Bhekiwe Mhlanga v Zimpost (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/08/2016
MASVINGO, 24 MARCH 2016 &
CASE NO LC/MS/REV/13/2015
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/MS/08/2016

MASVINGO, 24 MARCH 2016 &			     CASE NO LC/MS/REV/13/2015

13 MAY 2016

In the matter between

BHEKIWE MHLANGA							APPLICANT

Versus

ZIMPOST (PVT) LTD & ANOR						RESPONDENTS

Before the Honourable D L Hove J

For the Applicant       S Hamadziripi  (Trade Unionist)

For the Respondent   O Shava (Legal Practitioner)

HOVE J:

At the hearing of this matter, the applicant applied for a postponement.

The reasons for applying for postponement is that they want time to file their heads of arguments which they failed to file in terms of the rules.

The provisions of law are very clear. The respondent ought to have filed their heads in terms of Rule 15.

They realized that a copy of their heads was not on file but neglected to do anything about it until the date of the hearing. They were advised by the registrar to copy the record before the court hearing date, they would have at that stage realized that there were no heads of arguments filed and made an application for the upliftment of the bar. They did nothing.

It is only on the hearing date that they sought to have the matter postponed and allow them to attend to the filing of their heads.

The explanation that they sent their client’s heads of arguments to the client and assumed that the heads had been filed shows a serious lack of seriousness and diligence on the part of both the client and its legal representative. Both of them were negligent. The client and the legal practitioner exhibited an entire failure to consider the consequences of their actions or omissions. There was in my opinion a total disregard of the legal practitioner’s duty to conduct the legal proceedings in terms of the prescribed rules of court and this constitutes negligence.

See Circle Tracking v Mika Mahachi SC 4-07.

I refused to grant the application for a postponement for the law will only help the diligent and not the sluggard. State v Ncube 1990 (2) ZLR 303.

The respondent then made an application for the upliftment of the bar that was operating against him. He submitted the same reasons for the default that they had assumed that their client had filed the heads of arguments which they had prepared. I have already stated that I find that explanation to be revealing the negligence of both the legal practitioner and the client. When one is prosecuting their defence or actions on behalf of the client in a court, they ought to know that the proceedings are conducted in terms of the governing rules of court and diligently ensure compliance with the rules. There is no room for assumptions especially on the part of the legal practitioner.

The legal practitioner realized that they were barred and he did nothing but wait for the date of hearing to apply for a postponement so that he could do that which he ought to have ensured is done in the first place. He ought to have urgently taken steps to address the anomaly by filing an affidavit explaining the default and alerting the court or the Registrar so that the court itself would not be inconvenienced by setting the matter down for hearing on circuit only for him to apply that he be condoned or alternatively the bar be uplifted on the basis of submissions he is making from the bar.

It is trite that where legal practitioners wish to place facts before the court, even facts that they believe are notorious, they must do so by way of affidavit as an affidavit is sworn testimony. See Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa SC 9-10.

It is important to know that the Labour Court conducts its proceedings in terms of its rules and legal practitioners ought to comply with these rules. There appears to be a disdain of this court’s rules and it appears fashionable that one can disregard the rules and walk in on the day of the hearing with the lame excuse that reveals mainly that the legal practitioner was negligent and expect the court to condone none-compliance. Flagrant or negligent disregard of the rules will not be tolerated if this court is to achieve its mandate, to disperse expeditious justice between the parties. The court will not lightly view failure to comply with the rules especially by legal practitioners who have a duty to assist the court and to be diligent in the performance of their duties.

I do not believe that the court should be moved to extend any indulgence to a defaulting party who displayed lack of diligence and acted negligently.

It is for the above reason that the application for the upliftment of the bar is denied. The following order is made:

The application for the upliftment of the bar is dismissed.

The Registrar will set the matter down to be heard in terms of Rule 19 (3) and (4)	.

Mbidzi, Muchadehama & Makoni, respondent’s legal practitioner