Civil Aviation Authority of Zimbabwe v L. Saburi and 5 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/232/2014
HARARE, 20 FEBRUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE   	 JUDGMENT NO. LC/H/232/2014

HARARE, 20 FEBRUARY 2014	    		  	 CASE NO. LC/H/1014/12

& 11 APRIL 2014

In the matter between:-

CIVIL AVIATION AUTHORITY OF ZIMBABWE		Applicant

And

L. SABURI AND 5 OTHERS					Respondents

Before Honourable E Muchawa, Judge

For Applicant		-	Mr. E. Chiripasi (Trade Unionist)

For Respondent		-	Mr. O. T. Gasva (Legal Practitioner)

MUCHAWA J:

This is an application for upliftment of an automatic bar and condonation of late filing of heads of argument.

The respondents (appellants in the main matter) filed their heads of argument on the 28th March 2013 and served them on applicant’s legal practitioners of record on the 4th April 2013.  (note that applicant is respondent in the matter).

The applicant’s – legal practitioners then filed its heads of argument on the 11th June 2013.  This was way out of the fourteen days within which the heads of arguments should have been filed in terms of Rule 19 (2) (a)(i) of the Labour Court Rules SI 59/2006.  Such heads of argument should have been filed on the 24th April 2013.

On the 18th October 2013, respondent filed heads of argument in support of their opposition to the application for upliftment of bar and condonation.  Therein they raised a point in limine that applicant was once again barred for failure to file heads of argument in support of the application.  It was argued that it was ironic that applicant who was trying to purge its earlier default in the appeal was once again in non compliance of the Rules.

A perusal of the record however shows that applicant filed heads of argument on the 9th September 2013.

At the hearing respondent abandoned the point in limine.  I commend respondent for not wasting the court’s time in this regard and agreeing to proceed to the merits.  This is because the Court would be inclined to consider the court’s date stamp for confirmation of the date of filing of court process.  In this case the 9th September was within the time in which applicant could file their heads of argument.

I proceed to consider the application before me and I am grateful to both parties for filing comprehensive heads of argument.  Applicant raised the point in limine that the deponent to respondent’s opposing affidavit is not a party to the proceedings hence his deposition is irregular and defective at law as he does not have locus standii to the same and has not explained his authority for doing so.

In these proceedings respondents have been represented by the National Airways Workers Union (NAWU) as their Union.  A Mr. E. Chiripasi has been the representative.  He deposed to the opposing affidavit in his capacity as the “respondent’s Vice President”.  It was clarified in the heads of argument that he is in fact the Vice President of the Workers Union that is representing the respondents in this matter and in that capacity he can swear positively to the facts as envisaged by the law.

Applicant referred me to the case of TelOne (Pvt) Ltd v Communications and Allied Services Workers Union and Net One employees 2006 (2) ZLR 136 (S) for the assertion that Mr. E. Chiripasi has no locus standii to depose to the affidavit in question.  In my opinion that case is different from the present one as it related to whether the fifty six dismissed workers had been properly cited.  The Court found they had a substantial interest in the matter and that they had been properly cited therefore.

I was better assisted by the cases referred to by respondent.  The case of Zimbabwe Open University v Magaramombe and ORS HH 45/12 which was dealing with the case of proof of authority to act on behalf of a company held that each case must be dealt with on its own merits in deciding whether enough has been placed before the Court to decide if someone is authorized to act on behalf of the parties before it.  Even though there was no resolution filed, the Court considered that the deponent had filed founding affidavits on behalf of applicant in the protracted litigation between the parties.  It was found that the application was that of the applicant and not of the deponent.

In Chiriga Estates (Pvt) Ltd and ORS v Ministry of Lands and ORS HC 665/10 it was stated

“In addition there would be nothing wrong for a legal practitioner to depose to an affidavit on behalf of a client as long as he positively swears to the facts.”

