Parks and Wildlife Management v Amos Ernest Pasinawako

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/288/13
HELD AT HARARE ON 14th JUNE, 2013
CASE NO. LC/H/990/12
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO.LC/H/288/13

HELD AT HARARE ON 14th JUNE, 2013	    CASE NO. LC/H/990/12

In the matter between:-

PARKS AND WILDLIFE MANAGEMENT		-		Applicant

And

AMOS ERNEST PASINAWAKO			-		Respondent

Before the Honourable G. Mhuri, Senior President

For Applicant	: 	Mr.W.P. Zhangazha (Legal Practitioner)

For Respondent:	Mr. O. Mawadze (Legal Practitioner)

MHURI G.:

This is an application for leave to appeal to the Supreme Court by Parks and Wildlife Management (Applicant).

The background of this matter which resulted in this application is that:-

On the 10th December, 2012 Applicant (then Appellant) filed a notice of appeal to this Court against an arbitral award.  The case No. is LC/H/990/12.

On the same date the Registrar of this Court served a notice of response in LC2 Form to Respondent’s legal practitioners of record Manase and Manase calling upon Respondent to file his response to the appeal.

On the 18th December, 2012 Respondent filed with the Registrar his notice of opposition to the appeal and served Applicant with same.

On the 16th January 2013 Respondent filed an application in terms of Rule 19(3)(a) of this Court’s Rules Statutory Instrument 59 of 2006 for the dismissal of the appeal on the basis that Applicant had not filed its Heads of Argument as required under Rule 19 (1) (a).

Respondent served Applicant with the application on the 18th January, 2013 even though he was not obliged to. (Rule 19(4)).

On the 8th February, 2013 I issued an order granting the application i.e. dismissing the appeal as prayed for by Respondent.

The Order reads:-

“Whereas an application having been made in terms of Rule 19(3)(a) of the Labour Court Rules Statutory Instrument 59 of 2006, it is ordered that the appeal be and is hereby dismissed with costs.”

In terms of Rule 15 (2), the Registrar is required, within 30 days of receiving a notice of appeal in terms of subrule (1)(d) to give notice to Respondent requiring Respondent to file and serve its response within 14 days of the date the Registrar gives the notice.

This, the Registrar did on the 10th December, 2012 and Respondent duly filed his response on the 18th December, 2012.

In terms of Rule 19, Appellant was required to file its Heads of Argument within 14 days of receipt of Respondent’s response i.e. by the 11th January, 2013.

This, the Applicant failed to do.

Before a matter is set down for hearing, a party may, in terms of Rule 19(3) (a) and (4) make an application without notice to the other party, for the dismissal or granting of the appeal, application or review.

Rule 19(3) (a) reads as follows:-

(3)	“Where heads of argument that are required to be lodged on behalf of the applicant, appellant or respondent, as the case may be, within the period or at the time specified in those provisions-

the registrar shall nevertheless set down the application, appeal or review for hearing in terms of rule 21 unless at any time before the matter is set down, the party who is not in default applies to a President of the Court in chambers for the application, appeal or review to be dismissed or granted, as the case may be;”(Emphasis added)

However where no such application is made or granted before the date of set down, in terms of Rule 19(3)(b) the party that is not compliant with Rule 15 is barred.

Rule 19(3)(b) reads:-

“the defaulting party shall (if no application under paragraph (a) is made or granted) be barred and the Court may deal with the matter on the merits.”

In casu, Respondent proceeded in terms of Rule 19(3)(a) and the Court consequently dismissed applicant’s appeal.

It is against this Court’s granting of the order dismissing the appeal that Applicant seeks leave to appeal to the Supreme Court.  Applicant’s grounds of appeal to the Supreme Court as contained in its Notice of Appeal are as follows: -

“1.	The Learned Senior President of the Court Aquo erred and misdirected self at law in dismissing the appeal without allowing the preceding Arbitrator a chance to prepare the record of proceedings for the Labour Court to hear the appeal on record.

2.	The Learned Senior President of the Court Aquo erred and misdirected self at law in dismissing the appeal for want of Heads of Argument which were procedurally not due since the Respondent had not followed the Labour Court Rules in filing a Notice of Response which was not due and not yet requested by the Registrar as the rules of the Labour Court require.

3.	The Learned Senior President of the Court Aquo erred and misdirected self at law in interpreting the rules of the court in a manner that leads to a gross absurdity and injustice being that Heads of Argument in an appeal be filed without a record of appeal.

