Alpha Asset Management v Patricia Makani

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/369/2014
HARARE, 16 MAY 2014
CASE NO LC/H/343//2013
JUDGMENT NO LC/369/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/369/2014

HARARE, 16 MAY 2014 			     CASE NO LC/H/343//2013

& 20TH JUNE 2014

In the matter between:

ALPHA ASSET MANAGEMENT					 APPLICANT

Versus

PATRICIA MAKANI						RESPONDENT

Before The Honourable E Muchawa 	 :	Judge

For the Applicant	     R Matsikidze    (Legal Practitioner)

For the Respondent   A Chagonda    (Legal Practitioner)

MUCHAWA J:

This is an application for upliftment of bar and condonation of late filing of heads of argument.

The applicant filed an appeal with this court on 17 May 2013. On 5 June 2013 the respondent filed its response. In terms of r 19(1)(a) of the Labour Court Rules   S I 59 of 2006, the applicant was supposed to file its heads of argument within fourteen days of receiving the response from the respondent. The failure to comply with r 19(1)(a) has resulted in the applicant being barred in terms of r 19(3)(b).

The applicant submits that there is a reasonable explanation for the delay in filing heads of argument and that such failure is not deliberate and wilful. In essence the applicant explains that there was a mix up between two court processes that is the appeal by the applicant and application for condonation by the respondent which were both before the court. The respondent filed an application for condonation of late filing of a cross appeal which was heard on 20 December 2013. That is the matter that is said to have side tracked the applicant. Further it was stated that this matter had been initially handled by a different lawyer who left the law firm last year.

The delay in filing the heads of argument is seven months. The applicant alleges that this is not inordinate.

The applicant avers that it should weigh in its favour that upon realization of the non-compliance with the rules, this application was expeditiously filed together with the heads of argument showing an interest in finalising the matter.

I was also pointed to the convenience of the court and both parties if the appeal and cross appeal are heard together.

Regarding prospects of success, the applicant submits it has good prospects of success as the arbitrator erred at law on the principle of caveat subscripto and novation of contract.

On the other hand the respondent argues that the applicant has not given a reasonable explanation for the delay and that a seven months delay is inordinate. I was urged to consider the applicant’s conduct as a reckless disregard of the Rules of this court. The lack of a reasonable explanation was said to be fatal. (See Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) at  – H). Further the applicant is said to have committed an unfair labour practice as there was no negotiation between the parties in respect to the new contract.

I commend both parties for referring me to several authorities on the requirements for condonation. I can however do no better than refer to the case of Kodzwa Secretary for Health & Anor supra. It states at 315 B-E:

“The requirements for condonation have been exhaustively discussed in a number of cases in our jurisdiction and are in the main:

The degree of non-compliance and the reasonableness of the applicant’s explanation for the default;

The prospects of success;

The respondent’s interest in the finality of the case; and the convenience of the court and the avoidance of unnecessary delay in the administration of justice.

I find that the applicant has offered a reasonable explanation for the delay and find too that in the circumstances the delay is not inordinate. I however wish to reiterate the need for lawyers to improve in their case management skills especially regarding hand over of files. There seems, from applications that come before me, that there is a skills gap in this area. Clients are unduly prejudiced as a result of this.

In an earlier application for condonation of late filing of appeal by the respondent, this court found that this matter is one that merits proper ventilation before the court. Issues of power dynamics between employers and employees always play out in the contracts signed. The application of the principle of caveat subscripto in such situations is important in labour matters.

I note too that it would be convenient to the court if the appeal and cross appeal are properly heard together.

Further, by filing the heads of argument and prosecuting the other appeal matter, the respondent has demonstrated an interest in the finality of the case and an avoidance of unnecessary delay in the administration of justice.

I therefore order as follows:

The automatic bar operating against the applicant in this matter be and is hereby lifted.

The respondent be and is hereby allowed to file its heads of argument under Case No LC/H/343/13. And if heads of argument are already filed same are deemed to have been filed in terms of the Rules.

Costs shall be in the cause.

Matsikidze & Mucheche, applicant’s legal practitioners

Sawyer & Mkushi, respondent’s legal practitioners