I know that Mr. E. Chiripasi is not a legal practitioner.  Section 92 of the Labour Act however gives both legal practitioners and officials or employees of registered trade unions, the right to represent parties before the Labour Court.  As a trade unionist I believe there is nothing wrong for Mr. Chiripasi to depose to an affidavit on behalf of the respondents as long as he can positively swear to the facts therein.

In the circumstances I find no merit in the point in limine and dismiss it.  The opposing affidavit is therefore properly before me.

The Application for Upliftment of Bar and Condonation

The principles relevant to granting of condonation by the court were laid out in the case of Kodzwa v Secretary for Health and Anor 1999 (1) ZLR 313 (S).  This is not a mere formality and a party has to show sufficient cause to excuse him from compliance.  Proper judicial discretion should be exercised and the following factors should be considered;

degree of non-compliance.

explanation for non compliance.

the importance of the case.

prospects of success.

respondent’s interests in the finality of the judgment.

the convenience of the court.

the avoidance of unnecessary delay in the administration of justice.

Overally the court is urged to consider what is in the interests of fairness and justice.

Degree of Non Compliance and Explanation on for this

Applicant’s delay is a two months delay.  I was referred to the case of Chimpondah & Anor v Murami 2007 (2) ZLR 326 (H) where a delay of two months in the filing of Heads of Argument was condoned which delay had resulted from the negligence of a legal practitioner.

In casu the explanation for the delay is that a Miss Kudzai Madzivanyika who was handling the matter at Chirimuuta and Associates, left employment at the end of March 2013 and at her handover did not indicate that the Respondent’s heads of argument had already been served on the firm.  It is alleged that it was only when a mid year report was being compiled that this was discovered and a Mr. Gasva then took over the file and filed the heads of argument out of time.

Respondent argues that this matter has always been handled by Mr. Gasva and not by Miss Kudzai Madzivanyika.  I was referred to the file reference OTG for this assertion.

It is respondent’s second contention that they only served their heads of argument on the applicant on the 4th of April 2013 after Miss Kudzai Madzivanyika had already left the firm.  She could therefore not have indicated in her handover that the heads of argument had been received yet they came after she had left.

My finding is that applicant has not been candid and honest with the Court in its explanation of the non compliance.

In Friendship v Cargo Carriers Limited and Anor SC 1/13 it was held as follows:

“Condonation is an indulgence which may be granted at the discretion of the Court.  It is not a right obtainable on demand.  The applicant must satisfy the court/judge that there are compelling circumstances which would justify a finding in his favour.  To that end, it is imperative that an applicant for condonation be candid and honest with the court”

In this case I find it difficult to hold that there is a reasonable explanation for the default.  The explanation given is only for the convenience of the legal practitioner and not for the court and the other party.  It is drawing the court into the operations of law firms and that is unacceptable (See Mubango v Undenge HC 110/06)

It does not help applicant that they have not filed an affidavit from Miss Kudzai Madzivanyika for her to explain the facts she is blamed for.  I note that in this day and age of advanced technology, distance and frequent travel should not be blamed for failure to file relevant documents.

In a case such as this, where there is no acceptable explanation for non compliance, the indulgence of condonation may be refused whatever the merits of the appeal may be (See Kodzwa v Secretary for Health and Anor supra at page 315 F-H and Mubango v Undenge HC 110/06)

I take this position noting that this is an application for condonation of late filing of Heads of Argument and upliftment of an automatic bar.  The matter will still be dealt with on the merits and the court will consider and deal with the issues raised in the notice of response by applicant.  The prospects of success on the merits will still be considered then.

I therefore decline the application for condonation of late filing of Heads of Argument and upliftment of an automatic bar.  Parties and their lawyers should be vigilant in prosecuting their claims.

Respondent has prayed for costs on a higher scale in respect to this application.  I have already found that applicant has not been candid and honest with the court in the explanation for the delay.  In the circumstances costs on a higher scale are justified.

Accordingly I order as follows:

The application for condonation of late filing of Heads of Argument and upliftment of an automatic bar be and is hereby dismissed with costs on a higher scale.

Chirimuuta & Associates, Respondent’s legal practitioners