Zimbabwe Broadcasting Corporation v Mathias Mudzimiri

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/345/14
HELD AT HARARE 6TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/345/14

HELD AT HARARE 6TH MAY 2014			CASE NO LC/H/83/14

& 20TH JUNE 2014

In the matter between:-

ZIMBABWE BROADCASTING CORPERATION			Applicant

And

MATHIAS MUDZIMIRI						Respondent

Before The Honourable P Muzofa, Judge

For Applicant		A Muchandiona (Legal Practitioner)

For Respondent		T Mafongoya (Legal Practitioner)

MUZOFA, J:

This is an application for stay of execution of an arbitral award issued on 20 January 2014.

The application was initially filed with the Registrar as an urgent chamber application on 11 February 2014.  On 13 February 2014 the respondent filed with the Registrar a notice of opposition together with respondent’s opposing affidavit.  On 17 February 2014 the applicant filed an answering affidavit.  On 3 March 2014 this court issued an order dismissing the urgency part of the application and directed that the matter be placed before  the court as an ordinary application.

Before the application for stay of execution could be heard on the merits  Counsel for the respondent raised a preliminary point that the applicant cannot be heard as it was barred.  For the respondent it was submitted that in terms of Rule 19 of the Labour Court Rules the applicant was obliged to file heads of argument within fourteen days of having received respondent’s notice of response by 13 February 2014.  The heads of argument were to be filed by 5 March 2014.  The respondent filed  heads of argument on  10 March 2014.  The applicant has not sought condonotion for late filing of the heads of argument.  Applicant denied that it was barred.  It was submitted for the applicant that since the application was initially filed as an urgent chamber application the Labour Court Rules do not provide for filing of heads of argument.

Rule 19 of the Labour Court Rules deals with the filing of heads of argument where a party is represented by a legal practitioner.  Rule 19 (1) (a) of this Court’s rules require that heads of argument be filed by the applicant’s legal representative within fourteen days of receiving a notice of response.  Rule 19 (3) (b) thereof provides

“the defaulting party shall (if no application under paragraph (a) is made or granted be barred and the court may deal with the matter on the merits.”

The position of the rules is very clear.  In casu it was not disputed that the applicant received the notice of response on 13 February 2014.  In terms of the Rules applicant was enjoined to file heads of argument within fourteen days from 13 February 2014 which was 5 March 2014, this was not done.  The applicant sought to rely on the fact that the application being an urgent chamber application at inception there was no requirement for the filing of heads of argument.  I do not believe the interpretation given  by the applicant, it not being supported by any authority is correct.  Rule 19 (1) (a) applies to any application filed with this court where the applicant filed where the applicant has received a notice of Response.   In my view the determinant factor is the notice of response.  It is not therefore for any litigant to decide whether or not to file heads of argument after receiving the Notice of Response.  The rules require that the heads of argument be filed.  In this case it was not for the applicant to decide not to file heads of argument simply because this was an urgent chamber application.  The time frame within which to file the heads of argument commenced running from the date applicant received the respondent’s notice of response.  From the wording of Rule 19 (3) (b) the bar is automatic.  The applicant was barred as from 5 March 2014.  Applicant filed heads of argument on 10 March 2014 some five days after.  No application for the upliftment of bar was made.  Condonation cannot be extended to a party that has not sought the court’s indulgence on this aspect, ZFC v Geza 1998 (1) ZLR (S) 137.  The Rules of the court were put in place to enable the proper administration of court process in the fulfilment of the Labour Act.  As such rules should be complied with especially where parties are represented by legal practitioners.

Respondent also relied on the fact that the court considered the urgent chamber application in the absence of the heads of argument.  Indeed the court order of 3 March 2014 did not have the heads of argument.  However the court addressed the urgency of the matter only.  This did not in any way preclude the applicant from filing heads of argument that were due on 5 March 2014.  Applicant is barred until it purges its contempt.

Accordingly the following order is made

The applicant be and is hereby barred.

The Registrar is ordered to set down the matter to be considered on the merits.

No order as to costs.

Danziger & Partners, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners