Sebastian Chishiri v National Railways of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/107/2021
HARARE, 29 MARCH 2021
CASE NO. LC/H/APP/605/18
AND 30 JULY 2021
XREF LC/H/APP/560/15
XREF LC/H/APP/560/15
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/107/2021

HARARE, 29 MARCH 2021 				CASE NO. LC/H/APP/605/18

AND 30 JULY 2021						XREF LC/H/APP/560/15

In the matter between:

SEBASTIAN CHISHIRI						APPLICANT

versus

NATIONAL RAILWAYS OF ZIMBABWE			RESPONDENT

Before The Honourable Makamure J

For the Applicant			Mr T. P. Jonasi (Legal Practitioner)

For the Respondent			Mr T. Goro (Legal Practitioner)

MAKAMURE J:

This is an application for reinstatement of an application for quantification of damages. Preliminary issues were raised on behalf of the respondent before the main application could be argued.

BACKGROUND

This matter dates back to 17 November 2010. That is when an order for the reinstatement with an alternative for an award of the appropriate damages should reinstatement fail, was made in favour of the applicant. The applicant was legally represented. On 25 March 2015 the application for quantification of demages was set down for hearing before the court. The matter was struck off the roll as he (the applicant) was barred in terms of Rule 19 (3) (b) of the then Rules. The applicant had thirty (30) days within which to correct his papers or take the appropriate action. He did not.

On 2 August 2017 he made an application for rescission of judgment before this court. That application was withdrawn on his behalf by his lawyer. What this means is that the applicant remained barred from the court in terms of the court order of 25 March 2015. Accepting that he has always been desirous of prosecuting his matter, he should at least, have, within thirty days after the withdrawal of the application for rescission of judgment taken the appropriate action. That did not happen. One of the authorities cited by Mr Goro for the respondent is Bindura Municipality v Mugogo SC 13/15. In the Bindura Municipality case, the Supreme Court stated that:

“Thus a litigant who wished to pursue his matter was granted a limited time within which to apply to cure the defect failing which the matter would be deemed abandoned.”

Preliminary Issues

The respondent raises two points in limine, that is, firstly since the application for reinstatement of quantification was not preceded by an application for condonation to file the application out of time, the matter is not properly before the court. Secondly it has been raised on behalf of the respondent that the relief sought is inappropriate.

The applicant in his draft seeks the following relief:

“1.	The application for quantification of damages in case number LC/H/306/10 be and is hereby reinstated.

2.	Applicant shall file Heads of Argument within ten (10) days from granting of this order.

3.	There be no order as to costs”

The application is for the reinstatement of the matter so that the issue of quantification of damages can be dealt with. That is an entire application on its own.This is so in the present matter because there is an issue regarding the heads of arguments.This issue was not resolved after the matter was struck off the roll on 25 March 2015.In the draft order , the applicant  seeks an order that Heads of Argument be filed within a specified period. The question of filing of Heads of Argument is governed by 26 of the Rules of this Court S.I. 150.2017.

Rule 26 provides that:

“(i)	Where an applicant or appellant is to be represented by a legal practitioner or legal representative at the hearing of the application, appeal, or review, the legal practitioner or representative shall –

(a)	within ten 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.”

So the application for reinstatement has to be dealt with first. Thereafter the question of when the heads of argument can be filed will be considered.

Where a legal practitioner is appearing, they must file heads of argument in terms of Rule 26 (then Rule 19). A party who fails to comply with this rule is barred. This means that they have to apply for upliftment of the bar operating against them. In terms of the Court Order of 25 March 2015 the applicant is barred. What this means is that the fact that a matter has been reinstated, does not necessarily mean that if there is a bar operating against the bar has been lifted. The bar has to be dealt with first. If the bar has not been lifted, the issue of filing heads of argument cannot be considered. Mr Goro submitted that in the absence of there having been an application to lift the bar or rather an order of court showing that the bar operating against the applicant has been uplifted, the relief sought is improperly before the court. It was for these reasons that Mr Goro submitted that the application be dismissed.

In response Mr Jonasi, who appeared for the applicant did not seek to contradict the preliminary issues raised. Mr Jonasi emphasized the need to do justice for the applicant.  Mr Jonasi argued that the applicant was at some point in time a self-actor.  However, when the other applications were made he was legally represented. Mr Jonasi conceded that there were many errors which occurred due to the legal practitioners doing things wrong. Mr Jonasi urged the court not to have the ‘sins of the legal practitioners visit’ the applicant.  In Jaison Machaya v Lameck Nkiwane Muyambi SC 4/05 the Supreme Court quoted with approval from Saloojee & Anor, NNO v Minister of Community Development 1965 (2) SA 135 @ 141 C – E that:

“There is a limit beyond which a litigant cannot escape the results of his Attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this count … A litigant … is not entitled to handover the matter to his attorney and then wash his hands of it … If, as here, the stage is reached where it must be obvious also to a layman that there is protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his lawyer.”

Mr Jonasi submitted that this court has already granted judgment in favour of the applicant. This means that applicant has a strong case since he is seeking to enforce a judgment of this court.

It is trite that Rules of court must be observed. The Rules themselves are testimony of how the court proceedings should be conducted. There is therefore need by litigants to follow the Rules. Failure to follow the Rules means that a litigant is simply not properly before the court. In Zimbabwe Platinum Mines (Private) Limited v Marko Phuti

SC 21/2016 the Supreme Court stated that:

“It is trite that the Labour Court is entitled to dispense equity in its duty to do substantial justice between the parties. However, it cannot do so outside the confines of the Law.”

In the present case the appellant’s legal practitioners ought to have been alive to what should happen after a matter has been struck of the roll. Not only are the rules there but there is also a practice direction guiding parties to ensure that justice between the parties is achieved. It is true to say that this court is a court of equity. A party cannot simply appear before this court and expect to succeed on the basis that this court is a court of equity and ignore the rules.Rules of the Court must be observed.Ignoring them will lead to chaos.There is no need to have rules in the first place if such rules are ignored and litigants hide behind equity.

Legal Practitioners should therefore not abuse the equitable jurisdiction of the court and ignore the rules of this court.  That cannot be condoned. Further a diligent litigant is expected to follow up their case (See Copper Kings (Private) Limited v Dumisani Msindazi SC 52/17).

Legal practitioners are officers of the court. They have a duty to perform their duties properly with diligence. Mr Goro in his heads of argument cited the case of Machaya v Muyambi (above) where the Supreme Court held that failure to follow rules would have a disastrous effect to the observance of Court Rules. I respectfully associate myself with the above remarks.

Having said that, it is common cause that the application is not properly before the court. Further, the relief sought in paragraph (2) of the draft order is inappropriate. In view of the foregoing there is merit in both preliminary issues.

It is also trite that there is need for finality to litigation. In Ndebele v Ncube 1992 (1) ZLR 288 (S) the Supreme Court held that:

“It is the policy of law that there should be finality to litigation.”

In the present matter the judgment was handed down in 2010. Close to ten years later, the matter has still not been finalized.Not only has it not been finalized, but an application which has been brought before the Court is not properly before it.This is not the first time that this has happened. This militates against the principle enunciated in the Ndebele v Ncube case (above) . I am not sure whether the equitable jurisdiction of this court should be stretched to the extent submitted by Mr Goro. See also Stephen Kutiwa v ZIMPOST SC SC85/05.

Accordingly, it is ordered that the preliminary issues raised on behalf of the respondent be and are hereby upheld.

The application for reinstatement of an application for quantification of damages be and is hereby dismissed with costs.

Messrs Hamunakwandi & Nyandoro Law Chambers, Applicant’s Legal Practitioners

Mbizo Muchadehama & Makoni, Respondent’s Legal Practitioners