Zimbabwe Phosphates Industries Limited v Shepherd Kodha

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/331/24
ZIMBABWE HELD AT HARARE 18
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IN THE LABOUR COIRT OF ZIMBABWE HELD AT HARARE 18 JULY 2024

AND 7 AUGUST 2024

IN THE MATTER BETWEEN:-

JUDGMENT NO. LC/H /331/24 CASE NO. LC/H/563/24

ZIMBABWE PHOSPPHATES

INDUSTRIES LIMITED	APPLICANT AND

SHEPHERD KODHA	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Mr. I. Nderere

For Respondent	Ms. H. Madzongwe

MURASI J.,

This is an application for reinstatement of a matter. This is a result of the matter having deemed abandoned by the Registrar because of Applicant’s non-compliance of the Labour Court Rules, 2017.

PRECIS

The Judicial Service Commission introduced the Integrated Electronic Case Management System (hereinafter IECMS) in all superior courts. The system does away with the physical filing of documents. With the introduction of the system, documents are filed electronically. Prior to the launch of the IECMS platform, The Judicial Service Commission embarked on training workshops for legal practitioners, labour officers, designated agents, arbitrators and trade unions. This was to acclimatize these important players in the legal field with the operation of the system.

The system operates in the following simplified manner. The Applicant/Appellant files documents electronically with the Registrar. Once this has been ‘issued’ by the Registrar, the Appellant/Applicant serves this document physically on the Respondent. The Respondent is enjoined to supply details to the Registrar, that is, the legal practitioner or person dealing with the matter, his/her email address AND an alternative email address. Upon filing the response, this is

reflected in the system where the system shows that a response has been filed and status ‘changes’ to show that the next stage is that of the Applicant/Appellant being required to file heads of argument. In this respect both parties sent emails showing this status.

The launch of the IECMS at the Labour Court on 1st February 2023 was preceded by the amendment of the Court Rules as shown in Statutory Instrument 3 of 2023 on 6th January 2023. In section 2 thereof, ‘deliver or served is defined. Rule 7 if also amended in the amending rules. There was an introduction of Rule 11A which is a critical provision of the functioning of the IECMS platform. This Rule is also completed by the introduction of Rule 11B which explains what electronic service is supposed to entail.

THE PRESENT APPLICATION POINT IN LIMINE

At the commencement of the proceedings, Ms. Madzongwe raised a preliminary issue on the propriety of Applicant’s legal practitioner deposing to an affidavit without showing that this was authorized by the Applicant because there was no Board Resolution to this effect. In that vein, she argued that there was no proper application before the Court.

In response, Mr. Nderere submitted that there was nothing amiss in the legal practitioner deposing to the affidavit as he was conversant with the facts of the matter. He added that in this respect there was no need for the legal practitioner to be clothed with further authority in the circumstances.

The issue of legal practitioners deposing to affidavits on behalf of litigants has been with the superior courts for some time indeed. There is no consensus as to what principle should be followed. In my view, where a legal practitioner deposes to an affidavit on behalf of a litigant, at least the litigant should be able to state what his/her/its position on the matter is. However, a court cannot go behind the instructions issued to a legal practitioner in every circumstance. I would therefore adapt the attitude espoused by BHUNU JA in Edmore Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited SC 81/22 where he had this say:

“It is therefore clear from the authorities that the primary function of the court a quo is to do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law are beginning to mellow and drift towards the idea of correction of simple procedural errors in order to do real and substantial justice.”

I am therefore prepared to ‘look the other way’ and condone the filing of the affidavit by the Applicant’s legal practitioner.

THE MERITS

On the merits, Mr. Nderere submitted that in such applications the applicant must demonstrate that they have a bona fide explanation, and the matter carries prospects of success. He also stated he abided by the heads of argument filed of record. He added that the Applicant was not duly served with the Notice of Response and as a result Applicant was unable to file the heads of argument. When pointed to the provisions of Rule 11 B (3), Mr. Nderere was unable to give a meaningful response. Mr. Nderere seemed to insist that the practice in the courts was that proper service must

be done is such a way that the other party is properly informed of the status of the matter before the Court. He made a subtle concession that he could not give a meaningful reference to the Rule referred to by the Court.

In response, Ms. Madzongwe stated that she was going to abide by the documents filed of record. She added that proper service had been effected in terms Rule 11 B (1) electronically as there was no need to effect service physically. She submitted that Respondent’s Notice of Response triggered emails to Applicant’s legal practitioners. She argued that the requirement of physical service of documents was only required in the initial service. Ms. Madzongwe also submitted tat the case sought to be relied on by the Applicant was distinguishable from the present matter as that case involved the lack of diligence on the part of a Registrar. She further submitted that in the present matter, the legal practitioner had been notified through the email and that the failure to act was due to lack of diligence and tardiness by the legal practitioner.

ANALYSIS

At the beginning of this judgment, I referred to the genesis of the IECMS platform and the amendments made to the Labour Court Rules to accommodate its operations. Clearly, most legal practitioners have not taken the time to familiarize themselves with these provisions. Rule 11A provides:

“1. Litigants shall create an IECMS account before filing an application, appeal or any other civil process.

Litigants shall provide the mandatory information required by the electronic filing system.

If a litigant changes his of her contact details, he or she shall inform the Registrar of the new contact details within 48 hours.

Every notice of appeal or application shall provide an alternative email address for the purposes of service or delivery of pleadings.”

