W.K. Dzimbiri and 9 Others v Haggie Rand

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/464/13
HELD AT HARARE ON 19TH SEPTEMBER, 2013
CASE NO. LC/H/221/10
AND 27TH SEPTEMBER, 2013
JUDGMENT NO.LC/H/464/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO.LC/H/464/13

HELD AT HARARE ON 19TH SEPTEMBER, 2013	  CASE NO. LC/H/221/10

AND 27TH SEPTEMBER, 2013

In the matter between:-

W.K. DZIMBIRI AND 9 OTHERS		-		Applicant

And

HAGGIE RAND						-		Respondent

Before 	The Honourable G. Mhuri, Judge

The Honourable E. Kabasa, Judge

For Applicant	: 	Ms R I Mutindindi (Legal Practitioner)

For Respondent:	Mr A Muchandiona (Legal Practitioner)

MHURI J:

This is an application for condonation of late filing of an application for leave to appeal to the Supreme Court against this Court’s judgment of the 6th May, 2011.

Rules of the Court are meant to be followed, otherwise the very point of having such Rules is defeated.  Where one fails to follow the Rules, there must be good cause for it.  The Court cannot claim to have Rules that govern its operations and not be concerned when the same Rules are flouted.  It is therefore incumbent upon the party who has flouted the Rules to explain why, thereby clothing their application for condonation.

In this case judgment was handed down on 6th May, 2011 and applicants’ erstwhile representatives filed their application for leave to appeal on 3 June, 2011, timeous in the circumstances. For reasons Respondents did not explain the representatives renounced agency and withdrew the application on 17th June, 2011.  Applicants’ legal practitioners were made aware of this but took a whole month to assume agency, 28 July, 2011 and subsequently filed the application for leave on the same day.  The application was already out of time as it ought to have been filed by 20th June 2011.  No explanation is proferred for the lack of diligence.

As if this was not enough, the application was not accompanied by an application for condonation.  Surely they knew they were out of time, why then not do the proper thing and apply for condonation.  The fact that it was only out of time by a month does not make it within time.  Condonation is an acceptance that I did not do what I was supposed to do within the stipulated time, whether it is out by 5, 10 or 15 days is not the point.

Not only was assumption of agency done a month later but the subsequent application was then done without efforts to cure the malady it also was afflicted with.  Is this the conduct of a party desirous to prosecute their appeal?  I think not.

From 28th July, 2011 up to 7th June, 2013 Applicants say they had cited a wrong number, it is worth noting that there is nothing to show what they were doing to follow up on this case except an explanation that dispatch clerks were following up.  After being advised on 7th June, 2013 that they had cited a wrong number again they waited until 16th July, 2013, another month, to then file yet another application.  The reason for the delay is again not explained and these are people who were “pursuing” their desire to appeal?

The explanation that because the Registrar received the application they took it that the Court had accepted it is devoid of proper reasoning.  The application was out of time and they did not need the Registrar to tell them that.  These are not self actors; the legal practitioner knew and should have done what was expected of a diligent legal practitioner.

The long and short of it is that this matter is now coming before the Court with an application filed almost 2 years after the judgment being appealed against was handed down.  If this delay is not inordinate then I do not know what is.  Indeed there should be finality to litigation and condoning such lack of diligence flies in the face of this adage.

To that end we find that the applicants have failed to pass the first hurdle.  This then renders it unnecessary for us to consider in detail the submissions on the prospects of success.  Suffice it to say the Applicants have no bright prospects of success at all, for example the issue of selective punishment, that issue was decisively decided by the Supreme Court in Lancashire Steel (Pvt) Ltd V E. Zvidzai and Others SC 29/1999 and this position still stands.  Consequently the application for condonation is hereby dismissed, with costs.

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G. MHURI

JUDGE

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E. KABASA

JUDGE

Matsikidze and Mucheche – Appellant’s Legal Practitioner

Muchandiona, Danziger and Partners – Respondent’s Legal Practitioners