Killian Darare v Apostolic Faith Mission in Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/745/16
HELD AT HARARE 26 JULY 2016
CASE NO
JUDGMENT NO LC/H/745/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/745/16

HELD AT HARARE 26 JULY 2016				CASE NO LC/H/APP/95/16

& 18 NOVEMBER 2016

In the matter between:

KILLIAN DARARE						Applicant

And

APOSTOLIC FAITH MISSION IN ZIMBABWE		Respondent

Before The Honourable Muzofa, J

For Applicant		J Koto (Legal Practitioner)

For Respondent		O Shava (Legal Practitioner)

MUZOFA J:

On 26 July 2016 I struck off an application for condonation filed by the applicant.  Applicant requested for reasons and these are they.

The applicant applied for condonation of late noting of an application for rescission of judgment.  Before the matter proceeded into the merits the respondent raised a preliminary point that the applicant is approaching the court with dirty hands and therefore should not be heard.

In his heads of argument applicant did not make any submissions controverting the point in limine.  It was only in oral submissions that the issue was addressed.

The agreed background to the case is that there are two orders of this court in Case No. LC/H/263/15 and LC/H/APP/99/15 wherein applicant was ordered to pay costs.

The costs have been taxed and this is to the applicant’s knowledge.  Despite the taxation the applicant has failed to pay and instead approached this court in pursuit of case LC/H/263/15.  To that extent the applicant should be barred until he has purged his contempt.

Respondent agreed with the facts but contended that the applicant’s hands are not dirty on two grounds.  Firstly in that the applicant intends to appeal against the order incorporating the granting of costs.  In the event that he is successful the order of costs will fall away.

Secondly it was argued that the operation of non-payment of costs acting as a bar is only applicable where the order is specific that non-payment of costs shall bar the party from approaching the court.

The respondent relied on the case of Zellco Cellular (Pvt) Ltd v Cellular (Pvt) Ltd & Others 2012 (1) ZLR 164 (H) and ANZ (Pvt) Ltd v The Minister of State for Information & Publicity in the President’s Office & 2 Others SC 20/03.  In the Zellco Cellular case the court considered a point in limine such as this one before the court.  Despite the point in limine being dismissed for some of the reason the court noted that where a litigant files defective proceedings and refuses to pay costs it is clearly causing the other party unnecessary expense.

It is undisputed that the applicant was ordered to pay costs in the referred cases.  The costs were taxed.  The applicant was duty bound to comply with the orders particularly for the matter in which he seeks to have resuscitated LC/H/263/15 which forms the basis of this application.  The appellant withdrew an initial application similar to this, where he was ordered to pay costs.  He has failed to pay the costs.

Failure to pay clearly is in defiance of a court order.

This application by the applicant is substantially connected with the matter in LC/H/263/15 for the former is the basis of this application.

The legal position on the test in such circumstances as properly referred to by the respondent is set out in Hebstein & van Winsen: Civil Practice 4 ed at p 255

“That the issues between the parties were substantially the same, or that the issues were closely connected in the sense that they arose out of what passed between the parties in relation to the subject matter claimed in both actions”

at p 256

“Substantial identity of the causes of action is essentially, and mere connection in respect of the subject or the evidence not producing substantial identity in the actions does not suffice to bring into operation the rule that the second action should prima facie be stayed.

The court will not order a stay pending payment of the costs when the causes of action, although arising out of the same facts, are different, because no inference of vexaciousness or abuse of the court’s process is to be drawn from the institution of a second action in such circumstance and there is no mere repetition.  The court is not however, astute to find technical points of difference when in substance the controversy bears on the same transaction or event.”

In this case the applicant withdrew the application LC/H/APP/991/15 which application was in pursuit of resuscitating Case No. LC/H/263/15.  The effect of the application is similar to the application before the court.  The order of costs in LC/H/263/15 was an order upholding the appeal.  This application is inextricably connected with the other two cases.  To that extent the costs should be paid before applicant approaches the court.

The respondent has not advanced any legal basis justifying his defiance of the order.

Accordingly the following order is made

The application for condonation of late noting of an application for rescission of a default judgment be and is hereby struck off the roll for being improperly before the court.

Koto & Company, applicant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners