Winfred Madende v Environmental Management Agency

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/184/21
HARARE 14TH OCTOBER, 2021
LC/H/23/21
AND 22ND OCTOBER, 2021
Judgment No. LC/H/184/21
Case No. LC/H/23/21
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IN THE LABOUR COURT OF ZIMBABWE			LC/H/184/21

HARARE 14TH OCTOBER, 2021					LC/H/23/21

AND 22ND OCTOBER, 2021

In the matter between:-

WINFRED MADENDE  						      Appellant

AND

ENVIRONMENTAL MANAGEMENT AGENCY			      Respondent

Before The Honourable Makamure, J.

For the Appellant		:	Mr. M. Sibanda (Trade Unionist)

For the Respondent	:	Ms. P. Mathuthu (Legal Practitioner)

MAKAMURE J.

This is an application where parties consented to have the matter struck off the roll.  This is being asked because the record is not properly done.  The record which is before the court is paginated differently from the record which the appellant has.  This makes the hearing very cumbersome as some documents also appear to be missing or mixed up.  This means that the matter cannot be heard in view of the status of the record of proceedings. However the respondent has asked for costs on the higher scale which application the appellant opposes.

Respondent argued that costs on a higher scale should be ordered in order to deter unnecessary litigation.  In support of the application for costs on the punitive scale the respondent referred the court to the case of MIDLANDS STATE UNIVERSITY VS ALOIS MATONGO HH 390/18.  Ms Mathuthu who appeared on behalf of the respondent submitted that the court should show its displeasure at being taken for granted.  The respondent argued that the appellant should have exercised due diligence in preparing the record of proceedings and avoid wasting time of the Court.

In response the appellant argued in opposition that the duty to paginate and prepare a record falls squarely on the shoulders of both parties.  Further the appellant referred to the record which the respondent had.  That record is actually made up of the papers which parties exchanged between themselves.  Such papers argued the appellant, cannot be used as a court record.  In the result Mr. Sibanda who appeared on behalf of the appellant, submitted that the application for costs, be it on the higher or ordinary scale, is totally opposed.

After listening to the parties the court finds as follows.  It is the primary duty of the parties to ensure that there is a proper record before the court.  The appellant as the prosecutor of the case obviously should ensure that the record of proceedings is properly compiled.  However the duty to paginate the record falls on both parties.  Further, it turned out that the respondent actually had no copy of the record of proceedings in its current state at all.  This means that the respondent too, was to blame.  Had the respondent’s record been paginated the Court would have taken a different view.  Rule 21 (1) of the Rules of this Court Statutory Instrument 150/17 provides that:

“21(1) It shall be the duty of the parties or litigants to prepare the record of proceedings by indexing, paginating and binding.”  [My emphasis].

It is incumbent upon the litigants to ensure that before a matter is set down for trial or hearing, the parties comply with provisions of Rule 21.  Their failure to do so will obviously result in delays in the finality to litigation.  This is undesirable and is not consistent with the provisions of both the Constitution and the Labour Act (Chapter 28:01).  This may also be interpreted as lack of seriousness with litigation.  This may cause a Judge or Court to make an appropriate order to ensure finality to litigation.

In A. ADAM AND COMPANY AND TWO OTHERS VS GOOD LIVING REAL ESTATE (PRIVATE) LIMITED SC 50/21 the Supreme Court stated that:

“Whilst costs are entirely within the discretion of the Court, an order for costs must be substantiated by reasons.  In MAHEMBE V MATAMBO 2003 (1) ZLR 148 (H) at 150 C-D, the court laid out the circumstances which justify the granting of an award of costs on an attorney and client scale in the following words:

…’the courts only award such costs in situations where it is clear that the losing litigant was not genuine in the pursuance of a stand in the litigation process.  RUBIN LAW OF COSTS IN SOUTH AFRICA JUTA & CO. (1949) 190, classified the grounds upon which would the court be justified in awarding the costs as between attorney and client:

Dishonest conduct either in the transaction giving rise to the proceedings or in the proceedings.

Malicious conduct.

Vexatious proceedings.

Reckless proceedings.

Frivolous proceedings.’

Therefore, an award of punitive costs is granted in exceptional circumstances against a party whose conduct is not bona fide and warrants censure”

In the present matter, both parties have contributed to the failure of the matter from being heard.  Therefore both require censure as they are equally to blame.  An order for costs on the higher scale against only one of the parties would in the circumstances be unfair.  In the result the application for costs on the higher scale cannot succeed.  For today’s sitting, costs will be costs in the cause.

In view of the foregoing a case for costs on the punitive scale has not been proved and is accordingly declined.

The following order is made:

The matter be and is hereby struck off the roll.

Costs be costs in the cause.

DUBE, MANIKAI & HWACHA – Respondent’s legal practitioners