Ministry of Public Service, Labour & Social Welfare v Susan Chikumene

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/241/16
HARARE ON 29 FEBRUARY, 2016
th
---------




IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/241/16

HARARE ON 29th FEBRUARY, 2016		             	 	 CASE NO. LC/H/APP/1246/15

AND 13th MAY, 2016             	  X REF LC/H/505/15

In the matter between

MINISTRY OF PUBLIC SERVICE, LABOUR

& SOCIAL WELFARE				–	APPLICANT

And

SUSAN CHIKUMENE				-	RESPONDENT

Before The Honourable D.L. Hove, J.

For Applicant  	 :	Mr L.T. Muradzikwa (Civil Division)

For Respondent	 : 	In Person

HOVE, J.

This is an application for condonation for failure to file a Notice of Response to the respondent’s appeal in case number LC/H/505/15.

The respondent is a self-actor.

It was pointed out to the applicant’s legal representative, when the matter came up for hearing, that his clients had not filed any heads of arguments in relation to the application for condonation. The Rules require that heads of arguments be filed by a litigant who is represented by a legal practitioner.

Rule 19 of the Labour Court Rules, 2006 provide that;

“19(1)(a)	Where an applicant or appellant is to be represented by a legal

practitioner at the hearing of the application, appeal or review, the legal practitioner shall –

within 14 days of receiving a notice of response to the application, appeal or review, lodge with the Registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities, if any, which he or she intends to cite, and

(b)	immediately afterwards deliver a copy of the heads of argument to the respondent and lodge with the Registrar – proof of such delivery as required by Rule 11.”

In casu, the legal practitioner for the applicant did not comply with Rule 19(1). He admitted that he had not filed his client’s heads but neglected to explain to the Court why he had not filed his client’s heads.

A defaulting party is in terms of Rule 19(3) (b) barred.

Not only did the applicant’s representative fail to explain why he had failed to comply with the Rules, he further failed to apply for the upliftment of the bar that was operating against his client.

He preferred to address the Court on the merits of the application for condonation.

In regards to the merits of the application for condonation the applicant’s legal representative stated that he was required to show good cause why his client did not comply with the Rules of the Court failing to file a notice of response to the appeal filed by the respondent on 5th June 2015.

He submitted that the reason why they failed to file a response was that they were occupying two buildings in the central business district. These two buildings have one registry and they were moving offices. This resulted in the application being lost hence they could not respond to it.

The Court was urged to condone the delay and reliance for this proposition was placed on the Kodzwa vs. Secretary of Health 1999 (1) ZLR 313 (S).

Where it was stated that the granting or refusal to grant an application for condonation is based on a number of factors and an exercise of discretion by the Court and the principles of fairness between the parties.

The Court was not persuaded that the applicant had managed to give a reasonable explanation for its failure to comply with the Rules. The explanation that they occupied two buildings which share a registry and the fact that they were moving offices is not good enough explanation it reveals a serious lack of care and diligence in the manner the appellant handled its Court cases. Once a Court application has been received and acknowledged it must be placed in the hands of persons responsible for the management of court cases. The law says that responses must be filed within prescribed periods so the respondent ought to have known and exercised due diligence and not allowed serious court papers to be lost in the common registry.

The Court in the case of Forestry Commission vs. Moyo 1997 (1) ZLR 254 (S) held that grave non compliance with the Rules should not be condoned, particularly where the matter is not even properly before the Court.

In this case, the applicant is improperly before the Court. There is a bar operating against him for which he has not applied for the upliftment of. The applicant’s legal representative did not seem to think that it mattered that his client’s heads of argument had not been filed and that he was barred but preferred to address the Court on the merits of his application.

In the Forestry Commission case (supra) the Court stated that though the Rules of Court are not an end in themselves, ----- they are there to regulate the practice and procedure of the Court, strong grounds would have to be advanced to persuade the Court or Judge to act outside them.

The applicant have failed to seek for the upliftment of the bar that is operating against them and further they have not even given a good reason on the merits of the application before the Court to persuade me to condone the failure to comply with the Rules. I have had occasion to deal with a similar case in the case of National Airways Workers Union and Air Transport Union vs. Air Zimbabwe (Pvt) Ltd LC/H/67/11 at page 4 of the cyclostyled judgment where I had this to say;

“The respondent’s legal practitioner ought to have realized that their heads were yet to be filed. In the circumstances of the matter, attending court on 24 January 2011 without having filed heads of arguments and neglecting to apply for condonation was in my opinion an extreme case of failing to exercise due diligence. The court thus finds that in terms of the Rules, there is no reasonable explanation and further that the respondent has not sought or obtained condonation. They are thus barred.”

I however listened to the explanation for the failure to file the notice of response. To enable the Court to exercise its discretion judiciously, a certain criteria has been laid down. The Court is to consider the extent of the delay, the reasonableness of the explanation and the prospects of success.

In the case of Khumalo vs. Mandeya & Anor. SC-23-08, the Court rejected an explanation for the delay that showed that the legal practitioner had not properly prepared for his client’s case. In casu the representative was not even sure of the extent of the delay which he initially gave as 7 months but later changed to 4 months. This displays a lack of seriousness and the fact that the legal practitioner had not bothered to prepared and get his facts down properly before appearing to argue the matter. Applications for condonation are not given for the mere asking but good and reasonable explanations must be given to persuade the Court to exercise its discretion in favour of the applicant.

The respondent has disputed the factual correctness of the explanation given that the appeal had been lost. She submitted that all along the applicant where persuading her to withdraw the matter and told her that they were prepared to settle out of court. Negotiations had then ensued between the parties.

It is thus evident and accepted by the Court that at all times the applicant were aware of the matter and neglected to file their opposing papers. Maybe they assumed that an out of court settlement would be reached but it shows that they are not totally candid with the Court and the explanation given is not a truthful one.

The Court has in the case of P.E. Bosman Transport Works Committee & Ors. vs. Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 stated that;

“In a case such as the present, where there has been a flagrant breach of the Rules of this Court in more than one respect, and where in addition there is no explanation ---- the application should, in my opinion, not be granted whatever the prospects of success may be.”

So while the prospects of success are an important, though not decisive, a consideration, where there has been, like in this case.

Flagrant breach of the Rules

A bar for which no application has been made to seek its removal

An unreasonable explanation which is not even a truthful one

An inordinate delay

The Court should dismiss the application for condonation whatever the prospects of success are.

In the result, the application for condonation is dismissed.

There is no order as to costs.

Civil Division of the Attorney General’s Officer – applicant’s representative.