PG Timbers Zimbabwe Limited v Jotham Romo

IN THE LABOUR COURT OF ZIMBABWE                   JUDGMENT NO. LC/H/151/2013

HELD AT HARARE ON 21 MARCH 2013                    CASE NO. LC/ H/519/2012

In the matter between




PG TIMBERS ZIMBABWE LIMITED                          - Applicant
And

JOTHAM ROMO                                                 -Respondent


Before The Honourable L. Kudya, President

For Applicant           -Mr A.T Muza (Legal Practitioner)

For Respondent          - Mr G. Madzoka (Legal Practitioner)




KUDYA, L.


      This is an application in terms of rule 19(3) a of the Labour Court Rules

2006 for the dismissal of the Respondent’s appeal on the basis that he failed to

file his heads of argument within the time limits prescribed by the rules.



      The brief facts of the case are that the Respondent was dismissed by the

Applicant on the basis of failing to obey lawful orders in contravention of the

Applicant’s code of conduct. Aggrieved by his dismissal, he appealed to the

Labour Court on the 20th July 2012.



      In terms of the Labour Court rules he was supposed to file his heads of

argument fourteen days from the date when he received the notice of response.
The notice of response was served on him on 10 August 2012. On the 10 th

September the applicant made this application on the basis that since the

Respondent had not
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filed his heads as required by the rules it effectively meant that he was not keen

to prosecute his claim to finality. It therefore moved the court to grant the

instant application on the basis of the Respondent’s default of filing his heads of

argument on time.



Rule 19 3 (a) provides as follows:


      “ (3) Where heads of argument that are required to be lodged in terms of subrule (1) or (2)
      are not lodged onbehalf of the applicant, appellant or respondent, as the case may be, within
      the period or at the time specified in
      those provisions—
      (a) the registrar shall nevertheless set down the application, appeal or review for hearing in
      terms of rule 21unless, at any time before the matter is set down, the party who is not in
      default applies to a President ofthe Court in chambers for the application, appeal or review to
      be dismissed or granted, as the case maybe”



      When the matter was placed before the court in chambers, the court

observed that a day after this application was filed with the court; the

Respondent went on to file heads of argument in the main appeal case. No

condonation was sought to file same out of time neither were any reasons

proffered for the failure to file heads timeously as required by law.



      The court advised the Registrar to set the application down on the

ordinary roll before it ,so that the parties concerned could clarify the issues on


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the application to the court. This would then enable the court to rule on the

application in question.



On the date of the hearing of this application the Respondent raised a number
of points in limine. These are primarily the subject of this judgment.




                                               JUDGMENT NO. LC/H/151/2013

      The first one was that counsel for applicant Muza was improperly before

the court since he was also the deponent of the founding affidavit which is the

basis of the instant application. In the result, he could not be the deponent and

be the same counsel who argues the matter before the court.



      The second point was that there was no application before the court

because it did not comply with the rules of court. In this respect, the

Respondent argued that the affidavit which the Applicant relied on was not

commissioned hence it was not an affidavit at all. Given the fact that an

application stands or falls on the four corners of the founding affidavit it was

therefore, Respondent’s argument that the absence of the commissioner of

oaths’ signature and stamp was fatal to the application and it therefore ought

to be dismissed .



      Finally, Respondent argued that the notice of response which the

applicant had served him was fatally defective since it did not comply with the

set format contained in the Labour Court Rules. It was therefore his argument

that there was therefore no notice of response served on him obliging him to


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respond to same within the fourteen days stipulated by the rules. He prayed

that for the above reasons the application should fail.



       On the other hand the Applicant conceded that it was indeed irregular for

the deponent of the founding affidavit to be the same counsel to argue the case

before the court. It however maintained that no prejudice was likely to ensue

from this since what was before the court was merely an application to be

decided primarily on the papers.



       To that end, there would be no need for oral submissions from counsel. It

however hastened to mention that if Respondent persisted in his argument on

representation it would pray that the matter be postponed to allow another

Counsel
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from Appellant’s counsel law firm to come and make submissions in the

deponent’s stead.



       The Applicant also maintained that it had not served the Respondent with

the application since rule 19(4) allows Applicants in cases of this nature not to

serve the Respondents. It maintained that the critical question was just whether

or not the Respondent had complied with the rules within the prescribed time

limits. If not then, in its view it is entitled to the relief which it is seeking.



       It contended further that, applications of this nature are taken effectively

as default applications which do not require presence of counsels before the

court to make submissions. The case is basically decided on the papers only.


