Capital Banking Corporation Ltd v Shephard Shara

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/478/14
HELD AT HARARE 27TH JUNE 2014
CASE NO
JUDGMENT NO LC/H/478/14
---------




IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/478/14

HELD AT HARARE 27TH JUNE 2014			CASE NO LC/H/365/12

& 1ST AUGUST 2014

In the matter between:-

CAPITAL BANKING CORPORATION LTD			Applicant

And

SHEPHARD SHARA							Respondent

Before The Honourable P Muzofa, Judge

For Applicant		G Madzoka (Legal Practitioner)

For Respondent		B Magogo (Legal Practitioner)

MUZOFA, J:

The applicant filed an application for leave to appeal to the Supreme Court on 27 September 2013.  The application was opposed and a notice of response was served on respondent on 10 October 2013.  On 1 February 2014 the Honourable CJ CHIDYAUSIKU issued Practice Direction 1 of 2014 in terms of which it was incumbent on the applicant to deposit with the Sheriff of Zimbabwe security for service of Notices of set down.  The Registrar of this Court thereafter wrote a letter to the applicant advising that the matter was ready for set down subject to the payment of the sheriff’s fees for service on or before 4 March 2014.  The applicant was required to file proof of such payment with the Registrar.   The applicant did not comply with the said requirements the applicant was advised by letter dated 2 April 2014 that the application was dismissed.  Applicant was then jolted into action and filed the present application for reinstatement of the application for leave to appeal to the Supreme Court. The application was vigorously opposed.

The application for reinstatement is similar to an application for condonation.  The court was referred to a plethora of cases by both counsel that set out the requirements to be satisfied in an application such as the one before this court.  These are basically:

the extent of the delay

the reasonableness of the explanation for the delay

the prospects of success on appeal see generally

Champion Constructors v Modrack Mkandla & Another SC 18/07

The extent of the delay

Counsel for the applicant was of the view that the extent of delay was eight days.  On the other hand it was submitted for the respondent there was a delay of thirty five days.  It is not in dispute that the applicant was advised to comply with practice directive 1 of 2014 by 4 March 2014.  This is the date upon which it was expected that the applicant if still interested in the prosecution of the matter must have paid the sheriff’s fees for service.  Applicant did not pay.  I agree with the respondent the dies inducie must be counted from the date of the letter 4 March.  I do not agree that it should be calculated from 2 April 2014 the date applicant was advised the application was dismissed.  The letter of 2 April 2014 did not require the applicant to do anything.  It was the letter advising applicant to pay the sheriff’s fees for service that required action on the part of the applicant within a certain period of time.

The applicant’s delay was thirty five days.  The said fees were supposed to be deposited within 5 days of receiving the letter.  In my view in the circumstances a delay of thirty five days is considerably inordinate.

The explanation

According to the applicant’s counsel an instruction was given to its accounts department to make the said payment.  It was not done. The negligence was occasioned by the accounts department that failed to comply with the instruction.  A requisition was filed by the applicant showing that a request was made on 27 February 2014 for $50.00 to be paid in favour of the Labour Court.  This was approximately two days after the applicant received notification from the Registrar of the Labour Court.  However what is not clear is why the payment was to be in favour of the Labour Court.  The Registrar’s letter was clear that the Sheriff’s fees were to be paid.  Applicant’s legal representative ought to have been aware where this money was to be directed.  According to counsel for the respondent the applicant’s representative was duty bound to follow up on the payments considering that dies inducie was just 5 days.  It was not disputed that applicant’s legal representatives did not follow up on this issue neither was it disputed that the applicant did not follow up on the issue.  Precedent has shown that the client should not sit back and relax assuming the legal representatives are working on his case.  The client has a duty to follow up.  Applicant in this case should have been more vigilant See Metro International (Pvt) Ltd v Old Mutual Investment Corporation (Pvt) Ltd SC 31/08.

It is my considered view that the applicant’s legal practitioners being under a duty, having taken instructions to represent applicant to make sure payment was made within the stipulated 5 days and proof thereof filed with the Registrar.  The requirement for the payment and filing the proof of payment in my view indicates the applicant’s serious desire to prosecute the matter.  Failure to pay can also imply lack of interest in the finalization of the case.  In casu applicant was advised that the matter was ready for set down.  The non payment and later the present application contributed to the delay in the set down of a case that was otherwise ready.  Applicant’s legal practitioner’s conduct amounted to inexcusable negligence.  An inference can easily be drawn that the applicant’s desire to prosecute the matter was coupled with some level of laxity amounting to a disinterest in the finalisation of the case.  I say this because even after receiving the notice of set down on 10 October 2013 no heads of argument were filed within the stipulated 14 days.  If applicant was intent on prosecuting the matter it should have complied with the rules well before the practice direction was issued.  This was negligence on the part of the legal practitioners.  The failure to comply with the letter from the Registrar of 27 February 2014 was negligence on the part of the lawyers.  It took another eight days to file the present application.

