Shomet Construction (Pvt) Ltd v Claudius Chivaviro

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/486/13
HELD AT HARARE 24TH SEPTEMBER 2013
CASE NO LC/H/415/13
JUDGEMENT NO LC/H/486/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGEMENT NO LC/H/486/13

HELD AT HARARE 24TH SEPTEMBER 2013	    CASE NO LC/H/415/13

AND 11 OCTOBER 2013

In the matter between:-

SHOMET CONSTRUCTION (PVT) LTD			-	Appellant

And

CLAUDIUS CHIVAVIRO						-	Respondent

Before The Honourable L. Hove, Judge

The Honourable L.M. Murasi, Judge

For Appellant	:	Mr. T. Hussein (Legal Practitioner)

For Respondent 	:	Mr. B. Makururu (Legal Practitioner)

MURASI, J.

This is an appeal against an arbitral award in favour of Respondent.  Appellant filed Heads of Argument out of time and Respondent made submissions on this point.  Respondent further stated that Appellant was barred in terms of the Rules unless an application for upliftment of the bar was made and granted by the Court. Appellant applied for the upliftment of the bar which was not opposed by Respondent.  The Court granted the application for upliftment of the bar.

Respondent raised a point in limine  in that Appellant had approached the Court with “dirty hands” in that no application has been made to the Court in terms of section 92E of the Labour Act.  Respondent further submitted that the court should not come to the assistance of a litigant who is in open defiance of the law.

Appellant, in response, alleged that what was before the Court was an arbitral award and not a court order.  Appellant further reasoned that there cannot be contempt for an award but of a court order.  It was further submitted that the “dirty hands” principle could not and did not apply to awards.  It was further stated by Appellant that the “dirty hands” principle had been outlawed by the Constitution.  Appellant filed Supplementary Heads of Argument to buttress this point.  Respondent however, did not file responses by 25th September as promised.  The Court will, thus consider the point raised in limine  on the submissions made.

This Court will deal first with the submissions that what lies before the Court is an award and should not be equated to a court order.  The Court finds it extremely difficult to grasp and digest this submission.  It will be remembered that the Labour Act was amended by Act 7 of 2005.  The then section 97 was broadly amended.  Section 98 now deals with compulsory arbitration and subsection (10) provides:-

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

Note should be made of the fact that the word used is “decision”.  Section 92E(1) is broadly framed to encompass appeals “in terms of this Act”.  Where one refers to the Act, one presumably must be referring to the law, because that is what it is.  The Court is of the view that a decision made in terms of the Act is in terms of the law.  It therefore becomes a lawful order.

The Court turns to the reference made by Appellant to section 85(2) of the Constitution.  This section provides:-

“The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection (1)”

The Court notes from the submissions that Appellant has not made reference to section 85(3)(a) which provides :-

“(3)  The rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1), and those rules must ensure that –

the right to approach the court under subsection (1) is fully facilitated.....”

A reading of the provisions in the Constitution leave one with the inescapable view that where the Court intends to limit or proscribe appearances by certain persons, provision should be made to fully facilitate such appearance.   It is the Court’s view that the law provides for the opportunity by litigants to approach the Court in terms of Section 92E (3) of the Labour Act for interim relief pending the finalisation of the appeal.  There is therefore no conflict between the provisions of the Constitution and the Labour Act on this issue.

The Court is of the view that Appellant wilfully does not intend to comply with the law.  As stated by Hlatshwayo J (as he then was in Zimbabwe Open University Vs Dr. O. Masombwe HH 43/2009 at page 4 of the cyclostyled judgement:-

“As if the non-compliance with the mandatory rules noted above was not bad enough, the Applicant has not bothered to apply for condonation of its failure to comply with the rules inspite of such non-compliance having been drawn to its attention as early as when the notice of opposition was served on it.  In my considered view, where the errant party has not applied for condonation in spite of its awareness of its non-compliance, it suffices, for the objecting party merely to point out the non-compliance for the application to be struck off.  Furthermore, the Applicant’s failure to even recognise the need to apply for condonation shows a cavalier approach to compliance with the rules of court, which must be discouraged by an exemplary order of costs” (Own emphasis).

Appellant is unwilling to comply with statutory provisions and would want this Court to render nugatory those provisions of an Act of Parliament.  A Court cannot authorise an individual to proceed against what Parliament has decreed.

In the result, the point in limine is upheld and the appeal is struck off the role.

........................

L.M. MURASI

JUDGE

........................  I agree

L. HOVE

JUDGE

Hussein Ranchhod and Company – Appellant’s Legal Practitioners

Guni and Guni – Respondent’s Legal Practitioners