Mary Takavarasha v The Secretary Ministry of Finance & Economic Development

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/519/16
HELD AT HARARE 15 JUNE 2016
CASE NO
JUDGMENT NO LC/H/519/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/519/16

HELD AT HARARE 15 JUNE 2016				CASE NO LC/H/104/16

& 9 SEPTEMBER 2016

In the matter between:

MARY TAKAVARASHA					Applicant

And

THE SECRETARY MINISTRY OF FINANCE &			Respondent

ECONOMIC DEVELOPMENT

Before The Honourable Hove, J

For Applicant			Mrs L Chiperesa (Legal Practitioner)

For Respondent		F Chingwere (Civil Division)

HOVE J:

The matter was reserved to enable me to consider whether the respondent who had failed to file a notice of response in terms of the Labour Court rules, 2006, had shown good cause for his failure to file a response.

Initially the respondent had requested the court to postpone the matter to enable then to pursue an application for condonation and up lifting of the bar that was operating against then.  The court did not agree that the postponement would serve any useful purpose.  The court advised the applicant that the matter would proceed in terms of rule 22 (a) where in a defaulting party could appear before the court and show good cause why he or she did not file a response.

The respondent was thus invited to submit to the court whether there was any good cause for failing to file a notice of response.

The appeal had been filed on 25 February 2016.  Service on the respondent had been effected on 26 February 2016, the Registrar served the notice to respond on the respondent on 4 March 2016 the Labour Court was served with the record of proceedings.  But no notice of response had been filed.

It is beyond dispute that the respondent was aware of the proceedings that had been instituted by the appellant.  It is not disputed that no response was filed in terms of the rules.  The reasons given for the default or failure to comply with the rules of court is that there was a clerical error.  The error is not explained or further elaborated on, except to say that there are several cases involving the same parties and that there had not been a response to this appeal “by accident.”

I do not find this to be good reason for failure to file the response as was required in terms of the rules.  The attempt to explain reveals negligence on the part of the respondent.  They were fully aware of the appeal and because they have other matters, they were not diligent in ensuring that all the matters were being prosecuted diligently.  Lack of diligence cannot be a good reason for failing to comply with the rules of court.  What it means is that there is in effect no reasonable explanation.

The law requires that there be reasonable explanations for or delays and failures to comply with the rules.  See in this regard the case of Prosper Ganda & 13 Others v First Mutual Life Assurance Society SC 1/05.

Where an explanation for condonation lacks a reasonable explanation as to why the applicant failed to approach the court timeously, it should be dismissed without even canvassing the aspect of prospects of success.  The Supreme Court in the case First Mutual case (supra) stated that

“In a case such as the present where there has been a flagrant breach of the rules of this court --- in addition there is no acceptable explanation at all, the application should in my opinion, not be granted whatever the prospects of success maybe.”

Further, it is a well accepted position of law that the law will help the diligent and not the sluggard.  Ndebele v Ncube SC 58/92.  It is a finding of this court that the facts of this matter reveal a serious lack of diligence and thus the court cannot come to the assistance of the respondent.

There has not been shown any good cause and the matter must accordingly proceed in terms of rule 22 (b).

In the result;

The Registrar will set the matter down for continuation before this court on notice to the appellant and in terms of the aforesaid rule 22 (b).

Mkuhlani Chiperesa Legal Practitioners, appellant’s legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners