Virginia Mudzingwa v Volsec Security Zimbabwe

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/457/13
HARARE, 13 & 27 SEPTEMBER 2013
CASE NO. LC/H/65/13
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IN THE LABOUR COURT 			    JUDGMENT NO. LC/H/457/13

HARARE, 13 & 27 SEPTEMBER 2013			       CASE NO. LC/H/65/13

In the matter between

VIRGINIA MUDZINGWA			         -	Applicant

And

VOLSEC SECURITY ZIMBABWE 			-	Respondent

Before The Honourables:          B.T. Chivizhe: Judge 									       F.C. Maxwell: Judge

For Applicant	-	Mr. T. Katsuro  (Legal Practitioners)

For Respondent	-	Mr N. Munyuru (Trade Unionist)

MAXWELL F.C.:

This is an application for the dismissal of Respondent’s appeal in terms of Rule 19(3)(a) of this honourable Court’s Rules.  The appeal was filed in this honourable Court on the 29th of January 2013.  The response to the appeal was filed on the 28th of March 2013.  In terms of Rule 19  Appellant was supposed to file Heads of Argument within 14 days of receiving the response.  This requirement was not complied with.  Applicant (Respondent in the Appeal) then filed Heads of Argument on the 4th of July 2013.  Appellant only filed Heads of Argument on the 11th of July 2013 almost three months after the required time.  Appellant has not asked for Condonation for the delay in filing heads.  Surprisingly even when it was pointed out to the Appellant’s Counsel, no application for condonation was made.  The Court is extremely displeased with such wanton disregard of its own rules.

The Respondent (Appellant in the appeal) opposed the application.  It was submitted that the present application had been overtaken by events as Respondent had filed Heads of Argument.  It was further submitted that Applicant ought to have made this application before filing Heads of Argument.  There is no legal basis for the arguments proffered on behalf of the Respondent.  Rule 19(3)(a) allows the party who is not in default to apply to the Court at any time for the dismissal of matter.  Moreover the fact that documents have been filed does not automatically make them part of the Court record especially where specific and unambiguous time frames are stipulated in the rules.

Where time periods are provided for in a statute or legislation, it is intended to ensure the expeditious resolution of matters and therefore the principal litigant must prosecute its case with due expedition.

It is my view that in cases where the non defaulting party has raised the issue that the defaulting party is not in compliance with the rules, the defaulting party should simply seek to be condoned by making an application in the light of Rule 26 and not seek to argue that the matter should not be decided on technicalities.  A defaulting party is barred by virtue of Section 19 (3)(b) and unless it is condoned, it has no right of audience except only in relation to an application for condonation.  In the present case there is no such application and Respondent is automatically barred.

The question that remains is the fate of the application for dismissal of the appeal.  It is trite law that labour matters should not be decided on technical grounds.  To dismiss the appeal because of the failure by Respondent to comply with Rule 19 (1) will be to violate this principle.

Accordingly the application is dismissed.

I agree …………………………………….

B.T. Chivizhe

JUDGE