Ntombizodwa Dube v Zimbabwe Construction and Allied Trade Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/350/16
HELD AT HARARE ON 16TH FEBRUARY, 2016
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/350/16

HELD AT HARARE ON 16TH FEBRUARY, 2016 CASE NO. LC/H/APP/1141/15

AND 27TH MAY, 2016				     X REF: LC/H/308/13

In the matter between:-

NTOMBIZODWA DUBE							    Applicant

And

ZIMBABWE CONSTRUCTION AND

ALLIED TRADE WORKERS UNION					    Respondent

Before the Honourable Mhuri, J.

For Applicant	:	Mr A. Dururu (Legal Practitioner)

For Respondent	:	Mr R. Dembure (Legal Practitioner)

MHURI J.

This is an application for condonation of late filing of an application for rescission of a default judgment and upliftment of an automatic bar operating against applicant.

Respondent raised two points in limine, to the effect that:-

The order Applicant is seeking is incompetent as the application for the upliftment of the bar was dismissed on the 18th September, 2013 and hence is res judicata.

The application for rescission of judgment of the 18th September, 2013 is improper and unprocedural as the judgment is not a default judgment but a judgment on the merits and therefore final.

Respondent submitted that on the 18th September, 2013 Applicant made an oral application for the removal of the bar proffering the same explanation or reasons about the tardiness of her legal practitioner.

It was submitted that the Court heard both parties submissions, adjourned the proceedings and then upheld the bar.  The Court then proceeded to hear the merits of the case in terms of Rule 19(3) (b) of this Court’s Rules Statutory Instrument 59 of 2006 and issued an order setting aside the arbitral award.

As regards the second point in limine, Respondent submitted that the application for rescission is improper as the Order of the 18th September, 2013 was not a default order in the ordinary common law sense but an order on the merits as the Rules permit a hearing on the merits and a judgment on the merits which is final.

It argued that, the Court cannot reconsider the same issue and review its own judgment.  Section 92 C of the Act does not apply.  For this abuse of Court process, Respondent asked for costs on a higher scale.

In response, Applicant’s argument was that res judicata did not apply as no decision was made on the merits.  On the 18th September, 2013 the Judge merely restated the legal position as Applicant was already barred.  There was no judgment on the merits issued by the Judge.

There are two records pitting the same parties.  These are LC/H/308/13 and LC/H/APP/1141/15.

The first record is in respect of an appeal by Zimbabwe Construction and Allied Trade Workers Union vs Ntombizodwa Dube. (Herein referred to as the Appeal)

The second record is in respect of a combined application for the condonation of late filing of an application for rescission of a default order and upliftment of a bar operating against Applicant in the appeal.

The appeal record shows that on the 18th September, 2013 Respondent’s Legal Practitioner (Mr. Dendera) submitted to the court that Applicant was barred for failure to file Heads of Arguments timeously.

In response, Mr. Chengeta (Applicant’s legal practitioner) made the submission conceding that the Heads of Argument were not filed as required in Rule 19(2) (b) of the Court’s Rules.  He submitted that Applicant should not be made to suffer because of the negligent legal practitioners.   He thought that the Heads of Argument had not been filed.  When he discovered that they were filed, he could not do anything.  He submitted further that he should have made a written application for condonation.

In reply Mr. Dendera submitted that Respondent (Application) had not given any reasonable explanation for failure to file Heads of Argument.

They (Applicant) had not established that there are prospects of success on appeal.

After hearing the parties, the Court ruled that Respondent (Applicant) was barred.  As a result the Court proceeded to hear the merits of the appeal.  It heard the Respondent’s case which submitted that it stuck to its submissions filed of record and that the appeal be allowed.

The Court then proceeded to determine the appeal.  It stated,

“After reading documents filed of record and hearing submissions from Appellant it is ordered that:

Respondent is barred in terms of Rule 19(3)(b)

The arbitral award is hereby set aside.”

The appeal record also shows that on the 19th November, 2013 Applicant filed an application for the upliftment of the bar.

For some reason, not clear from the record, Applicant through a letter dated 21st May, 2015 advised the Registrar that she no longer was willing to proceed with the application.  She proceeded to file a notice of withdrawal to that effect.

On the 27th May, 2015 an order was issued to that effect.

On the 18th September, 2015 Applicant filed this combined application.

This is a delay of two years.  This is common cause and I must hasten to mention that this is very inordinate indeed.  I would also want to mention that even though it is a party’s right to approach the Courts for redress, there must be finality to litigation.

The proceedings at the onset of the appeal hearing on the 18th September, 2013 show a very cursory oral application for upliftment of the bar.  This was not granted and the matter proceeded to be heard on the merits.  The Court considered the Respondent’s submissions (oral and written) and proceeded to issue an order.  The fact that an order was issued does not mean the matter was not heard on the merits.

I agree with Respondent’s submission that if Applicant wanted full reasons it was proper for her to request full reasons from the Court.  Applicant was represented during the appeal proceedings.  She was only in default of filing Heads of Argument and was therefore barred from being heard.  This, in my view, does not fall under the ambit of Section 92 C (1)(a) of the Labour Act [Chapter 28:01] which provides for a rescission of a determination or order the Court made in the absence of the party against whom it was made.

See:

TREVOR WICKS

vs

COTTON COMPANY OF ZIMBABWE LC/H/591/13.

Further it boggles the mind why Applicant withdrew the first application only to file another one four months later.  I will not hesitate to state that the Court must be protected from abuse of this nature by litigants such as the Applicant.

I find that the points in limine raised by Respondent were well taken and uphold them.

To that end therefore the Applicant’s application is to be struck off.  Accordingly it is ordered that the application be and is hereby struck off with costs on the ordinary scale.

Dururu and Associate – Appellant’s legal practitioners

Mabulala & Dembure  – Respondent’s legal practitioners