Redwatch Security (Pvt) Ltd v Samuel Shava & 11 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/264/16
HELD AT HARARE 15 MARCH 2016
CASE NO
JUDGMENT NO LC/H/264/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/264/16

HELD AT HARARE 15 MARCH 2016				CASE NO LC/H/1009/15

& 13 MAY 2016

In the matter between:

REDWATCH SECURITY (PVT) LTD				Appellant

And

SAMUEL SHAVA & 11 OTHERS				Respondents

Before The honourable L Kudya, Judge

For Appellant			Mr E T Muhlekiwa (Legal Practitioner)

For Respondents		Mr J Majatame (Legal Practitioner)

KUDYA, J:

Following the dismissal of its postponement application the appellant was granted leave by the court to address it on the bar operating against it vis filing of heads of argument.  After oral submissions on that aspect the court advised the parties that they will hear of the court decision from the clerk of court.

These are the reasons for the decision and this is decision on the submissions made on the upliftment of the bar operating against appellant.

In support of its application for uplifment of the bar the appellant repeated what it had said in its postponement application.  It reiterated that it had not put its lawyers into funds hence the failure by the lawyers to file heads on its behalf.  It also stated that it had a good case on the merits.  This is so because in its view arbitrator erred at law by shifting the onus to prove that salaries were not paid on the appellant instead of applying the legal principle of “he who alleges must prove” and ask employees to prove that they had not been paid as they alleged.

It argued further that the registration and enforcement of the award was no bar to it appealing against the arbitral award notwithstanding the enforcement and registration of the same.  In the result it prayed that the court be persuaded to lift the bar operating against it and that it be allowed to file its heads of argument within 5 days of the order and that appeal proceeds to be heard on the merits.

In response the respondents were adamant that appellant had not good case for the upliftment of the bar.  Besides in their view the decision of that lies in the discretion of the court.  They also argued that the appellant does not have a good case on the merits.  This is so simply because on more than 2 occasions arbitrator afforded it the opportunity to bring proof that it had paid respondents since it argued it had paid the respondents employees their dues.  The respondents were therefore adamant that the prayer for the upliftment of the bar and the prayer to have matter dealt with on the merits was just a delaying tactic employed by the appellant.

The law relating to upliftment of the bar is not for divorced from general condonotion principles.  These are set out in the celebrated cases of Jansen v Acavalos 1993 (1) ZLR 216 (S).  These are in summary form, reason for default and prospects of success.  In the case at hand all that has been repeated as reason for the default is that the appellant’s lawyers were not put into funds.  It is trite that the lawyer prosecutes a matter on his client’s behalf and it is the duty of such client to put him into fund so that he can further his or its interests.

In the case at hand no cogent reasons have been advanced why that was not done.  As earlier observed in the postponement ruling the appellant took a casual approach to the appeal and only decided to act after the Registrar had mero motu set the matter down for the hearing.  The law is clear that it will only help the vigilant and not the sluggard.  The court is not satisfied that appellant has advanced cogent reasons why the bar should be uplifted on account of its failure to put its lawyer into funds.

Turning to the 2nd rung of merits it is indeed correct as observed by both parties that the law is clear that he who alleges must prove.  In case at stake claimants set out their matter and in response employer argued that it had paid them their dues.  That averment needed support from it and that shifted onus to it.  The court is therefore not persuaded that the appellant has a good case on appeal.  It was given an opportunity to present the records showing the payments.  It did not do so and it cannot fault arbitrator for taking the employee’s mere say so.

It is not doubted that registration or enforcement of an award does not extinguish appellate rights but as stated above the appeal is porous for reasons already stated.  In the ultimate it is clear that no good case for upliftment of bar has been made out and the bar has to stand.  The matter has to be consequently disposed of as an unopposed matter.

It is noteworthy that in the postponement submission the respondent had already prayed for a default judgment and no purpose would be served to ask them to repeat that prayer.  It is the court’s considered view that since court is satisfied that appellant is properly barred t is within the law to dismiss the appeal for non-compliance with the rules vis filing of the heads of argument.

IT IS ORDERED THAT

Application for the upliftment of the bar operating against appellant vis filing of heads of argument being without merit it be and is hereby dismissed.  The bar therefore remains in operation.  The appeal is consequently dismissed on account of the bar operative against the appellant.

Each party is to bear own costs.

Mahuni & Matutu Attorneys’ At Law, appellant’s legal practitioners

Gama & Partners, respondent’s legal practitioners