City of Harare v Musa G Chiunye & 8 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/594/16
HELD AT HARARE 1 JUNE 2016
CASE NO
JUDGMENT NO LC/H/594/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/594/16

HELD AT HARARE 1 JUNE 2016				CASE NO LC/H/APP/216/16

& 23 SEPTEMBER 2016

In the matter between:

CITY OF HARARE					Applicant

And

MUSA G CHIUNYE			                          1st  Respondent

J MAKARUDZE	2nd  Respondent

C.MUDEHWE	3rd Respondent

T.MASHAVA	4th  Respondent

R.NYAMANDE	5th Respondent

M.MBERI	6th Respondent

J.MAGOMBO	7th Respondent

N.MUKWAMBO	8th Respondent

T.MAVI	9th Respondent

Before The Honourable Makamure, J

For Applicant			C Kwaramba (Legal Practitioner)

For Respondents		In person

MAKAMURE J:

This is an application for upliftment of the automatic bar operating against the applicant after failing to file heads of argument timeously. It is opposed. It was also noted that the applicant’s legal practitioners did not file an assumption agency.  They should have done so as required by the rules.  The rules are clear on this and it is a mandatory requirement. Rule 18 of the Rules of this court, Statutory Instrument 59 of 2006 provides that: ‘’ (1) If a party is represented by a legal practitioner, the legal practitioner shall  file a written notice of assumption of agency in Form LC 5 with the registrar and serve copies of the notice to the other party or that party’s legal practitioner or representative.” (My underlining).  The respondents are correct in taking issue with the non-filing of the assumption of agency. It is noted that such has since been filed. That being the case the court will now deal with the question of the automatic bar.

The issue of failure to timeously file heads of argument is an issue which requires a proper explanation as would be the case in an application for condonation.  The party concerned must:

Explain the extent of the delay

Give a reasonable explanation for the delay

Show that there are prospects of success on the merits (See Eugene Chimpondah and Tidings Chimpondah v Gerald Pasipamire Muvami HH-81;2007)

In an effort to explain its non- compliance,an affidavit was filed by the applicant’s legal practitioner, one Hopewell Chitima.  In that affidavit he refer to errors made by his temporary secretary. He asserts that his own secretary was away on maternity leave.  There is nothing filed by the two secretaries in support of Chitima’s assertion .The two secretaries ought to each have filed separate affidavits stating exactly what happened.  I have no doubt that a legal practitioner can depose to an affidavit on behalf of his client. However, where he makes assertions on behalf of another person such other person must file their own affidavit in support of the legal practitioner’s assertions.  Mr Kwaramba who appeared on behalf of the applicant argued at length submitting that a legal practitioner can depose to an affidavit.  That is so but as indicated earlier on the legal practitioner should say what he did or did not do and leave what was done by his staff to be deposed to by that person.  Having stated the above, the respondents were correct to take issue with both the non-filing of assumption of agency and the contents of the affidavit by one Hopewell Chitima.  However in the interests of finality to litigation and the interests of justice,

I make the following order:

That in terms of Rule 26 of the Rules of this Court:

(1) The automatic bar operating against the applicant be lifted and that the heads of argument which were filed on 23 February 2016 out of time be deemed to have been filed timeously.

(2)  The application for leave to appeal be set down for hearing in terms of the rules.

Accordingly it is so ordered.

Mbidzo, Muchadehama & Makoni, applicant’s legal practitioners