TEL ONE (Pvt) LTD V Christopher Nyamukapa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/715/14
HELD IN HARARE, 17th SEPTEMBER, 2014
CASE NO. LC/REV/H/09/14
AND 24th OCTOBER, 2014
JUDGEMENT NO. LC/H/715/14
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IN THE LABOUR COURT OF ZIMBABWE 	         JUDGEMENT NO. LC/H/715/14

HELD IN HARARE, 17th SEPTEMBER, 2014                    CASE NO. LC/REV/H/09/14 AND 24th OCTOBER,  2014

In the matter between

TEL ONE (PVT) LTD.				Applicant

And

CHRISTOPHER NYAMUKAPA			  Respondent

Before The Honourable E. Muchawa, Judge

For Applicant    :	Mr S. Hwacha (Legal Practitioner)

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

MUCHAWA J,

The matters before me are an application for Review and an Appeal. At the hearing, Applicant proceeded to raise the point in limine that Respondent filed its Notice of Response out of time. As there was no application for condonation before me, I was urged to proceed to deal with the matter as unopposed and enter default judgment in favour of Applicant/Appellant.

On the other hand, Respondent raised two points in limine. The first point was that Applicant is barred for failure to timeously file Heads of Argument. As there was no application for condonation in respect of such failure, I was urged to refuse Applicant audience.

The second points in limine raised, is that Applicant has dirty hands as it has not complied with the arbitral award of 19 December 2013 which ordered the payment of $112 658. Respondent urged me to refuse to hear Applicant until it purges its contempt.

Applicant is Respondent’s former employer. The two matters centre around an arbitral award of Arbitrator Chikwava which found that Respondent’s employment had been unlawfully terminated  and ordered payment of damages in lieu of reinstatement.

Below I proceed to deal with each of the points in limine as I reserved my ruling. This is it.

Non-timeous filing of Notice of Response

It is common cause that both the application for Review and Appeal were issued out on the 31st January 2014. Notices of Response in both cases were filed on the 3rd of June 2014, some four months later.

Respondent explains that the failure to file the Notices in terms of Rules 15(2)(b) and 16(2)(b) was occasioned by the failure of the Registrar to act in terms of Rules 15(2)(a) and 16(2)(a) or 14(2). These Rules place an obligation on the Registrar to trigger the filing of a response. They read similarly as follows,

“The registrar shall, within thirty days of receiving a notice of application/appeal in terms of sub rule 1(d) give notice in Part 1 of Form LC 2 to the respondent.”

Following such giving of notice to respond, a Respondent shall file the Notice of Response with fourteen days of the date the Registrar gives notice to the Respondent.

It is clear from the record that the Registrar did send two notices to respond. One is dated 31 January 2014 and was received on 4th February 2014 whilst another is dated 22 May 2014 and is stamped received. Both were sent to the National Employment Council for the Communications and Allied Services at Number 5 Chiremba Road. Respondent explained that such notices to respond and the application for review and appeal were sent to the wrong address and he never received them. It was explained that he was represented by the Communications and Allied Services Union whose address is 104 Central Avenue. It was further explained that Respondent only learnt of the appeal and application for review from Applicant who referred him to their lawyers where he got copies of such documents.

I find therefore that the Respondent was never in receipt of notices to respond as envisaged by the Rules. The explanation tendered suffices as good cause for the failure to file a response timeously in the circumstances.

In any event, Notices of Response had already been filed by the date of hearing. It seems to me this is a good case in which to proceed to determine the matter. There is therefore no merit in this point in limine which I dismiss.

Non-timeous filing of Heads of Argument

It is common cause that though Respondent filed its response on 3 June 2014, Applicant/Appellant only filed its Heads of Argument on the 17th September 2014 which was the date of set down without any preceding application for condonation.

Respondent argues that in this, Applicant is in violation of Rule 19(1) which places a peremptory obligation on the Applicant to file Heads of Argument within fourteen days of receiving a Notice of Response to the application, appeal or review. It further argued that as Applicant did not file its Heads of Argument within the stipulated time then it is barred in terms of Rule 19(3)(b). Such Heads of Argument had to be filed on or about the 23rd June 2014 and are around three months late.

It is further argued that without an application for condonation, Applicant should not be heard. I was referred to a letter addressed to Applicant’s lawyers dated 2nd July 2014, by Respondent’s lawyers, which alerted Applicant to the delay in filing of Heads of Argument as well as the Registrar’s failure to send a Notice of Response. The failure to apply for condonation, in the circumstances is said to be inexcusable.

Applicant argues that the trigger of filing of Heads of Argument is the filing of  a timous and valid Notice of Response. It is argued that as Respondent was still to show good cause, at the hearing, for non-timeous filing of a Notice of Response, the transference of the obligation to file Heads of Argument had not yet happened.

I have already found that Respondent’s response was not out of time, but was filed without an invitation from the Registrar. My reading and interpretation of Rule 19 is in line with that in National Airways Workers Union and Air Transport Union v Air Zimbabwe (Pvt) Ltd LC/H/253/2009. By neglecting to apply for condonation in the current circumstances, Applicant has failed to exercise due diligence and the explanation tendered is not reasonable. It would be absurd for this Court to place an obligation on an Applicant to check into whether a Notice of Response was trigger by a notice from the Registrar and then distinguish cases and say the fourteen days’ time frame would only run where the Registrar has acted in terms of the Rules. That would create an unnecessary hurdle which would not assist the smooth administration of justice. It is more desirable, in my opinion to simply say that the fourteen days begin to run once a Notice of Response is received.

Applicant is consequently barred.

Dirty Hands

It is Respondent’s case that Applicant, who is yet to honour the arbitral award by paying the $112 658, awarded to Respondent, has dirty hands and should not be heard by the Court until it purges its contempt.

I was referred to several case authorities for this proposition. These include the Supreme Court case of Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State Information and Another SC 20/03. In that case it was held that;

“This Court is a Court of law and, as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the law and argue afterwards”

Applicant submits that the “dirty hands” argument is an afterthought. It was argued further, that it is not the business of this Court to enforce and execute the contested orders of its subordinates I was urged not to be blind to the circumstances of this case and proceed to refuse to hear the parties.

Section 92E(2) of the Labour Act [Cap 28:01] provides that an appeal to the Labour Court shall not have the effect of suspending the determination or decision appealed against. The Labour Court may make such interim determination in a matter as the justice of the case requires, pending a determination of an appeal in terms of Section 92E(3).

It is common cause that Applicant has made such an application which was filed on the 27th June 2014. Such an application has not been determined yet as the Registrar has not placed the application before a Judge.

I find therefore that this is a case where Applicant has made an attempt to purge its contempt but the Court has not handled the different processes expeditiously and in the fitting order. It would not meet the justices of this case to decline Applicant an opportunity to be heard in the circumstances. I believe there is no need to get into the details of the other arguments raised above. This Court should simply give Applicant an opportunity to purge its contempt by determining the application for Stay of Execution.

Consequently I order as follows;

The Registrar be and is hereby directed to first refer the application for Interim Determination filed on 27th June 2014, to a Judge for determination.

The Applicant be and is hereby barred for failure to file Heads of Argument timeously, in the application for Review and the appeal in terms of Rule 19(3)(b).

The Registrar be and is hereby directed to thereafter set down the application for Review and Appeal in terms of Rule 19(3)(a).

Dube, Manikai & Hwacha, Applicant’s legal practitioners

Makuwaza and Associates – Respondent’s legal practitioners