Chipo Gift Maringe v Bible Society of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 25TH, APRIL, 2023 AND 4TH, JULY, 2023
JUDGMENT NO.LC/H/186/23
CASE NO. LC/H/582/22
CHIPO GIFT MARINGE Applicant
And
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 25TH, APRIL,
2023 AND 4TH, JULY, 2023

CHIPO GIFT MARINGE
And
BIBLE SOCIETY OF ZIMBABWE

Before the Honourable Kachambwa, Judge;

For the Applicant: Mr B. Madhau
For the Respondent: Mr B. Dhlakama

KACHAMBWA, J:

The Application

1. This is an application for reinstatement of a case that was deemed to be abandoned for failure to file heads of argument in time. The deeming provision is Rule 46 of the Labour Court Rules S.I.57 of 2017. The application is opposed. The reason for failure to file heads of argument was that the legal practitioner was in South Africa for treatment after an accident.

Grounds for opposition

2. The respondent opposed the application on the grounds that;


2.1. The application was a nullity since the applicant’s legal practitioner had deposed to the founding affidavit instead of the applicant who is the party to the proceedings.

2.2. The legal practitioner is not being candid with the court in regard to the dates of the events.

2.3. Another legal practitioner from the law firm could have attended to the filing of the heads of argument.

2.4. After the experience of previous failures by other legal practitioners the applicant should have been more diligent by following up on the progress of her case.

2.5. The prospects of success are not addressed.

2.6. There is no supporting affidavit from any other legal practitioner or employee from the law firm. One is required.

2.7. There is no merit in the application. The applicant is burdening the court by asking for leniency.

Appellant’s Argument

3. The appellant’s argument was that a legal practitioner was allowed to file an affidavit in his/her client’s behalf if he/she has personal knowledge of the contents thereof as in the present case. The explanation for the delay was credible, true and inevitable. There was not any fault on the applicant and her lawyer as this delay was due to the fact that the legal practitioner was in South Africa for medical reasons. Another legal practitioner could not take the case as evidence already showed incompetence. The prospects of success were addressed in the cross file that was referred to and regarded as incorporated in the present proceedings. The explanation for the delay was accepted by the
 2 respondent. It is a reasonable explanation. It covers the whole period of the delay.

Respondent’s Arguments

4. The respondent insisted on its arguments as in the notice of opposition. It conceded that there are circumstances where a legal practitioner may file the founding affidavit on behalf of the client but even in such cases not as a party to the proceedings. The applicant did not act diligently when applying. Condonation is not for the asking but must be justified.

The applicant was not candid with the court. She did not explain that this was infact an application for reinstatement of an application for condonation. She was hiding her lack diligence. She was not being candid with the court and as such the application must fail.

5. The respondent also argued that prospects of success were not addressed and they are not there. Further, the applicant’s attitude was said to be that condonation is for the asking. Such an attitude is not supported by precedent in this jurisdiction. It is frowned upon. It was further said that the application should be dismissed for lack of merit.

The Law

6. Applications for reinstatement and those for condonation for failure to do in time what has to be done have the same requirements. The parties did not list them. They are a weather beaten road. They are considered cumulatively. These requirements have been listed in many cases such as;


(1) K. M. Auctions (Pvt) Ltd v (1) Adenash Samuel (2) Registrar of Deeds, Harare SC 15/2012;
(2) Leonard Dzvairo v Kango Products SC 25/2017;


(3) Saloojee and Another N.O vs Minister of Community Development 1965 (2) SA 135 A and

(4) Stuttafords Removals (Private) Ltd vs Godfrey Nyamazunzu SC 40/20.

The **K.M. Auctions case** supra gives us the following list at page 3 of the cyclostyled judgment.

"It is trite that in considering an application such as this the court will amongst others consider the following factors;

(i) The decree of non-compliance
(ii) The explanation for it
(iii) The importance of the case
(iv) The prospects of success
(v) The respondent’s interest in the finality of the case
(vi) The inconvenience of the court; &
(vii) The avoidance of unnecessary delay in the administration of justice".

In the **Stuttafords case** supra it is repeated at page 4 that-

"Condonation remains a sole discretion of the court, which discretion has to be exercised judicially upon a consideration of all facts at all times with a view of doing justice between man and man. A reading of the United Plant Hire (Pty) Ltd case, supra, shows that such exercise of discretion must be done after a consideration of all the relevant factors".

7. For a long time the courts have been complaining about the increase in cases of parties applying to be excused for failure to do this and that. It has indeed become an industry now. The level of tardiness or lack of diligence by legal practitioners has continued unabated. To this the courts have said that there is need to put a stop to it.


8. In the case of *Leonard Dzvairo* supra the court examines a number of authorities on the issue of tardiness. These authorities show that the courts are indeed groaning under the tardiness of lawyers. In the present case we see that the parties seem not to be aware that this is infact a case that requires an application for condonation for late filing of the heads and extension of time to file those heads of argument! When that is given the application for reinstatement follows. As a result of the lack of understanding of this procedure the parties did not assist the court at all. There is no application for condonation and for extension of time within which to file the heads of argument.

The application is fatally defective from this omission. It is this lack of understanding that also caused the parties not to address the issues of condonation. An application for reinstatement does not stand alone. See the cases of;

1. Yunus Ahmed v Docking Station Safaris Private t/a CC Sales, SC 70/2018.

2. (1) Sergeant Mhande 04737T (2) Constable Mhaka O 081215 B.

(1) The Chairman of the Public Service Commission

(2) The Commissioner General of Police

(3) The Minister of Home Affairs SC 63/2018.

9. In the Yunus Ahmed case supra, at page 3 thereof the court says that;

"It is the accepted position of the law that an applicant who has failed to comply with a given court order, or infringed the rules of the court must seek to be condoned or pardoned for non-compliance first before applying for reinstatement of their case.


In the case of Zimslate Quartize (Pvt) Ltd & Others v Central Africa Building Society SC 34/17 Ziyambi JA, when dealing with an almost similar matter remarked as follows:-

“An applicant who has infringed the rules of the court before which he appears must apply for condonation and in that application explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default…….An applicant who takes the attitude that indulgence, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed”. (my emphasis).

The court went on to strike the application for reinstatement as being fatally defective. At page 5 it says;

“Under normal circumstances, if this application had been properly before the court I would have been inclined to consider prospects of success. However given my position that the absence of an application for condonation and extension of time to seek reinstatement must be precedent to an application for reinstatement of this appeal, I consider the application as fatally defective.

I accordingly order that the matter be struck off”.

The case of **R. Chomurembe & Another v TelOne SC 86/2014** is equally instructive.

10. One may wonder why we have gone to such lengths to discuss all these foregoing issues. This is to show the inconvenience that everyone is put to by the parties when they take things for granted. Condonation is not for the asking. Parties must seriously apply their minds to the procedures. This case is seriously becoming an inconvenience in the corridors of the courts and it’s all because of what seems to be tardiness. But, be that as it may, the case must also go the same way as the Yunus Ahmed case supra. Consequently it is ordered as follows;

1. The application be and is hereby struck off.
2. The applicant pays the costs.


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