Olivine Industries (Pvt) Ltd v NEC for Detergent Edible Oils & Fats and Detergent Edible Oils & Fats Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/621/2016
HARARE, 14 SEPTEMBER 2016 &
CASE NO LC/H/APP/200/2016
7 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/621/2016

HARARE, 14 SEPTEMBER 2016 &		          CASE NO LC/H/APP/200/2016

7 OCTOBER 2016

OLIVINE INDUSTRIES (PVT) LTD				    APPLICANT

And

NEC FOR DETERGENT EDIBLE OILS & FATS		   1ST RESPONDENT

And

DETERGENT EDIB LE OILS & FATS WORKERS		   2ND RESPONDENT

UNION

Before the Honourable Chivizhe J

For the Appellant	     Ms N Moyo (Legal Practitioner)

For the 2nd Respondent   Ms P Beta (Trade Unionist)

CHIVIZHE J:

The applicant seeks leave to appeal against my judgement of the 22nd January, 2016.

The application is opposed by the respondent on the basis that the applicant having failed to filed its Heads of Argument within 14 days of receipt of the respondent’s Notice of Response the applicant is technically barred and therefore has no right of audience before the court.

The respondent further opposes the application on the basis that the respondent having filed an earlier application for dismissal of the present application on the basis of applicant’s failure to file its Heads of Argument this court should refuse to entertain the application before the other application has been determined.

Application for Dismissal in Terms of Rule 19(3)(a) of the Labour Court Rules, 2006

The respondent filed on the 27th April, 2016 an application in terms of Rule 19(3)(a) for the dismissal of the application for leave by the Applicant. The background circumstances were that the applicant had filed its application for leave to appeal to the Supreme Court on the 26th February, 2016.   The respondent then filed its Notice of Response on the 14th of March, 2016.   The applicant was required, on the basis of Rule 19(1)(a), of the Labour Court Rules, 2006  to file Heads of Argument within 14 days of receipt of the Notice of Response.  The applicant having failed however to file such Head of Arguments within the stipulated period the respondent then filed its application for dismissal of the application for leave to appeal to the Supreme Court.  The application is premised on Rule 19(3)(a) of the Labour Court Rules, 2006.

It is clear on the basis of the papers before me that the Registrar ought to have proceeded to place the application for dismissal before a Judge in Chambers for that application to be determined first.  Through an error or oversight the Registrar set down the application for leave to appeal for hearing first.

It is however my considered view that even if the application for dismissal had been placed first before me the court would still be inclined to dismiss that application.  There is only one reason which is related to the prospects. The court is of the view that the applicant in the main application raises a point of law which in the interest of justice and fairness ought to be settled by the superior court.  It is for this reason alone I would have dismissed the application. The application for dismissal in terms of Rule 19 (3)(a) of the Labour Court Rules, 2006 is consequently dismissed.

The Test for Granting Leave to Appeal

The test to be applied in an application for leave to appeal is that referred to in Section 92F(2) of the Labour Act [Cap 28:01]. Section 92F (2) reads as follows:

“92F Appeals Against Decisions of Labour Court

An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.

Any party wishing to appeal from any decision of the Labour Court on a question of law in terms of subsection (1) shall seek from the President who made the decision or, in his or her absence, from any other President leave the appeal to decision.”

It is clear on the basis of the provisions in Section 92F(1) that the Labour Court in determining an application filed under Section 92F is required to ensure that the application meets the statutory criteria as set out in Section 92F(1). The proposed appeal must therefore raise a point of law. Further under the common law an appeal will be granted if there are reasonable prospects of success, the amount in dispute is not trifling; the matter is of substantial importance to on o both of the parties concerned; the balance of convenience favours the granting of such leave ad where there is a point of law that would best be settled by the highest court;  The court was aptly referred to S Mcgown 1995 (2) ZLR 81 (S) and P Chamisa  NO v Paterson 1993 (S) ZLR 163 (H), Chikafu v Dodhill (Pvt) Limited Ors 2009 (1) ZER Z93 (S).

On the basis of its papers the Applicant seeks to impugn this court’s decision on one point which is that this court committed an error of law by allowing the application for review to proceed on the basis of grounds which clearly fell outside the parameters as set in Section 27 of the High Court Act [Cap 7:06]   This court in determining the point had found as:

“The applicant in casu  needed to a the time of filing rely on either of the grounds for review as outlined in Section 27 of the High Court Act [Cap 7:06] referred to supra.  The application however is not premised on any of these grounds.  The court, however considering that the Applicant is a trade unionist represented by a non-lawyer, is inclined to overlook the error.”

The applicant’s submission is that the court had no discretion to consider and accept the grounds which fell outside the ambit of Section 27 of the High Court Act [Cap 7:06]. Further the court had no business in seeking to plead the Respondent’s case on its behalf on the basis of its representation by a non-lawyer or trade unionist.  The trade union must by its nature be a custodian of the labour laws of the country and therefore should be capable of drawing legal papers in accordance with the law.  On this basis the Applicant believes it has high prospects of success.

The respondent’s submission is that the applicant has poor prospects of success on the proposed ground of appeal.  The court properly exercised its right under Rule 26, of the Labour Court Rules, 2006 to depart from the rules and allow the application to proceed on the basis of the grounds for review as presented.  Although the grounds of review were not properly drawn the judge correctly allowed the ground as it was apparent from the respondent papers that the respondent was alleging an irregularity.  The submission by the respondent clearly has no merit. Rule 26 is improperly raised in there proceedings.  Rule 26 gives the Labour Court latitude to depart from its rules in the course of proceedings [in the interests of justice and fairness]. The rule however cannot operate to allow for a deviation from a clear statutory provision.

Having considered submissions made in support of the proposed grounds of appeal I am of the view that firstly, the proposed ground of appeal raises a point of law as envisaged under Section 92F (1) of the Labour Act [Cap 28:01] and secondly that the ground raises an arguable issue as to whether the Labour Court can, as a court of equity, in considering the application for review allow grounds not modelled on Section 27 of the High Court        [Cap 7: 06]. The issue is one which clearly has to be settled by the apex court.

ORDER:

In the event the following order is made;

The application for dismissal of the application for leave in terms of Rule 19(3)(a) is

dismissed.

The application for leave to appeal is allowed.

There is no order as to costs.

Coghlan Welsh & Guest, applicant’s legal practitioners