Steven Office v Sakunda Logistics (Pvt) Ltd

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/116/23
CASE NO LC/H/APP/607/19
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IN THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO LC/H/116/23

CASE NO LC/H/APP/607/19

HELD AT HARARE 2ND APRIL 2023

AND…

In the matter between

STEVEN OFFICE					APPLICANT

And

SAKUNDA LOGISTICS (PVT)LTD			RESPONDENT

BEFORE HONOURABLE MAKAMURE  J

For the Applicant	: Advocate R. Goba

For the Respondent  : Ms M. Gwaunza (Legal Practitioner)

MAKAMURE J:

Introduction

This is an application for condonation of late filing of Heads of Argument. It is opposed.

Background

This matter has been going for quite a while. This is regrettable not only because this is  contrary to  the purpose of the Labour Act Chapter 28:01 (The Act) but because it is a’ bread and butter’ issue which by its very nature is urgent. The protracted manner in which it is being prosecuted is contrary to the policy of finality to litigation. What is disappointing is that the parties are legally represented. Unfortunately, the impression one gets is that there appears to be a tendency in some legal practitioners to take the Labour Court for granted and disregard the Rules. Legal practitioners are officers of this Court and are expected to assist the Court by observing its rules  instead of adopting an attitude of laxity.

The applicant obtained a judgment in his favour ordering his reinstatement with an alternative for an award should reinstatement be not possible. He was not reinstated. To cut a long story short, since obtaining judgment ,quantification of damages has not happened. The matter was finally set down to be heard  7th October  2021.On that date counsel for the respondent appeared but there was no appearance on behalf of the applicant. A default judgment dismissing the application was granted. An application for rescission of that judgment was made. On 5th October 2022 the court handed down a judgment rescinding that judgment. This means that the stage was now set for the application for quantification to be heard.

On 9th February 2023 the matter was supposed to be heard but the applicant’s legal practitioners of record had not filed their heads of argument as required by Rule 26 of the Rules of this Court , Statutory Instrument 150/2017 (the Rules). The applicant’s legal practitioners were and are alive to this. They, on 6th  February 2023, wrote to the respondent’s legal practitioners  a letter as follows:

‘We refer to the above matter .

Please take  note that on the date of the hearing Advocate R.H. Goba intends to make    oral applications for the following

Admission of the Supplementary answering affidavit.

Condonation of late filing of heads of argument

Upliftment of the bar.

Kindly advise us in writing whether you will be opposed to the applications and grounds for such opposition.’

The respondent’s legal practitioners of record responded as follows:

‘ We refer to the above and to your letter received by us on the 7th instant.

You have requested that we advise in writing whether the application you intend to      make will be opposed and grounds for such opposition. Regrettably, you do this where your client has not given the grounds upon which the indulgences are sought. Surely, your client has the onus to prove and should have provided the grounds as opposed to requiring our client to do so . The applications will be opposed.’

Rule 26 of the Rules of this Court provides for filing of heads of argument as follows:

‘26. Heads of argument

(1) Where an applicant or appellant is to be represented by a legal practitioner or 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.

(2) No legal practitioner or representative shall be allowed to make submissions in a matter without having filed heads of argument:

Provided that a party who has been barred may—

(a) make a chamber application to remove the bar, and the Judge or Court may allow the

application on such terms as to costs and otherwise as he or she thinks fit; or

(b) make an oral application to remove the bar at the hearing of the application or ..,’

Rule 26 provides that within ten (10) days of receipt of the notice of response from the respondent, the applicant files heads of argument. In the present  case the notice of response was served on the applicant’s legal practitioners on 14 November 2019. In terms of R26 therefore, the heads of argument ought to have been filed within ten days from 14 November 2019. Heads of Argument on behalf of the applicant were then  filed on the 6th of August 2020. This was some eight months later. There was no application for condonation made on behalf of the applicant. The Heads of Argument on behalf of the respondent were filed on the 24th of August 2020. In those heads the respondent raised three preliminary issues. One of the preliminary issues raised was that the applicant’s  heads of argument were filed out of time and therefore the applicant was barred. Despite that warning nothing seems to have been done by  the applicant’s legal practitioners . It was only on 6 February 2023,some three (3) days before the date of hearing , that is the 9th of February 2023, that the applicant’s legal practitioners wrote to the respondent’s  legal practitioners as shown earlier, in connection with the intention to make an application for condonation on the  date of hearing, that is on the 9th of February 2023 .

On the 9th  of February 2023, parties appeared. After a rather long address under the circumstances of this case, the applicant’s legal practitioners sought and were granted leave to make an oral application for condonation as provided for in R26 (2)(b).

The Application for Condonation

It is trite that in order for an application for condonation to succeed, the applicant should show :

That the delay was not inordinate having regard to the circumstances of the case:

That there is a reasonable explanation for the delay;

That the prospects of the applicant to succeed should the application be granted are good;

That consideration is had to the possible prejudice to the other party should the application be granted. Stephen Kutiwa v ZIMPOST SC 85/05.

See also Director of Civil Aviation v Hall 1990 (2) ZLR 354 @357 E to G; Tshova  Mubaiwa Transport Cooperative Limited & 4 Others v Josphat Mpofu & 4 Others HB 167/04.

The applicant, Mr Office was called to the witness stand and took the oath. His evidence was to the effect that he used to work for the respondent. He has a medical condition which from the year 2017 , has affected his mobility. In 2019 he went to live in Guruve where one of his children works.(Guruve is a rural area outside Harare).He returned to Harare in the year 2020.Whilst in Gururve  he was not readily available on his mobile ‘phone due to poor network. When asked about the progress or lack of it in the present matter he indicated that he did not know. Under cross examination, Mr Office told the Court that he did not know what difference his presence would make in the filing of heads of argument. In any event , he stated further, his legal practitioners would contact him whenever they had documents to file. Further Mr Office told the Court that he had no idea why papers were filed late. He did not even know that any documents needed to be filed.

It was on the basis of Mr Office’s evidence that the application for condonation of late filing of heads of argument and upliftment of the bar operating against him were made. Mr Goba’s argument was that in view of the absence of instructions from client the legal practitioners could not file any papers. Mr Goba urged the Court to use its powers in terms of provisions of both the Act and R32 to grant condonation and upliftment of the bar. He submitted that the delay was not inordinate. As for prospects, Mr Goba submitted that there is an extant judgment of the court which is in favour of the applicant. Further, Mr Goba submitted, there was no prejudice to the respondent. He also submitted that the respondent ought not have opposed the application.

In response Ms Gwaunza confirmed the duty of a legal practitioner to act on the instructions of the client,Ms Gwaunza went on to argue that where a client was uncooperative there was the option of renouncing agency. This would have worked in favour of the applicant since an unrepresented litigant is not required by the rules to file heads of argument. Further, it was argued on behalf of the respondent that for the period that Mr Office was in the rural areas his lawyers did not contact  him but the nature of the relationship between him and his lawyers was that whenever there were papers to sign they would call him. Further still,the applicant was candid with the court by stating  that his absence would not make any difference to the filing of the heads of argument. It was submitted that heads of argument summarized law and facts  and the testimony of the applicant was that his presence was not necessary. Ms Gwaunza pointed out that the applicant never instructed his legal practitioners not to file papers in his absence. Ms Gwaunza submitted that under the circumstances the applicant’s lawyers could have filed the heads of argument even in the absence of the applicant.

After assessing the testimony of Mr Office, Ms Gwaunza submitted that the applicant’s absence from Harare was not a good enough reason for the failure to comply with the rules. Since legal practitioners are an “extension” of the applicant, Ms Gwaunza submitted, he cannot distance himself from their conduct. The Court was referred to the case of Saloojee & Another v Minister  of Community Development 1965(2)SA 135 @138H  which was quoted with approval in the case of Treviglo Services trading as Tada  Teak and Iron v Emmerson Gwatidzo HH 272/2014 to support the submission that a litigant cannot escape the actions of his or her legal practitioner.

In view of the evidence led it was submitted on behalf of the respondent that there was an attempt to separate the applicant from his legal practitioners but that this was not sufficient. In the result Ms Gwaunza submitted that a case for condonation for late filing heads of argument and upliftment of bar had not been and as such the application should be dismissed. Further the applicant’s legal practitioners were aware of the need to apply for condonation since 4 August 2020.

In reply Mr Goba referred the Court to the provisions of  s69 of the Constitution of Zimbabwe, 2013 and also to the Rules of this Court. Mr Goba urged the Court to depart from the Rules in order to achieve justice , fairness and equity.

This Court is indeed a court of equity. It is also a creature of statute. The Court should operate as equitably as possible. The  Court has also got rules. Without rules of procedure it would be difficult to operate. Thus,  provisions of both the Rules and the Act must be complied with in the exercise of equity. ZIMBABWE PLATINUM MINES (PRIVATE ) LIMITED v MARKO PHUTI SC21/2016. Further it is ideal  that cases be determined by this Court  in as simple a manner as possible without  unnecessarily dwelling too much on technicalities. S89 of the Act . See EDMORE MAPONDERA AND 55 OTHERS v FREDA REBECCA GOLD MINE HOLDINGS LIMITED SC81/22.What this means  is that when the Court is determining cases it is bound by the rules. Those same rules bind the litigants. It would be remiss of the Court to adopt an attitude that because this is a court of equity and the rules also provide for departure, parties are entitled to disregard the rules and simply rely on provisions of the Constitution , the Act and Rules which provide for departure. Such an course is a recipe for chaos. I say so because parties would simply come and demand a fair hearing as provided for in s69 of the Constitution and suggest that this Court is not bound by strict rules of evidence . Each court or judge hearing a matter would consider what they viewed as equity and forget about the rest of the rules and the timelines set in those rules.  It is this possible chaos which is being avoided by ensuring that statutory provisions guiding the operations of this Court are observed. Parties are obliged to adhere to provisions of the Act . It is only in deserving cases that they should ask the Court to depart from its own rules.

In the present case, the applicant entrusted his legal practitioners to do what was required. Heads of argument should have been in 2019.The applicant , whether he was in Harare or in the rural areas ,would not have filed the heads. There is no indication from the legal practitioners that while he was in Guruve they tried to contact him and that he was either not reachable or uncooperative. If they had they had done so they were supposed to advise the other party and the Registrar . There is nothing like that  on record. The applicant’s legal practitioners simply did nothing. Now they are trying to lay blame on the absence of their client from Harare. That did not help because the applicant had left everything in their hands.

The applicant was dragged to Court. Indeed, his evidence was necessary if it was going to show the basis of the non-compliance. However ,it was as if the legal practitioners were bent on parading the poor man’s illness rather than explain the requirements to be met in an application for condonation. In my view the applicant’s ill health has got completely nothing to do with his legal practitioners’ failure to comply with the Rules. What is unfortunate though is that his legal practitioners of record are his agents. They have not given a reasonable explanation for the delay and the extent thereof. In Prosper Ganda & Thirteen Others v First Mutual Life Assurance Society  SC 1/05 the Supreme Court stated  as follows:

‘In addition, it is pertinent to note that it has been stated in a number of cases that a person seeking condonation of the late noting of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation.   Thus, in Saloojee and Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138H STEYN  CJ said:

“What calls for some acceptable explanation is not only the delay in noting an appeal and in lodging the record timeously, but also the delay in seeking condonation.   As indicated, inter alia, in Commissioner for Inland Revenue v H.D. Combrinck (Edms) Bpk 1961 (1) SA 262 (A)] at p 264, an appellant should, whenever he realises that he has not complied with a Rule of Court, Burger 1956 (4) SA 446 (A) at p 449, and in Meintjies’ case supra [Meintjies v apply for condonation without delay.”

…

However, even if it were accepted that the failure to note the appeal to the Tribunal timeously and the delay in seeking condonation of the late noting of the appeal were due to the fault of their legal practitioner, that would not assist the appellants.   As I stated in Maswaure v Nyamunda 2001 (1) ZLR 405 (S) at 409 E-G:

“Even if the delay in applying for condonation were due to the fault or negligence of the appellant’s legal practitioners, the appellant would not escape the consequences of their lack of diligence.   As STEYN  CJ said in the Saloojee case supra  at 141 B-E:

‘I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney.   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 Court.   Considerations ad misericordiam should not be allowed to become an invitation to laxity.   In fact, this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney.   The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.’”’

…

In the circumstances, I am satisfied that the appellants did not give any reasonable explanation…’

The laxity exhibited in the present application is unacceptable. The Constitution , the Act and the Rules of this Court do not invite parties to disregard the rules. The aim of the statutory provisions is to ensure expeditious resolution of labour related disputes . If laxity in compliance with the statutory provisions is allowed,  certainty  will be compromised. This may also result in abuse of the court. That is undesirable and must be strongly discouraged.

In Gazi v National Railways of Zimbabwe SC60/15 the Supreme Court stated that:

‘Firstly, labour matters are civil in nature and while the same standards of procedural stringency as are required in ordinary civil matters may not always apply, I do not believe those standards are necessarily ousted merely on the basis that the matter at hand is a labour dispute.

..

It is in my view necessary in this respect to remind parties in labour disputes that it is important to show respect for laid down formalities in the adjudication of disputes that concern them.  Showing disdain for such formalities and later expecting the court to turn a blind eye to such conduct, in my view smacks of double standards and a lack of seriousness on the part of the litigant concerned.’

After considering the evidence and the submissions,  no reasonable explanation has been  proffered for the delay. Further considering that the applicant’s legal practitioners were aware since August 2020, of their obligation to apply for condonation , the delay  under the circumstances is inordinate. The applicant’s legal practitioners showed disdain for the rules of this court.Taking the requirements cumulatively , the probabilities favour  dismissal of the application.

Accordingly it is ordered that :

The application for condonation for late filing of heads of argument and uplifting of bar operating against the applicant be and is hereby dismissed.

C MPAME & ASSOCIATES, APPLICANT’S LEGAL PRACTITIONERS.

GWAUNZA & MAPOTA, RESPONDENT’S LEGAL PRACTITIONERS.