Frontier Steels v Timothy Murasiranwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/432/2014
HARARE, 13 FEBRUARY 2014
CASE NO
JUDGMENT NO LC/H/432/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/432/2014

HARARE, 13 FEBRUARY 2014 &		          CASE NO LC/H/230/2011

18 JULY 2014

In the matter between:

FRONTIER STEELS						APPLICANT

Versus

TIMOTHY MURASIRANWA					RESPONDENT

Before the Honourable D L Hove :	Judge

For the Applicant	Ms P Takawadiyi (Legal Practitioner)

For the Respondent  K Gama (Legal Practitioner)

HOVE J:

This is an application for upliftment of the bar that is currently operating against the applicant who failed to file its heads of arguments as is required by the rules of this court.

Background facts are that on 8 September 2006 an award was issued by honourable Arbitrator in favour of the employee.

The employee was not reinstated and he applied for quantification of damages. The arbitrator in April 2011 quantified the damages in an award that the applicant is now seeking to appeal against.

The court in application of this nature, will look at the reasons for the delay, the degree of non-compliance prospects of success in the main appeal, whether or not the applicant was in wilful default and the convenience to the court. In this case the reason given for the delay in filing the heads is that the applicant company was facing operational challenges. It is not operating full scale. Their representative submitted that at the time when they ought to have filed their client’s heads of arguments in terms of the rules of this court they lost communication with the applicant company, their client.

The respondent challenged the application for the upliftment of the bar.

The respondent submitted that the applicant challenged, in a notice of appeal, the arbitral award in favour of the respondent on April 29, 2011. The award had been issued on 4 April 2011. The appeal was opposed by the respondent on 20 July 2011.

In terms of rule 19 of the Labour Court Rules, 2006, S I 59 of 2006, upon receiving the respondent’s response to the appeal on 20 July 2011, the applicant was required to file heads of argument through its legal practitioners of record, P Takawadiyi & Associates, on or before 9 August 2011.

The applicant did not file its heads of arguments as required until 7 June 2012 when they filed a “Chamber Application for upliftment of automatic bar” and its heads of arguments.

The delay in filing the heads was some ten months. The delay is clearly inordinate.

The reasons given, that the applicant and its legal practitioners, lost contact of each other is feeble to say the least. There is no plausible explanation for the delay. The legal practitioners did not indicate to the court that they were having difficulties in communication with their clients neither did the clients do so. A party can in terms of the rules seek extension of the time periods allowed but this did not happen until 23 May 2012 when the matter was set down for hearing in the Labour Court at that time no heads of arguments had been filed for the applicant company.

The notice of set down, seems to be what jolted the applicant in to action as on 7 June 2012 they sought to be condoned and also filed their heads. It is not clear when communication was re-established. What is clear was that when the matter was set down for hearing the lawyers were in attendance apparently with full instructions. I must agree with the respondent that their attendance on 23 May 2012 bears out the fact that they had full instructions to represent their client. Again the fact that they never renounced agency also show that the applicant company was fully represented from the time it noted the appeal to the present day. They ought to have complied with the rules.

No matter how one looks at the facts, one cannot run away from the fact that there is simply no reasonable explanation for the default and hence the default can only be regarded as wilful.

Once I make the finding as I have done that the default was wilful, I cannot came to the applicant’s assistance however strong their case may be.

This court has been referred to the cases of Karimazondo v Standard Chartered Bank Zimbabwe 1995 (2) ZLR 404 (SC) and Mdokwani v Shoniwa 1992 (1) ZLR 269 (SC) in support of the preposition that where a litigant’s default is wilful the merits of their case do not matter. The case must end there.

Further, there must be finality to litigation. The law will assist the diligent and not the sluggard. Ndebele v Ncube 1992 (1) ZLR 288.

It is for the above reasons that this application must fail.

I accordingly make the following order:

The application for upliftment of bar be and is hereby dismissed.

There is no order as to costs.

Takawadiyi & Associates, applicant’s legal practitioners

Gama & Partners, respondent’s legal practitioners