4.	The Learned Senior President of the Court Aquo erred and misdirected self in dismissing the Appeal without giving reasons for judgment.

It is trite that the proceedings in terms of Rule 19(3)(a) and even 19(3)(b) are proceedings done in the absence of the other party.  The determination thereof is in essence a default judgment.  It is an established legal position that one cannot appeal against a default judgment.  The proper procedure is to seek rescission of the default order in terms of Section 92C of the Labour Act [Chapter 28:01].

For the above principle I refer to the cases of :-

1.	Redstar Wholesalers V Livingstone Mutomba SC 142/04

where in Chidyausiku CJ had this to say

“The proceedings were conducted in the absence of the Appellant and the judgment itself is very clear on that point.  It certainly is a judgment given in proceedings conducted in the absence of one of the parties and in respect of which the absent party can apply for rescission in terms of Section 92C (1)of the Act.”

2.	Ramvali Trust’s Trustees V UDC Limited and Others

1998 (1) ZLR 110 S

in which McNally JA (as he then was) held that

“Where the High Court gives a judgment against a party who is in default, the judgment is not a final judgment and is not a judgment on the merits.

The party therefore cannot appeal against the default judgment to the Supreme Court until he has fist made an application for rescission of the judgment.  The default must be purged in the court in which it occurred…….”.

After scrutinizing Applicant’s grounds of appeal, I am not persuaded that he has an arguable case on appeal.

As for grounds 1 and 3, there is no proof that at the time of Respondent’s application the record was not there.  I find support for this in Rule 15.

Rule 15(1) reads as follows:-

“A person wishing to appeal against any decision, determination … or on a question of law in connection with any arbitral award in terms of Section 98(10) of the Act, shall within twenty one days from the date when Appellant receives the decision determination, direction or award do the following –

…

Make three copies of any of the documents referred to in paragraph (i) to (iv) below as are relevant to the appeal, if they are in the possession of the appellant –

…

…

a minute or record of any decision, determination direction or award made at the conclusion of any proceedings or hearing referred to in subparagraph (ii).

…

file with the registrar one of the other copies of the notice of appeal together with

a copy of the documents if any referred to in paragraph (b)”.

(Underlining is for emphasis)

Applicant was appealing against an arbitral award.  In his grounds of appeal he stated that he is appealing against the whole arbitration award by E.F. Chitsa dated 18 November 2012.  His grounds of appeal (5 in number) are very detailed.  It is therefore clear that he was in possession of the record of proceedings giving rise to the award.  In terms of Rule 15(1) supra he was obliged to and must have filed a copy of the award together with his notice of appeal.  I did not hear Applicant argue that it did not file the award.  It was this award and nothing else that was the basis of the appeal.

The award, a ten paged document contains the entire proceedings held by the Arbitrator.

From the applicant’s statement in opposition filed on the 31st January, 2013 it is clear that Applicant was advised of the set down procedure in this Court – which is, first come first served, which means that matters pending before the Labour Court, before Applicant’s, would be the first ones to be set down before its own.  This did not mean that the record was not there.

As for ground 2, the papers filed of record clearly show that the Registrar issued a notice to the Respondent in LC2 Form on the 10th December 2012 this was within 30 days of the filing of the Notice of Appeal and Respondent duly filed his response on the 18th December, 2012.

The Rule was therefore procedurally followed.

As for ground 4, this was an application by Respondent for dismissal of appeal for want of filing of Heads of Argument by Applicant.  The order granted was not a judgment on the merits.  The Court granted the prayer as requested for by Respondent.  There was no need to give reasons at all.  Moreover the citing of Rule 19(3)(a) in the order explains why the appeal was dismissed.

See the case of

Christopher Zvinavashe V Nobuhle Ndlovu SC 40/2006

in which Gwaunza JA’s comments on this issue are very apt.

“For the avoidance of doubt, it is declared that the giving of reasons for the default judgment in question by the court a quo was unnecessary and consequently of no force or effect.  It does not convert the default judgment into a judgment on the merits.”

(Underlining for emphasis)

Overally I find that Applicant has failed to establish that it has a reasonable argument on appeal.  I am persuaded by Respondent’s submission that its appeal is doomed for failure.

Accordingly it is ordered that leave to appeal to the Supreme Court be and is hereby refused.  Applicant to bear Respondent’s costs on the ordinary scale.

Chinogwenya and Zhangazha–Appellant’s Legal Practitioners

Manase and Manase–Respondent’s Legal Practitioners