Ministry of Education, Sports, Art & Culture v Edmore Hlomai

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/201/2014
HARARE, 17 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/201/2014

HARARE, 17 MARCH 2014&			   CASE NO LC/H/21/2013

28 MARCH 2014

In the matter between:

MINISTRY OF EDUCATION, SPORTS,			APPLICANT

ART & CULTURE

Versus

EDMORE HLOMAI							RESPONDENT

Before The Honourable L Kudya  :  Judge

For the Applicant	C Karinga (Legal  Practitioner)

For the Respondent T Madondo  (Legal Practitioner)

KUDYA J:

This matter was set down before me as a rescission of judgment application by the employer of a judgment which was granted in default by the Labour Court in favour of the employee. Parties will in the entirety of this judgment be referred to as employer and employee to avoid confusing the record since the record is replete with the parties interchanging roles depending on what application was before the court at the various stages.

On the hearing date of the rescission application the employee brought to the court’s attention the fact that he had prior to the set down of the rescission application applied to this court for a dismissal of that very application in terms of rule 19 (3) 9(a).

A perusal of the record then did not show that there was any such application. The rescission application was stood down to allow the Registrar to look into the matter and advise accordingly.

On report back the Registrar indicated that indeed such an application had been made but it had inadvertently not been filed in the record. It was consequently brought to the court’s attention.In that regard the employee persisted in his prayer that the 19 (3) (d) application be disposed of first.

The court agreed with the request taking into account the fact that indeed the application had been made and issued properly but unfortunately not found its way to a judge for determination timeously. In the ultimate the court proposed that it could grant the 19 (3) (a) as a matter of course but in order to try and avoid being too technical it however left room open for the employer to come and explain its default of filing of heads timeously.

This avenue was used with the hope that if a plausible explanation wasproffered and the court assessed the strength of the main case on the merits it could be persuaded to authorise that the matter be set down on the merits notwithstanding all the breaches of the timelines.

In the result, the court made an order dated 13 February 2014 where it allowed the 19 (3) (a) application and also postponed the very rescission matter which it had technically dismissed in terms of rule 19 (3) (a). After all that was done parties were mandated to have the rescission set down by consent for argument on a later date. Efforts to do that yielded the unsavoury result where the employer’s lawyers kept defaulting on the set dates until the court had to instruct the Registrar to liase with the employer’s counsel’s superiors to ensure that the counsel attends court which he finally did and made submissions which are the basis of the instant judgment.

In the instant matter the employer’s counsel submitted that he was orally seeking to have his client condoned for late filing of the heads on the rescission application. He said that this was just due to an oversight on his part and also his view that such non-compliance was not fatal as in his view what was important was to have the matter concluded on the main merits of the appeal.

In response, the employee opposed the condonation and maintained that no convincing excuse had been proffered for such. Besides the employer had not moved the court to set aside the 19 (3) (a) order which had been granted technically so that the rescission application remains on the papers properly thereafter.

The law on condonation is very clear. See Jansen v Acavalos 1993 (1) ZLR 216 (S).It is the cumulative effect of the tiers laid out in Jansen that entitles one to relief.

In the instant case all that has been placed before the court is a casual excuse that the heads were not done and placed before the court timeously. It need be noted that the same casual attitude has permeated throughout the whole case if looked at from the backdrop of the fact that even the instant submissions had to be drawn out of the employer representative who was not turning up at court despite agreement to do so.

In fact even going as far back as the default judgment it is apparent that the employer has exhibited lack of seriousness in the presentation of its matter. The law is clear that it only assists the vigilant and not the sluggard.

No good reasons have been proffered for the default and apart from a mere say so that the appeal is merited nothing more has been placed before the court to support the condonation. It would thus be unjust to let the employer keep on taking the courts for granted in a bid that the court will just grant its relief for mere asking. It is clear that no good case for the condonation has been made out and in the result there is no good reason to let the rescission application be heard on the merits. In the result the condonation application should fail and the order dismissing the rescission application should accordingly stand.

IT IS ORDERED THAT:

Application for condonation of late filing of heads of argument in the rescission application by the employer being without merit it be and is hereby dismissed with costs.

The order of 13 February 2014 dismissing the rescission application is accordingly to stand.

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

Jarvis Palframan, respondent’s legal practitioners