Phillip Chikumbu v TM Supermarkets (Private) Limited

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LCH273/23
HELD AT HARARE 11JULY 2023
CASE NO LC/H/635/22
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LCH273/23 HELD AT HARARE 11JULY 2023	CASE NO LC/H/635/22 15 SEPTEMBER 2023

IN THE MATTER BETWEEN

PHILLIP CHIKUMBU	APPLICANT

AND

TM SUPERMARKETS (PRIVATE) LIMITED	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPLICANT	: IN PERSON

FOR THE RESPONDENT	: Ms L SIBANDA (LEGAL PRACTITIONER)

MAKAMURE J.

This is an application for reinstatement of an application for condonation for late noting of an appeal which was deemed abandoned in terms of the Rules of this Court Statutory Instrument 150 of 2017 (S.I.150/17). It is opposed.

Rule 36 of S.I. 150/17 provides for reinstatement as follows:

‘ Where a matter has been deemed abandoned in terms of these rules, a Judge may, on good cause shown upon application by a party made within twenty – one days of the party becoming aware of the abandonment , order that the matter be reinstated.’

And Rule 46 provides for abandonment as follows:

46. Abandonment of matters Where for any reason—

proof of service is not filed by the applicant or appellant with the Registrar in the manner and time prescribed;

the Registrar does not receive heads of argument from an applicant or appellant who is represented by a legal practitioner or representative within the prescribed period;

the matter shall be regarded as abandoned and the Registrar shall inform the parties accordingly:

Provided that the matter may be reinstated by a Judge in chambers on good cause shown upon application made within twenty-one days of the abandonment.’

In the present case the matter was deemed abandoned on 16 June 2022. This was because Provisions of r46(a) had not complied with. The applicant appears to have been unaware of the abandonment and further still the reasons for such abandonment. This is because he was at the material time legally represented. It was only after he personally followed up the matter that he became aware of the abandonment. According to his founding affidavit and his address before this Court , it would appear that there were issues of communication between the applicant and his erstwhile legal practitioner. As soon as he (the applicant),became aware that his court papers were not moving properly, he personally filed the present application on the 19th of July 2022 and abandoned the services of his erstwhile legal practitioner. He was therefore was four (4) days out of time.

It is important to ensure that labour disputes are not resolved on the basis of technicalities but that such technicalities be put right. Dalny Mine v Banda 1999 (1) ZLR 220 (S).

The respondent vehemently opposes the application for reinstatement arguing that the main application has got no merit. The following are some of the authorities which were cited in support of both the present application and the application for condonation. At The Ready

Wholesalers(Pvt)Ltd t/a Power Sales v Katsande and Others [2003] ZWSC7; Ruturi v Heritage Clothing (Pvt ) Ltd 1994 (2) ZLR 374 (S).While the authorities are appreciated, the view of the Court is that it is the application for reinstatement which is before it and not the one for condonation. The Court will therefore confine itself to the application for reinstatement. This is to ensure that justice is done and seen to be done. If the Court were to consider the two applications together where the applicant was not prepared for such , it would neither be fair nor equitable.

The Rules require that ‘good cause’ be shown before an application for reinstatement can be granted or declined. In the present case, it would appear that there was miscommunication between the applicant and his erstwhile legal practitioner. From the applicant’s address in Court and in his founding affidavit the legal practitioner in question communicated with the applicant in response to some of the applicant’s queries through the ‘WhatsApp’ platform.

The legal practitioner did not depose to an affidavit for the benefit of the Court. However, in view of the impression created by the applicant , that is, as soon as he became aware that his papers were not in order, he took measures to correct the situation, I am prepared to give the applicant the benefit of doubt and believe him.	Further the applicant’s papers had been served on the respondent but such service had not been timeously brought to the attention of the Registrar as required by the Rules of this Court. This led to the matter being deemed abandoned. Had the applicant been aware of the situation earlier, I believe that he would have advised the Registrar timeously. Had that happened the present application would not have been necessary.

After considering the papers and addresses made by the parties, it is my view that the applicant has shown ‘good cause’ as required by the Rules, why the matter should be reinstated . In view of this  the application succeeds.

The following order is made. It is accordingly ordered that

The application for Reinstatement of an Application for Condonation be and is hereby granted.

Applicant’s case Number LC/H/401/22 be and is hereby reinstated onto the Roll.

There is no order as to costs.

HONEY & BLANCKENBERG, RESPONDENT’S LEGAL PRACTITIONERS