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      The applicant stated further that the rules of court oblige the Registrar to

serve them with the notice of response inviting them to respond to the appeal.

In the instant case, this was not done and the Applicant only filed a notice of

response just out of an abundance of caution. In the result, it could not

improvise the forms which it had to receive in the regular form from the

Registrar. It maintained that, it was under no obligation to serve the notice of

response in the correct format as it had not been invited to do so by the

Registrar as required by the rules of the court.



      On the issue of the defective founding affidavit, the Applicant maintained

that the affidavit was signed or if not then it could have been a question of the

photocopier missing some of essential components of the document. It

therefore maintained that, the application was properly before the court and it

had cogent foundation so it prayed that it be granted.



      Applicant maintained further that the Respondent became aware of the

present application well in advance because the issue of an out of court

settlement
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was only discussed way after the time for the filing of the heads of argument by

the now Respondent had already lapsed. Applicant’s counsel informed

Respondent‘s counsel of the intention to make such an application. It was

Applicant’s view that if the Respondent seriously wanted to oppose this

application it would have done so.




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         In his right of final response, the Respondent maintained that, he had

been pursuing an out of court settlement hence his delay in filing his heads of

argument. He was also adamant that, since the founding affidavit was not

commissioned it was fatal to the application as there effectively was no

application before the court on that score.



         It is pertinent to note that as regards the affidavit debate, this raged on

and on .It went all the way to a point where Respondent counsel almost accused

Applicant’s counsel of unprofessional conduct of having tampered with the

affidavit in question .Applicant’s counsel in turn hit back by praying that the

court orders costs debonis on the basis that the onslaught was tantamount to

tarnishing his professional image.



         The matter was only put to rest by the intervention of the court

interpreter who was at the hearing. The interpreter observed from the record

that, two sets of applications on the same matter and content had been filed.

One had a properly commissioned affidavit and the other one did not, but they

both bore the same date and stamp of issuing. This put to rest the argument

about the founding affidavit being said to be defective to the extent of being

fatal to the case. It is therefore clear that the application was properly before

the court based on the properly commissioned affidavit.



         As regards the notice of response, it is noteworthy that as per rules it is

the Registrar’s obligation to invite the Respondent in a particular matter to put

in his
                                               JUDGMENT NO. LC/H/151/2013


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response on the prescribed form. In the instant case this was not done resulting

in the now Applicant serving the now Respondent with a notice of response

which did not conform to the rules.



      The issue which then comes to the fore is: upon who should the

Registrar’s sins be visited, the Applicant or the Respondent. It is regrettable that

the rules were flouted in this respect and none of the parties should be made to

bear the brunt of the anomaly committed at the hands of the Registrar.



      In the same light, where the now Respondent was seized with a response

which is not in conformity with the rules the question is then how much was

expected from him in terms of complying with the time lines based on the

defective response.



      The law is clear that court rules are made for the court and not the court

for the rules but, where it is apparent as the facts of the instant case show that

there was bungling of same not only by the parties but by the court itself in the

office of its Registrar it would be unfair to penalize any of the parties concerned.



      The just thing in the circumstances is to allow the case to get to its logical

conclusion by allowing it to be argued through on its merits notwithstanding

the bungling. The court is satisfied that the justice of this case does not dictate

that the matter be dismissed technically for the flouting of time lines by the

Respondent who is blaming the Applicant for not serving him with the response

in the correct format.




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      The Applicant in turn blames the Registrar .The ends of justice can only be

met by allowing the matter to be seen to its logical conclusion on the merits. In

the result the application to have the now Respondent’s appeal dismissed in

terms of rule 19 3(a) should accordingly be dismissed. Both parties should be

allowed to file any
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other documents relevant to the case so that the matter can be concluded on

the merits.



It is therefore ordered as follows:

1. The application for dismissal of the now Respondent’s claim being without

merit be and is hereby dismissed.

2. Both parties are granted leave to file and exchange with each other all

outstanding documents in relation to the main appeal by 31 st May 2013 so that

the court can decide the matter on the papers.

3. If either party is keen on making any oral submissions before the court, he/it

can approach the Registrar so that the matter can be set down for such

submissions before judgment is handed down based on the papers filed of

record.

4. Each party is to bear own costs.




L.Kudya ___________________

President –Labour Court


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Mawere and Sibanda Legal Practitioners – Applicant’s Legal Practitioners
Wintertons Legal Practitioners – Respondent’s Legal Practitioners




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