Rule 11 B provides as follows:

“1. In addition to the methods of service provided for in these rules, service may be effected electronically by way of email, web portal or other electronic means designated by the Chief Justice in a Practice Direction.

2. Proof of such electronic service shall be simultaneously copied to the Registrar.

3. For the avoidance of doubt, a sent status report shall be deemed to be prima facie proof of service.”

Applicant’s Founding Affidavit contains the following averments:

“9. Subsequently, on the 24th of April 2024, the Respondent filed a notice of response to the aforementioned chamber application. I wish to record that the said notice of response was not physically served on the Applicant’s legal practitioners. As a result, the Applicant

was never made aware that the Respondent had filed this response, and the Applicant’s  legal practitioner missed the notification on the IECMS platform indicating that the Respondent had filed a response to the chamber application for leave to appeal.

12. I humbly submit that this lack of proper service of the Respondent’s notice of response effectively deprived the Applicant of the knowledge that a response had been filed, and subsequently, the Applicant was unable to submit its heads of argument within the prescribed timeframe.”

The Court notes that Applicant submits that the legal practitioner “missed the notification” on the IECMS platform. There is a realization therefore that Applicant was supposed tom check on notifications on the IECMS platform. If taken to its logical conclusion, Applicant’s explanation leaves a lot of gaps. If Applicant filed its application on 11 April 2024, this means that Respondent was supposed to have filed a response thereto within ten days as provided in Rule 26 (1). Applicant avers that the Notice of abandonment was issued on 14 May 2024. This is well in excess of the ten days provided in the Rules. This means that Applicant was not checking on the matter with the system or the Registrar. The blame cannot, therefore, be with the Respondent. In any event, the Respondent was obliged to file the Notice of Response electronically.

A reading of Applicant’s Founding Affidavit shows that it seeks to lay the blame on the Respondent’s mode of service of the Notice of Response. As pointed out elsewhere in this judgment, this mode of provided in the Rules. Mr. Nderere was equally unaware of the provisions in the amended Rules. I should hasten to add that the Registrar is able to pick the stage at which each case is at as the IECMS platform shows the progress at each stage. The applicant took a lackadaisical attitude after filing the application.

I also note that Applicant has not been candid in the explanation tendered to the Court. There has been no reference to any particular Rule which it relied on in ‘believing’ that the Respondent was supposed to served it physically when it had filed the application on the IECMS platform. This is after the extensive educational programme undertaken the Judicial Service Commission. Generally, courts discourage non-disclosure, mala fides or dishonesty. In this case, there appeared that there was no appetite on the part of the Applicant to ‘own up’ and tell the truth. In Nehanda Housing Coop Society and Others v Moyo and Others HH 987/15, MAFUSIRE J had this to say:

“In my view, a party that conceals material information must be unworthy of the protection or assistance of the court. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter, even those that you may perceive to be adverse to the relief that you seek.

Failure to disclose material facts disentitles the applicant to the relief which he seeks or disentitles him to keep the one he had already obtained.”

What the Applicant has attempted to do is shield itself from blame and stated that it was the Respondent who was responsible for its non-compliance with the Rules. Applicant seeks to bring its tardiness and lack of diligence by its legal practitioners to the doorsteps of the courtroom. This

cannot be allowed. This Court declines to be part of such tardiness. The legal practitioner has not ‘owned up’ to the lack of diligence on his part. If the legal practitioner was diligent at all, the bells should have started to ‘ring’ at the end of ten days after serving the Respondent with the application. In Machaya v Muyambi S 4/05 it was held as follows:

“How many times has this please been heard in the many applications before this Court whether for condonation and extension of time within which to appeal, or for reinstatement of appeals! Times innumerable. Yet the flood of applications continue unabated and the same excuses are tendered over and over.

The time has come for sterner measures to be taken of applications of this nature where negligence, tardiness and disdain of the rules of court is exhibited by legal practitioners.”

Further, in Zimbabwe Platinum Mines (Pvt) Ltd v Marko Phuti SC 21/16, it was held that the Labour Court cannot dispense equity in its duty to do substantial justice between the parties outside the confines of the law. The Labour Court is required to act subject to such procedures as are prescribed, that is, in accordance with the Labour Act and the Labour Court Rules. It was cautioned that where there has not been compliance, the Court cannot be seen to perpetuate a disregard of its rules. The explanation tendered by the Applicant in cause is unacceptable as there was a flagrant disregard of the court’s rules.

A reading of the Founding Affidavit shows that Applicant has made cosmetic reference to the prospects of success. The applicant states that the ‘mischaracterization of the charge is a concerning oversight by the court’. Further it is averred that the Court erroneously relied on the initial ‘Notice of Allegation’ rather than the charge sheet in making its determination. It is said this issue will convince the Supreme Court to overturn the Court’s decision. Clearly there is a dearth of information as to what points of law the Applicant will take before the Supreme Court. There is no demonstration as how it is averred the court misdirected itself in the determination. As stated in Stevenson v Minister of Local Government and Others 2002 (1) ZLR 498 (S), an applicant must stand or fall by his founding affidavit and facts alleged in it. Applicant has not addressed the prospects of success in any meaningful way.

It is therefore my firm view that there is no merit in the application for reinstatement and it ought to be dismissed in its entirety.

In the result the application for reinstatement of the matter is hereby dismissed with costs.

Scanlen & Holderness-	Applicant’s legal practitioners Mufaru & Paradzayi Legal Practitioners-	Respondent’s legal practitioners.