Lazarus Matika v Arcturus Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/646/2013
HARARE, 14 AND 22 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/646/2013

HARARE, 14 AND 22 NOVEMBER 2013	    		  CASE NO. LC/CON/H/88/13

In the matter between:-

LAZARUS MATIKA					Applicant

And

ACTURUS MINE						Respondent

Before The Honourable F.C. Maxwell,: Judge

For Applicant			Miss J. Mawora (Legal Practitioner)

For Respondent			Mr T. Tandi (Legal Practitioner)

MAXWELL J.;

This matter was set down for hearing on 14 November 2013.  At the commencement of the hearing Applicant’s legal practitioner made an application for postponement of the matter.  The basis for her application was that she was not the one dealing with the matter and had been instructed to seek a postponement.  One Chiwashira from the same law firm was dealing with the matter and was ill.  She tendered a medical certificate from Doctor L.T. Matanhike which indicated that Fungai Chiwashira had been granted off duty from 13 November 2013 to 14 November 2013.

Respondent opposed the application for postponement on the basis that Applicant is barred.  Applicant has not filed Heads of Argument as required by Rule 19 of the Labour Court Rules SI 59 of 2006.  Respondent urged the Court to deal with the matter in terms of Rule 28 (6)(b) of SI 59 of 2006.

The Court agreed with the submissions for the Respondent.  The request for postponement was refused and the Court proceeded to consider the merits of the matter.

The application for condonation was filed on 6 August 2013.  On 5 September 2013 Respondent opposed the application and the Notice of Response was served on the Applicant on 10 September 2013.  Applicant should have filed Heads of Argument within fourteen days of receipt of the notice of response.  That was not done.

On 17 October 2013 Respondent filed Heads of Argument bringing to the attention of the Court that Applicant was barred.  The Heads of Argument were served on Applicant’s legal practitioners.  One would have expected that to provoke action from Applicant.  Surprisingly nothing was done until the date of hearing when a request for postponement was made.

The notice of set down was served on the Applicant’s legal practitioners on 29 October 2013.  Applicant is clearly not serious and has demonstrated a lack of interest in prosecuting his case.

The conduct of Applicant’s legal practitioners deserves comment in this case.  In the founding affidavit to the application for condonation Applicant gives the reason for delay in noting appeal as having followed the wrong procedure of conciliation.  This was despite the fact that the application for conciliation was filed by Applicant’s Legal Practitioners.  The determination by the Appeals Committee sought to be appealed against clearly states as a last statement.

“Lazarus was advised of his right of appeal to the Labour Court”.

Clearly the Applicant’s legal Practitioners were not diligent and their ineptitude is confirmed by the way they have handled this application.  Consequently Applicant cannot escape the result of his attorney’s lack of diligence.  See Kombayi v 	Berkhout 1988 (1) ZLR 53.  The delay in noting the appeal is therefore not excusable.

Furthermore the Court is not convinced that there are any prospects of success on appeal.  Applicant admitted committing the offence of willful disobedience to a lawful order.  That is an act that goes to the root of the contract of employment.  As stated in Mashonaland Turf Club v Mutangadura SC 5/12 there is no basis for an appeal Court to interfere with the penalty of dismissal unless it is shown that there was gross misdirection.

Therefore the Court finds no merit in the application for condonation for late noting of appeal and accordingly dismisses it with costs.

Pundu & Associates – Applicant’s Legal Practitioners

Kantor and Immerman – Respondent’s Legal Practitioners