Nicci Macklin v Quest Motor Corporation (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/451/16
HELD AT HARARE 20 JUNE 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			      JUDGMENT NO LC/H/451/16

HELD AT HARARE 20 JUNE 2016				       CASE NO LC/H/APP/18/16

& 22 JULY 2016

In the matter between:

NICCI MACKLIN						Applicant

And

QUEST MOTOR CORPORATION (PVT) LTD			Respondent

Before The Honourable Murasi, J

For Applicant			T Chagudumba (Legal Practitioner)

For Respondent		E R Samukange (Legal Practitioner)

MURASI J:

This is an application for condonation of late filing of heads of argument.  It is common cause that at the commencement of litigation between the parties applicant was represented by a trade union representative.  At some stage during the litigation process, the trade union representative decided to engage the services of a legal practitioner.  This firm of legal practitioners was styled Macheyo Law Chambers.  It is also common cause that at a later stage, applicant’s current legal practitioners came on board and represented the applicant.  During this litigation process respondent caused to be served on Macheyo Law Chambers a notice of set down.  This did not get to applicant and on the court date, a default judgment was issued.  In an application for rescission of that default judgment, the respondent made an averment that applicant’s legal practitioners were non-suited to represent the applicant.  The applicant did not file heads of argument timeously in that matter, hence this application.

Mr Chagudumba for the applicant stated that it was a result of the issue raised by respondent’s legal practitioners that applicant’s legal practitioners had found it necessary to investigate the issue before filing the heads of argument.  He submitted that the law firm had since closed down and this information was found at the Law Society of Zimbabwe.  It was further submitted that then issue had been confirmed with one of the legal practitioners who had worked at the law firm.  Mr Chagudumba further stated that the investigations entailed interviewing the trade union representative who had engaged Macheyo Law Chambers.  Mr Chagudumba informed the court that it was intended to call these witnesses to testify in the main application for rescission of judgment.  He argued that the delay in filing the heads of argument was not inordinate.  It was averred that respondent’s legal practitioners were aware that applicant’s current legal practitioners were now representing the applicant.  As far as prospects of success on the main application was concerned, it was argued that the applicant was not in wilful default as the notice to appear was not brought to her attention and to her current legal practitioners.  Mr Chagudumba further argued that the respondent would not be prejudiced if the application for condonation for late filing of heads of argument was granted.

Mr Samukange for the respondent stated that the notice of set down had been served at the address of service.  He further stated that applicant’s current legal practitioners had not filed an Assumption of Agency as required in terms of the Labour Court Rules.  He further submitted that applicant had not filed affidavits from the persons alleged to have confirmed applicant’s averments. It was further argued that the investigations carried out by the applicant’s legal practitioners did not preclude it from filing heads of argument as these were based on issues of law and not dependent on the outcome of the investigations.  Mr Samukange further submitted that there were no prospects of success in the main application as it was fatally defective.

Precedent has dealt with the issue of condonation at length.  In Kondonani v  Muvami HH 81/2007 the following was stated:

“It is trite that there is a certain degree of negligence in failing to observe the rules of the court.  An application for condonation such as the one before me is therefore an application for excusing the negligence of the offending party and the degree of such negligence then becomes a factor together with other factors that will ensure that at the end of the day justice as between the parties prevails.

Condonation should not be granted for the mere asking.  The applicant still has to satisfy the court that there is good cause to excuse the negligence and grant the indulgence.”

It is unfortunate that the applicant has not attached affidavits which show that the persons who gave the information to the applicant’s legal practitioners did in fact do so.  Applicant’s legal practitioners conceded that they should have indeed attached the affidavits but stated that it was their ntention to have the said persons give viva voce evidence in the main application.  Applicant’s legal practitioners also conceded that they did not file an Assumption of Agency as required in terms of the rules.  The question is, has the applicant proferred a reasonable and accepted explanation?  The record shows that indeed the respondent raised, the issue that applicant’s legal practitioners were non-suited to represent the applicant in the Notice of Response.  The record also confirms that at one point, the applicant was represented by a trade union representative who later engaged Macheyo Law Chambers.  Was it not necessary for applicant’s legal practitioners to investigate this issue?  It is my view that applicant’s legal practitioners were entitled to investigate this.  This was also in the light of the fact that applicant’s legal practitioners had represented the applicant which fact was known and acknowledged by respondent’s legal practitioners.

The delay in filing the heads of argument was stated to be about one month.  Can it be said to be inordinate in the circumstances?  Objectively considered, I am of the view that this was not.  Should the applicant be visited with the “sins” of the legal practitioner in not filing the requisite documents in this application?  I think not.  When the applicant became aware of the default judgment, she took steps to have it rescinded.  A point raised by the respondent enjoined an investigation which gave her legal practitioners information which was to have been filed with the application.  This was not done.  It is the oversight of the legal practitioners which led to this situation.  I do not think the justice of the case would require punitive action being taken against the applicant.  In any event, the information is confirmed by respondent’s counsel that indeed the trade union representative engaged Macheyo Law Chambers and that indeed respondent’s legal practitioners had in fact dealt with applicant’s current legal practitioners.  I am of the view that applicant has proferred a reasonable and acceptable explanation.

As to the prospects of success, it is clear that the notice of set down was served on Macheyo Law Chambers.  This was not brought to the attention of both the applicant and her legal practitioners.  Prima facie, in my view, it cannot be said that applicant was in wilful default when she was not aware of the proceedings in question.  There are therefore reasonable prospects of success.

For the afore-stated reasons the court is of the firm view that the application for condonation for late filing of heads of argument should be granted.

The court makes the following order:

The application for condonation for late filing of heads of argument be and is hereby granted.

Applicant’s heads of argument filed of record be and are hereby deemed properly filed.

The Registrar is directed to set down the application for rescission of the default judgment at the next available date.

Each party to bear its own costs.

Atherstone & Cook, applicant’s legal practitioners

Venturas & Samukange, respondent’s legal practitioners