CITY OF Harare V Agatha Nyanga

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/826/2014
HARARE, 26 NOVEMBER 2014
CASE NO.
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THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/826/2014

HARARE, 26 NOVEMBER 2014	    		         CASE NO. LC/H/265/14

AND 19 DECEMBER 2014

In the matter between:-

CITY OF HARARE					Appellant

And

AGATHA NYANGA					Respondent

Before Honourable E. Muchawa, Judge

For Appellant	Mrs. A. Zvoutete (Principal Legal Officer) City of Harare

For Respondent		Mr. B. Machengete (Legal Practitioner)

MUCHAWA, J:

At the hearing of an appeal in this matter, respondent made an oral application for a postponement of this matter to enable the filing of heads of argument, which are outstanding.

On the 26th March 2014, appellant filed a notice of appeal with this court.  A notice of response was duly filed on the 19th May 2014.  On the 16th June 2014 appellant’s heads of argument were duly filed.  Despite being properly served with a notice of set down of the matter, respondent who was represented by legal practitioners had not filed any heads of argument by the 26th November 2014.

The application before me is essentially an application for Condonation for late filing of heads of argument incorporating a request for an extension of time to enable the filing of such heads of argument.

Rule 19 (2) (a) provides that a respondent to be represented by a legal practitioner at the hearing, shall file heads of argument within fourteen days after receiving appellant’s heads of argument.

In an application for Condonation I am enjoined to consider the following factors;

Degree of non compliance.

Explanation for it.

Importance of the case.

Prospects of success.

Respondent’s interest in finality of the judgment.

Convenience of the court.

Avoidance of unnecessary delay.

(See Kodzwa v Secretary for Heath and Anor 1999 (1) ZLR 313.

I deal with each of these factors below.

Degree of non compliance

Respondent’s heads of argument are some four months and 26 days out of time.  This is generally an inordinate delay if regard is had to the 14 days provided for in the Rules.

Explanation Tendered

Respondent’s lawyer, one Mr. Machengete explained that this matter was being handled by a Mr. Chakurira who has since left the law firm.  He claimed to have had the file brought to his attention just a day before the hearing.  It is only then, that he claims to have noticed that there were no heads of argument filed on behalf of respondent.

A perusal of the notice of response filed on the 19th May 2014 however revealed that as at that date, Mr. Machengete has signed off as the attending lawyer in this matter.  When I put this to Mr. Machengete, he explained that it was a referencing system in their law firm and he was not the one responsible for the file.

I find that explanation unsatisfactory and have pointed out before that law firms should strengthen their file management systems.

I also got a sense that the lawyer felt that the postponement and Condonation would be granted as a matter of mere asking.  He had not bothered to even address me on the prospects of success.

Let me point out that the setting down of matters and postponements inconvenience the court and the other party.  Time is wasted reading the record in preparation for the hearing.  Other matters that could have been set down are left out thus creating a backlog.  The applications for mercy create other unnecessary files.  This is unacceptable unless good cause is shown.  (See Ndebele v Ncube 1992 (1) ZLR 288.

Prospects of Success

The arbitral award appealed against found that respondent was on continuous sick leave as evidenced by the Service Registration part II dated 7th September 2008.  This leave was found to have been extended to the 21st May 2009.  In the end respondent was found to have been unlawfully dismissed and reinstatement was ordered.

Appellant argues that respondent was absent from work without reasonable cause with effect from 20 August 2008 to 23 February 2009 in contravention of the relevant Code of Conduct.  The service Registration Part II does not relate to an application for sick leave.

I was referred to Clause 19 (1) of the Collective Bargaining Agreement: Harare Municipal Undertaking (Leave Agreement) SI 390/1992 which provides as follows;

“Subject to the provisions of this clause, an employee may be granted sick leave by his head of department.”

In casu it is clear that respondent was not granted sick leave by her head of department during the relevant period.  She did not fill in a leave application form.  The continuous sick leave was granted from May 2008 to 22 August 2008.

I find that the arbitrator considered evidence in respect to periods falling outside the relevant period respondent was charged of as well as a form which does not relate to an application for sick leave.

The continuous sick leave respondent relies on was not granted by the Head of Department but by the Central Clinic.

This matter falls squarely on the City of Harare v Zimucha 1995 (1) ZLR 285 matter.  I am persuaded by this reasoning.

“Sickness per se does not entitle an employee to stay away from work and continue to draw his salary.  It entitles him to apply for sick leave (or annual leave).  If that is granted, he is then entitled for a time to be paid while not working.  But if he does not apply for sick leave and obtain it, he is simply absent without leave or … “he is absent without permission”.

In the light of the facts of this matter and the applicable law, I do not see how respondent can claim to have any prospects of success on appeal.

I have already spoken to the convenience of the court.  It is important to bring finality to litigation and appellant does clearly have an interest in the finality of this matter as evidenced by the vigilant prosecution of this matter.

I therefore find no merit in the application by respondent, to condone the non filing of heads of argument and postpone the matter.  I accordingly dismiss that application.

Respondent is barred.  In dealing with the matter on the merits in terms of rule 19 (3) (b) the appeal succeeds.

The arbitral award is set aside and substituted as follows

“The claimant’s claim be and is hereby dismissed.  The decision of the city of Harare Disciplinary Hearing Committee be and is hereby upheld.”

RUBAYA & CHATAMBUDZA, Respondent’s legal practitioners