Samson Zukwa Dandira v Zimbabwe Posts (Private) Limited t/a Zimpost

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 6 JUNE 2024
JUDGMENT NO. LCH288/24 CASE
CASE NO. LC/H/25/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 6 JUNE 2024

AND 3 JULY 2024

IN THE MATTER BETWEEN:-

JUDGMENT NO. LCH288/24 CASE NO. LC/H/25/24

SAMSON ZUKWA DANDIRA	APPLICANT AND

ZIMBABWE POSTS (PRIVATE) LIMITED

“t/a ZIMPOST)	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

Applicant	In Person

For Respondent	Mr. O. Kondongwe

MURASI J.,

THE APPLICATION

Applicant’s application is titled “Application for Adjudication Process in terms of section 93 (7) (ii) as read with section 89 (2) ( c) of the Labour Act, (Chapter 28:01) and Labour Court Rules, 2017.

The Founding Affidavit deals with the manner the Labour Officer dealt with the matter. It is further averred that the unfair labour practice is still continuing since 2007 to date. Averments are further made in the alternative that Applicant’s Constitutional rights have been interfered with, and, if necessary, Applicant would invoke the provision of section 175 (4) of the Constitution.

Respondent filed opposing papers with the main factor being that the matter was res judicata. To this end, Respondent attached Supreme Court judgment No. SC 125/23. The judgment goes through the procedural processes of the dispute between Applicant and Respondent. At page 3 of the cyclostyled judgment, the Court, per MAKONI JA, makes the following observations:

“In our view, the legitimate terms of reference to arbitration were confirmed by the Labour Officer in Form LR 4 and regurgitated by the arbitrator before being signed for by

the parties. The arbitrator was squarely within her terms of reference in determining the lawfulness or otherwise of the termination of the employment contract. Such a determination resolved the entire despute between the parties. The appellant confirmed the terms of reference before the arbitrator through the signature appended by his friend. He did not object, in the proceedings before the arbitrator, that the terms of reference did not cover the issue he referred to the Labour Officer. By extension the court a quo properly resolved that dispute on appeal. There is no merit in the appeal which ought to fail.”

The above, in short, were the pleadings that were placed before this Court.

FURTHER APPLICATIONS

This matter was initially set down for hearing on 7 March 2024. On that date, Applicant made an application for postponement of the matter. The reason he gave was that he had since filed two applications which had a bearing on the present application. He further averred that it was in the interests of justice that these applications be heard prior to the determination of the main matter. He informed the Court that Case Number LC/H/156/24 contained a Supplementary Affidavit which he wanted to be made part of the proceedings whilst Case Number LC/H/194/24 carried Supplementary Heads of Argument.

In response, Mr. Kondongwe submitted that he did not see the relevance of the two applications as these issues could be covered in heads of argument which was the legally permissible route to address the issues. He asked that the Applicant be made to bear the wasted costs.

In response, Applicant declined to pay the costs in question stating that Respondent was responsible for his unemployment situation for seventeen years.

In an Ex Tempore Judgment delivered on the date in question, this Court made the following remarks:

“The Court will not delve into the question whether the applications made after the present matter was filed have merit or not as this is the work of the court to deal with the matters. What the Court simply points out is that such filing of applications have the effect of having matters which remain clogging the Court’s system. The second issue is that justice is not dispensed with timeously.”

The Court proceeded to postpone this matter sine die to enable the Applicant to pursue his two applications.

CASES LC/H/156/24 AND LC/H/194/24

After all documents had been filed in the above matters, they were both set down for hearing on 15 May 2024. At the conclusion of the hearing, Case Number LC/H/156/24 was struck off the roll due to a defective document filed with the application. The application in LC/H/194/24 was granted and Applicant ordered to file the supplementary heads of argument within ten days of

the date of the order. The record shows that the Supplementary heads of argument were indeed filed on 20 May 2024.

SET DOWN OF LC/H/25/24

The present matter was subsequently set down for 6 June 2024. On that date, Applicant stated that he had filed another application. He submitted that after the one had been struck off the roll on 15 May 2024 he had filed another one which sought to correct the previous one. He therefore was applying for a postponement of the matter pending the finalization of the new application. He further stated that he would want the new application to be finalised before the main matter was dealt with.

Inn response, Mr. Kondongwe stated that the proceedings were becoming a circus as the Court had previously granted Applicant an opportunity to file and deal with his applications. He further submitted that the proposed postponement was unnecessary and the Respondent was being put out of pocket.

In response, Applicant stated that he was not in a position to pay the costs as he was currently on leave.

The Court issued the following Ex Tempore Judgment:

“There has to be finality in litigation. The main matter was filed in January 2024. Two further applications were filed and the Court had to postpone the main matter in order to deal with those matters. One of the applications was granted whilst the other was struck off the roll by reason of it being defective. Applicant has since filed a new application ‘correcting’ the matter that was struck off the roll. What the applicant is doing is trying to push the Court to condone his lack of diligence and tardiness by postponing this matter. This would amount to an abuse of the Court process. The merits of the application have to be heard.”

After the pronouncement of the Court’s position on the application for postponement, Applicant stated that he was not in a position to proceed as he viewed the information vital to his case.

In response, Mr. Kondongwe stated that the behaviour of the Applicant would be tantamount to abandoning the application that was before the Court. He prayed that the matter should be dismissed with costs.

It would appear that the sentiments expressed by this Court in its Ex Tempore Judgment of 15 May 2024 was not heeded at all. The Applicant in seeking a postponement of the main matter stated that he had filed another application in order to ‘correct’ the application that had been struck off the roll. That particular application had been struck off the roll due to the defective documents filed of record. The courts have time and again stated that a litigant who is to blame for his own errors, for his blunders or a litigant who treats his matters with a lackadaisical attitude, negligence or wanton recklessness will not get the court’s aid, sympathy or indulgence. Applicant

is the author of the predicament he finds himself in, the Court having indulged him by postponing the matter and subsequently dealing with the two applications he had filed with the Court.

Were the matter dealt with on the merits, a dismissal would have been appropriate in the circumstances. Taking into account Applicant’s stance of not intending to motivate his application, the proper result should be that the matter should be struck off the roll. However, I am of the view that Respondent would be entitled to costs.

The following order is appropriate;

The application is hereby struck off the roll.

Applicant to meet Respondent’s costs.

Dube, Manikai & Hwacha-      Respondent’s legal practitioners.