Grace Musa v Allan Wack & Shepherd (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/526/14
HARARE ON 21ST MAY, 2014 AND 27TH JULY, 2014
CASE NO. LC/H/950/12
AND 15 TH
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/526/14

HARARE ON 21ST MAY, 2014 AND 27TH JULY, 2014                        CASE NO. LC/H/950/12

AND 15TH AUGUST, 2014

In the matter between

GRACE MUSA      						–	Applicant

And

ALLAN WACK & SHEPHERD (PRIVATE) LIMITED	–	Respondent

Before The Honourable P. Muzofa, J.

For Applicant :	E. Mangezi (Legal Practitioner)

For Respondent:	P. Chiwetu (Legal Practitioner)

MUZOFA, J.

The Applicant’s appeal before this Court was dismissed on 20th June 2013. The Applicant intended to appeal against the dismissal but was out of time. The Applicant then filed an application for leave to appeal to the Supreme Court coupled with an application for condonation. Since this was an improper procedure the Applicant then withdrew both applications. Thereafter Applicant filed this application for condonation for late filing of the application for leave to appeal to the Supreme Court.

The application was set down to be heard on 21st May 2013 the Court reserved its judgment on the preliminary issues raised. An application by the Respondent for the dismissal of the application for condonation was referred to me thereafter. The Court requested the Registrar to invite both parties to deal with the issues raised in the application for dismissal in terms of Rule 19(3)(a) of the Labour Court Rules (the Rules). This was because the basis of the dismissal was the preliminary point raised in the application for condonation. Both parties were served to attend Court but the Applicant’s legal representatives failed to attend. Rule 19 deals with the filing of heads of argument where a party fails to file heads of argument within the prescribed time the non- defaulting party can apply for the dismissal of the matter. Rule 19 (3) (a) provides that;

“----- the registrar shall nevertheless set down the application, appeal or review for hearing in terms of Rule 21 unless, at any time before the matter is set down the party who is not in default applies to a President of the Court in Chambers for the application, appeal or review to be dismissed or granted, as the case may be;”

In my view an application for dismissal in terms of that Rule can only be made before the application, appeal or review has been set down. In casu the application for dismissal by the Respondent was referred to the Judge after the application for condonation was set down. The application for dismissal was therefore taken over by events. It must therefore be struck off.

Having disposed of the application for dismissal I will address the application for condonation for late filing of leave to appeal to the Supreme Court. Before the matter went into the merits the Respondent raised a preliminary point that the Applicant is barred since the heads of argument were not filed within 14 days. It was submitted that the Applicant’s heads of argument were supposed to be filed by 20th March 2014. The undisputed facts of this case are that the Applicant was represented by Messrs Mapaya and Partners who filed the application for condonation. They later renounced agency albeit after the dies inducie for filing heads of argument had expired. Messrs Mambara and Partners assumed agency on 30th April 2014 well after the dies induciae. It was submitted by Counsel for the Applicant that when the legal practitioners assumed agency they did not see the notice of response in the record. Therefore it was assumed the application was unopposed. They had sight of the notice of response on the morning of the hearing of the application.

There is a clear laxity in Applicant’s manner of prosecuting this case. It would appear from the outset the Applicant has not been diligent in dealing with the case. As a starting point I am unconvinced by the explanation by the legal practitioners why heads of argument were not filed. If indeed there was a semblance of diligence the legal practitioners after receiving instructions from the Applicant. It was upon them to ascertain the position of the client’s case. The Court record clearly has the notice of response. Pleading that it was not seen is as good as pleading negligence. As a result it was not in dispute that the Applicant failed to file heads of argument. No application was made for condonation for late filing of heads of argument. The Court cannot extend its indulgence to a litigant who has not sought to be condoned see generally Forestry Commission v Moyo 1997 (1) ZLR 254 (SC).

The Applicant is barred. The implication of the bar is that the application is improperly before the Court and should be dismissed.

Accordingly the following order is made:

The preliminary point being with merit it be and is hereby upheld.

The Applicant is barred. The application for condonation be and is hereby struck off the roll.

There is no order as to costs.

Mambara and Associates – Applicant’s legal practitioners

Gwaunza & Mapota – Respondent’s legal practitioners