Mazowe Rural District Council v Douglas Karuma and 5 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/720/2014
HARARE, 10 OCTOBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/720/2014

HARARE, 10 OCTOBER 2014		     	      CASE NO. LC/H/APP/274/14 AND 24 OCTOBER 2014

In the matter between:-

MAZOWE RURAL DISTRICT COUNCIL			Applicant

And

DOUGLAS KARUMA AND 5 OTHERS				Respondents

Before Honourable L.M. Murasi, Judge

For Applicant		Mr. T. R. Madzingira (Legal Practitioner)

For Respondent		Mr. J. B. Chaka (Trade Unionist)

MURASI, J:

On 9 May 2014 this Court, dismissed Applicant’s application for rescission of the judgment of MUZOFA J which had been handed down on 30 January 2014.  Applicant is dissatisfied with that decision and seeks to approach the Supreme Court.  This is an application in terms of section 92F of the Labour Act [Chapter 28:01].  The basis of the appeal is that the Court did not give due weight to Applicant’s written submissions in considering the prospects of success.  Further, it was averred that the Supreme Court should be requested to correctly state the interpretation and applicability of Rules 19 and 26 of the Labour Court Rules.

At the commencement of the proceedings, Respondents’ representative raised a point in limine in that the issues raised by Applicant were not on points of law and thus the application should be dismissed.  The Court dismissed the application not because the grounds so formulated were sufficient for a referral to the Supreme Court, but that they would amount to points of law for the purposes of determining the application in question.

Appellant’s Counsel submitted that this Court erred in not finding that there were prospects of success when it determined the application for rescission.  It was stated that the second issue related to the interpretation of Rule 19 of the Labour Court Rules.  It was argued that after NDEWERE J had postponed the matter sine die the Rule no longer applied.  It was further stated that the Supreme Court was likely to find favour with Applicant’s interpretation of the application of the Rule.  Thirdly, it was submitted that the Court’s interpretation of Rule 26 was erroneous and the Supreme Court was likely to overturn the ruling on appeal.

Respondents’ representative submitted that Applicant’s application was against the exercise of discretion by the Court.  It was argued that the Supreme Court had already held that interference with the discretion of lower court or tribunal could only be justified where there was a gross misdirection.  It was further submitted that the judgment clearly showed that the submissions were taken into account and applicant seemed to suggest that only oral submissions were taken into account with the written submissions being discarded.  As regards the interpretation of Rule 19, Respondents’ representative submitted that Applicant’s Counsel was in error as NDEWERE J has indeed stated that Applicant was to abide by the Rules.  As far as the interpretation of Rule 26 was concerned, it was argued that this could not be taken to mean anything apart from “during the proceedings” as provided in the law.

It is trite that the approach to adopt when considering an application for leave to appeal should not be based on whether an appeal is arguable or not, but on its prospects of success.  Put differently the test is whether the applicant has a reasonable prospect of success on appeal.  It is also trite that the Court should guard against passing a vote of confidence in its judgment.  It is also a truism that for the Supreme Court to interfer with a decision of this Court, there must be evidence of an irregularity or misdirection or where the manner the court exercised its discretion was so unreasonable as to vitiate the decision made.  {See HAMA vs NRZ 1996 (1) ZLR 664 (SC), S v NCUBE 2001 (2) ZLR  556 (S)}.  The Applicant needs to demonstrate that this has happened in this matter.

Applicant has stated that the Court did not consider the submissions on the prospects of success in arriving at its decision.  I am of the view that Respondents’ representative’s submissions on this point are correct.  The Court made a finding on this point.  The Court made the following observation:

“The Court found no meaningful submissions made by Applicant on this point.  Applicant’s Counsel urged the Court to allow the matter to be determined on the merits as it was crucial to determine ‘employer/employee relationship.’  This is hardly a bona fide explanation on an existing defence as it is not substantiated.”

The Court therefore found that there were no meaningful submissions on the prospects of success in that matter.  This means that the point that Applicant seeks to raise was considered by the Court in the application for rescission.

The second issue concerns the interpretation of Rule 19 of the Labour Court Rules.  It was Applicant’s submission that after NDEWERE J had postponed the matter sine die, that Rule ceased to apply as that Court was then to determine the procedure.  It was further argued that the Supreme Court was likely to come up with the decision that Rule 19 would not apply after a Court had postponed a matter sine die.  This is indeed a brave and novel submission.  A look at the facts will help unravel the issue in its proper perspective.

The matter was set down to be heard on 20 June 2013 as Applicant had not filed its Heads of Argument as prescribed in the Rules.  On 20 June 2013, the Judge, after representations by Applicant, used her discretion and allowed Applicant to file Heads of Argument and postponed the matter sine die.  In some circumstances, Applicant would have been barred.  Applicant did not file these Heads of Argument until October 2013.  Meanwhile, on 5 September 2013 Respondents had approached the Registrar to have the matter set down seeing that Applicant had not filed any Heads of Argument since 20 June 2013, some two and a half months later.  This is the matter that was brought before MUZOFA J on 30 January 2014.  Justice Muzofa’s order was to the effect that Applicant had failed to file Heads of Argument in terms of Rule 19 (1) (a) and proceeded to uphold the appeal.

Appellant’s Counsel’s argument is that the postponement by NDEWERE J meant that Rule 19 no longer applied.  By extension, the argument means that the matter should have lain in limbo as that particular Rule no longer applied.  I think it is proper to comment that the Labour Court is a creature of statute and everything that the Court does should be within the four corners of the statute.  The Court cannot on its own create its own rules in any particular case.  I believe this is why the Rules were put in place, to have consistency, uniformity, transparency and reliability.  I am not persuaded by Applicant’s submission that the postponement of a matter by a judge would result in a departure from the Rules.  I associate myself with the words of ZIYAMBI JA in NRZ vs ZARU 2005 (1) ZLR 341 (S) at 347 A:

“Thus before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application ‘in terms of this Act or any other enactment.’  This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court of the type that the applicant seeks to bring.”

The gravamen of this decision is that the Labour Court is enjoined to follow the provisions of the Act and the attendant Rules.  I am of the view that Courts are not at large to avoid the clear and unambiguous language of an Act of Parliament.  As regards the Rule referred to by Applicant, I do not find that there is any ambiguity requiring the interpretation and clarification by the Supreme Court.  There is no absurdity that arises from a reading of the Rule in question.  In my view, the Supreme Court will not assign any different meaning to it.  In actual fact the Supreme Court will most likely find the averment by Applicant that a judge can alter the Rules to be absurd.  There are no prospects of success in this respect.

The Court also finds that the above observations apply to the allegation that Rule 26 should be afforded an elastic meaning to cover situations where the Court was not charged with dealing with the matter.  My understanding of any time before or during the hearing is that it means precisely during those proceedings before that Court.  It admits of no different interpretation.  The Supreme Court is unlikely to find in favour of Applicant.

The Court observes that Applicant is dissatisfied generally with the use of discretion by the Court.  It is trite that in the exercise of discretion, which is to be exercised judicially, it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice.  In casu on 20 June 2013 Justice Ndewere exercised her discretion and allowed Applicant to file Heads of Argument which had been overdue.  By 5 September 2013, when Respondents approached the Registrar, Applicant still had not filed its Heads of Argument.  Applicant seeks a third bite of the cherry.

Applicant in my view has failed to demonstrate that the Court misdirected itself in exercising the discretion that it did in determining the matter.

In conclusion, I am of the considered view that Applicant has no prospects of success on appeal and the application is accordingly dismissed with no order as to costs.

MATIZANADZO & WARHURST, Applicant’s legal practitioners