Marufu Chigaadzira v TelOne

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/93/13
HELD AT HARARE, MARCH 8, 2013
CASE NO. LC/H/62/2012
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/93/13

HELD AT HARARE, MARCH 8, 2013		CASE NO. LC/H/62/2012

In the matter between

MARUFU CHIGAADZIRA				APPLICANT

And

TELONE						RESPONDENT

Before the Honourable B.T. Chivizhe:	President

For the Applicant         		: Mr T. Marume (Legal Practitioner)

For the Respondent		: Mr G. Chingoma (Legal Practitioner)

CHIVIZHE B.T.,

On the 13th of July, 2012 this Court granted an order by default in favour of the Respondent.  The Applicant has filed the present application for rescission of that order, upliftment of the bar and condonation for the late filing of heads of argument.  The application is opposed.

Reasons for default

The application has submitted his reasons for the delay of 4 months in filing of heads of arguments; that his legal practitioner was incapacitated from preparing heads because the Registrar of court had not yet prepared the record of proceedings; that the court should avoid resolving labour matter on technicalities taking into accounts the principles laid in Dalny Mine vs Banda 1999 (I) ZLR 220 (S);that the Respondent would suffer no prejudice were the default judgment to be rescinded; that he would stand to suffer prejudice were he to be denied an opportunity to be heard on the merits.

The Respondent’s counter-arguments were that; the delay of four months was inordinate; Applicant has tendered conflicting reasons for the delay and both reasons are not reasonable anyway.

Whilst the delay of filing of heads of argument is not inordinate the explanation tendered for the delay by the Applicant is not reasonable.  It has clearly been raised as an afterthought.  The Registrar of Labour Court is under no obligation to produce record of proceedings before a party can file heads.  In practice parties do produce heads even in the absence of the record and the Registrar is normally furnished with the record of proceedings shortly before the date of set-down.  As it turned out, Applicant produced heads of argument in the absence of the record.

Prospects of success

The Applicant submits that it has good prospects of defending the appeal by Respondent.  The Respondent does not agree.  The appeal is based on an arbitral award ordering Applicant’s reinstatement into Respondent’s employment.  The dispute between the parties centres on the subject of non-renewal of a fixed term contract.  The appeal has been noted on various grounds including, whether Section 94 (I) of the Labour Act can operate to defeat waiver, whether the evidence of waiver on Applicant’s part was established and whether the requirements of legitimate expectation as codified under Section 12 B (3) were established before the Arbitrator.  Judging by the amount of research that went into Respondent’s submissions on the issues pending before this court, I believe the appeal raises an arguable case on the merits.

Findings

It is the court’s finding that the Applicant has made out a good case for rescission of the order based on what I believe are the crucial issues raised for determination in the appeal pending before the court.  This is despite the unreasonable explanation by the Applicant for the delay in filing of heads of arguments for which I blame solely his legal practitioner.  The Applicant should therefore pay Respondent’s wasted costs for this application.

It is therefore ordered as follows;

The default order granted by this court on 13th July, 2012 be and is hereby granted.

The automatic bar operating against the Applicant in this matter be and is hereby removed.

Condonation for late filing of heads of argument is granted.

The matter is remitted back to the Registrar of Court for setting down of the appeal.

Matsikidze and Mucheche Legal Practitioners, Representing the Applicant.

Dube, Manikai and Hwacha Legal Practitioners, Representing the Respondent.