The question is whether the legal practitioner’s negligence is reasonable and therefore should be excused.  I must point out that the legal practitioners did not place the blame upon themselves but the blame was apportioned to the accounts department.  I do not accept that view, the legal practitioner was the one ceased with the matter and all actions or inactions in respect of the case are squarely on the shoulders of the respective legal practitioner.  The conduct was sheer negligent.  Had the Registrar not written the letter advising of the dismissal it remains to conjecture when a follow up was going to be made on the case.  The practice direction was meant to decongest the system of matters where parties may not be too interested to pursue.

It was argued that the sins of the legal practitioners should not be visited on the applicant in this case because the applicant had no control of the internal processes within its legal practitioners offices.  There is plenty of authority that the applicant can be penalised for its legal practitioners tardiness.  In casu the applicant too did not diligently pursue its case.  In any event the mere fact that the delay was caused by the legal practitioners’ over sight is not a reasonable explanation in such an application see Selk Enterprises (Pvt) Ltd v Oliver Hurungwe Chimenya & Others SC 10/03.  The explanation for the delay is unreasonable.

The prospects of success

The respondent was relieved of his duties by a curator of the applicant on the basis that there was a supervening impossibility.  The background to this case is that the Reserve Bank of Zimbabwe issued a corrective order following its investigations on the business of the applicant on2 June 2011.  At the relevant time the applicant operated under the name Renaissance Merchant Bank Limited.  The relevant part of the corrective order read as follows:

“27 With immediate effect RMB (applicant) and RFHL boards are hereby directed to remove the following persons from office and make suitable alternative arrangement:

…

e)	Executive Director, Treasury & Structured Finance, Mr Shepherd Shara (respondent)

Thereupon the curator summarily terminated the respondent’s contract on the basis that the contract between the parties was rendered incapable of execution.  The issue before the Labour Court on appeal was whether the curator’s termination of the contract was lawful.  The court made a finding that despite the directive from the Reserve Bank of Zimbabwe the curator was supposed to terminate the contract in terms of the proper procedures.  It was undisputed that the Reserve Bank of Zimbabwe as the supervisor of all financial and banking institutions had authority to issue a corrective order such as the one in question.  However it would result in an absurdity that where a corrective order is made the employer is allowed to summarily dismiss an employee.  I believe the legislature in allowing for codes of conduct and the labour laws wanted to ensure that every employee is dismissed after being properly charged and found liable.  This is consistent with section 12 B of the Labour Act [Chapter 28:01].  In this case the applicant was given an opportunity by the court to regularise the dismissal, but it seems the applicant still resists to regularise.  The respondent’s submission that I agree with being that the applicant was enjoined to hear the respondent and make a decision on whether the said allegations raised on the corrective order were on a balance of probabilities adequate to terminate the relationship between parties, is in my view correct.

In any event the Banking Act provides in section 55 (2) (j) that the curator can “… subject to any other law,” dismiss any of the employees.  Clearly the curator’s conduct in this case was subject to the Labour Act.  In my view this ground of appeal has no prospect of success on appeal.

The other ground of appeal raised by applicant was that the court erred in making a finding that there was no mutual termination of the contract.  This ground of appeal is meritless.  The documents filed of record clearly show that the efforts to conclude a mutual termination were tussled and never finalised.  If for a moment  it is assumed that there was mutual termination before the curator assumed office why would the curator terminate the respondent’s contract raising the issue of supervising impossibility.  Clearly the records within applicants showed that respondent was still an employee.  Nothing can be further than the truth than this.  There was no way the curator would have dismissed a person who was no longer an employee.  A contract of employment is terminated once.

The other ground of appeal challenges the court’s findings on whether the respondent was supposed to seek leave of the High Court before suing the applicant.  This ground is meritless.  The respondent’s cause of action rose directly from the curator’s conduct.  This was  alabour issue.  The respondent was entitled to protect his rights without seeking leave of the High Court.  I agree with the reasoning of the respondent.  The labour court has exclusive jurisdiction over all labour matters and this is such a one.  The respondent should not be made to incur an additional cost to apply for leave to sue the applicant arising from applicant’s own conduct.

From the foregoing the inescapable result is that the application should be dismissed.  Accordingly the following order is made.

The application for reinstatement for leave to appeal to the Supreme Court be and is hereby dismissed with costs.

Wintertons, appellant’s legal practitioners

Makuvaza & Associates, respondent’s legal practitioners