedure would in the end cause chaos and confusion. That cannot be condoned. This would only be serve to be: “to the detriment of the good administration of justice.” (See Beitbridge Rural District Council v Russel Construction Company (Pvt) Ltd SC-129-98)

Unfortunately when legal practitioners choose not to comply with the rules, it is the clients who suffer. It is undesirable for the courts to deal with interlocutory matters for time on end.This only serves to delay the finality to litigation. It was stated by the Supreme Court in Ndebele v Ncube 1992 (1) ZLR 288 that:

“It is a policy of law that they should be finality in litigation … We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then reargued …”

It is regrettable but it was unavoidable that the other party had to make the present application because the applicant’s legal practitioner is not willing to comply with the Rules of this court. I say regrettable because time is wasted unnecessarily. It was unavoidable because rules of the court must be complied with.

Failure to comply with the Rules of this court deliberately must be frowned upon and be condemned in the strongest possible terms.

Our labour law is developing.Lawyers may pursue an argument for purposes of developing the law in a particular aspect. That is highly commendable and it should be encouraged for:

“Nothing limits achievement like small thinking, nothing expands possibilities like unleashed imagination”(William Arthur Ward).

So yes,the law must develop.The imagination must be unleashed, but within reason. This is because it is not just an academic exercise but an exercise of one’s fundamental rights, which should lead to a resolution of a dispute. One of the ways of enriching our labour law is when legal practitioners present sound and well thought out argument before the courts. However if it is a question of a legal practitioner’s utter disdain of the rules of court and with the attitude that the court’s rules can be disregarded willy-willy then that is a recipe for disaster. It is hoped that the non-compliance in casuwas premised on a footing to develop the law instead of simple disrespect of the rules of this court.

Having stated the above, the Rules have not been complied with. This means that the appellant is not properly before the court. Further it is barred. It can only be heard after it has purged its non-compliance.

In view of the foregoing both points in limine are accordingly upheld.

Wintertons, appellant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners