Success Motivation Institute of Zimbabwe v Jinala Balasani

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/222/16
HELD AT HARARE 21 MARCH 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/222/16

HELD AT HARARE 21 MARCH 2016				CASE NO LC/H/1012/15

& 22 APRIL 2016

In the matter between:

SUCCESS MOTIVATION INSTITUTE OF ZIMBABWE		Appellant

And

JINALA BALASANI						Respondent

Before The Honourable F C Maxwell, Judge

For Appellant			Mr M C Mukome (Legal Practitioner)

For Respondent		Mr B Magogo (Legal Practitioner)

MAXWELL, J:

At the hearing of this matter I denied respondent the indulgence to file a notice of response belatedly.  The matter proceeded in terms of Rule 22 (b) (i).   The appeal was granted and the arbitral award was set aside.  The following are the reasons for that decision.

On 10 November 2015 appellant noted an appeal in this court against an arbitral award.  On 12 November 2015 at 13.25 hours the respondent received a notice by the Registrar inviting him to file a notice of response to the appeal.  Page 6 of the record indicates that respondent was served personally and he signed in acknowledgement of receipt.  No notice of response was filed.  The matter was set down for hearing on 21 March 2016 in terms of Rule 22.  On 17 March 2016 Messrs Makuwaza & Magogo Attorneys wrote to the appellant’s legal practitioner pointing out the following

they had assumed agency after receiving instructions late on 16 March 2016.

they had received instructions to appear on the day and make an application for condonation or alternatively to show good cause why respondent did not file the Notice of Response.

an affidavit from honourable L Gabilo of Early Heads Consultancy .  Respondent’s erstwhile representative would form the basis of the application.

they wanted to know the attitude of the applicant towards the intended application.

The letter had attached to it the affidavit of Lawrence Gabilo and was copied to the

Registrar.  At the hearing of the matter counsel for respondent made an application for the court to extend an indulgence to respondent and allow him to file a notice of response and subsequently heads of argument.  The basis of the application was that courts are disinclined to punish litigants for the indiscretion of legal practitioners and that there were prospects of success for the respondent.  He went on to highlight the arguments in support of the respondent’s position in the main matter.

The court noted that respondent’s erstwhile representative is an arbitrator.  It also noted that in his address, counsel for respondent had not highlighted the reason stated in the affidavit for failure to file the notice of response.  Mr Gabilo stated the reason in the following terms

“I was unable to file response on appeal on time because my client was away and could not give me instructions bearing in mind that he would be represented by someone else due to lack of jurisdiction on my part to appear in the labour Court.”

Counsel for respondent indicated that the reason given was not accurate as the omission was due to an oversight on the part of the consultant.  In his address counsel for respondent seemed to suggest that the consultant may not have understood that even though he has no right of audience before this court, he could however assist respondent in filing the required documents.  That submission is not supported by the affidavit as it clearly acknowledges that the consultant would file a response and someone else would appear to argue the matter.

Counsel for appellant stated that the application was not made on notice to him therefore he had no instructions from his client.  Counsel had appeared without any representative from the appellant.  Counsel for appellant stated further that prior to the hearing an agreement had been reached that counsel for respondent would seek a postponement and subsequently file a formal application for condonation.  Counsel was therefore opposed to the application and urged the court to proceed in terms of Rule 22.

Counsel for respondent confirmed the agreement that had been reached prior to the hearing.  The reason for departure from the agreement was given as the fact that counsel for appellant’s response was not in line with the request that had been made.  In his understanding, the rules allowed a litigant in respondent’s position to appear before the court for one reason only, that is, to show good cause why the notice of response was not filed.  In my view, his submission was to the effect that an application for condonation was not necessary in the circumstances.

I find counsel for respondent’s attitude quite surprising.  He seems to have taken a very casual approach to this matter.  He should have exploited the courtesy that had been extended by counsel for appellant and applied for a postponement in order to file a written application for condonation of late filing of a notice of response.

In the circumstances of this case, what called for condonation was not only the late filing of the notice of response but also the delay in seeking condonation.  See Highline Motor Spares & Hardware (1993) (Pvt) Ltd and Others v Zimbank SC 37/02.  This is so because respondent was personally served with the notice by the Registrar.  It must have been him who delivered the notice to the consultant.  It is not clear why instructions were not given when the respondent met the consultant.  What is before the court is the consultant’s statement that respondent had been away and could not give instructions which statement was discredited by counsel for respondent.  There is no indication of when respondent met the consultant.  The notice by the Registrar was served on respondent on 12 November 2015.  The consultant’s affidavit is dated 16 March 2016.  There is no explanation of what was happening between 12 November 2015 and 16 March 2016.  An indulgence may be granted at the discretion of the court.  It is not a right obtainable on demand.  The litigant seeking an indulgence must satisfy the court that there are compelling circumstances which would justify a finding in his favour.  To that end, it is imperative that he be candid and honest with the court.  See Paul Gary Friendship v Cargo Carriers Ltd & Another SC 1/13.

I am not persuaded that a basis has been laid for me to exercise my discretion in respondent’s favour.  He has not been candid and honest with the court.  There are facts and issues which should have been sworn to in order to assist the court to exercise its discretion in an informed manner.

Even though counsel for respondent addressed the court on the prospects of success, I find it not necessary to consider them.  It has been held that in cases of flagrant breach of the rules, especially where there is no acceptable explanation therefore, an indulgence may be refused whatever the merits of the matter are.  See Bishop Elson Madoda Jakazi & Another v Central Africa and Others SC 10/13.  Tshivhase Royal Council & Another v Tshivhase & Another 1992 (4) SA 852.

It is for the above reasons that respondent was denied the indulgence to file the notice of response out of time.

M C Mukome Legal Practitioners, appellant’s legal practitioners

Makuwaza & Magogo Attorneys, respondent’s legal practitioners