T. Munyawarara v Agribank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/163/2014
HELD AT HARARE ON 18TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/163/2014

HELD AT HARARE ON 18TH MARCH 2014              CASE NO LC/H/426/2013

& 28 MARCH 2014

Before Honourable L.M. Murasi J.

In the matter between:-

T. MUNYAWARARA						APPELLANT

And

AGRIBANK								RESPONDENT

For Appellant		T. Marimo  (ZIBAWU)

For Respondent             L. Matarura (Legal Practitioner)

MURASI J.,

At the commencement of the proceedings, Respondent’s Counsel informed the Court that he had been engaged the previous day and had thus not been able to file Heads of Argument. The Court indicated that the matter would proceed.

Appellant’s representative submitted that the matter had been set down in terms of Rule 22. Respondent had been served with a Notice to Respond on 13 June 2013. In terms of the Rules, Respondent was supposed to respond within twenty-one (21) days. Respondent only did so on 12 March 2014 when the Notice of set-down had been served. Appellant submitted that as a result of non-compliance Respondent was barred.

Respondent’s Counsel submitted that his instructions were that the Notice to Respond was not filed in time because the Respondent was still seeking legal advice on the matter. The Respondent further urged the Court to show indulgence and allow the Respondent to make submissions on the merits.

It is clear that for the Court to lift the bar the explanation for such non-compliance must be reasonable and reasonableness can only be ascertained from the circumstances of the case. The court is of the view that there is nothing reasonable in the explanation that Respondent took the best part of eight months seeking legal advice on the matter. The Court takes into consideration the nature of Respondent’s business and the case in which it was seeking legal advice. The explanation really boggles the mind and smirks of a dishonest averment bordering on arrogance. It has been held that in cases of flagrant breaches of the Rules, especially where there is no acceptable explanation, the court is entitled to withhold its indulgence whatever the merits of the case may be.

For the above reasons, the Court finds that Respondent has failed to show good cause why it did not file a response within the period prescribed by the Rules. In the result, the Court enters a default judgment in terms of Rule 22 (b) (i) of the Labour Court Rules.

Accordingly it is ordered that:

The decision of the NEC Appeals Board for the Banking Undertaking dated 10 April 2013 dismissing Appellant be and is hereby set aside.

There be no order as to costs.

Dondo &Partners, respondent’s legal practitioners