Albert Nyamhuri v Zimbabwe National Road Administration

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/57/2021
HARARE, 26 APRIL, 2021
CASE NO. LC/H/APP/195/20
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/57/2021

HARARE, 26 APRIL, 2021		               CASE NO. LC/H/APP/195/20

AND 4 JUNE, 2021

In the matter between:

ALBERT NYAMHURI							Applicant

Versus

ZIMBABWE NATIONAL ROAD ADMINISTRATION		Respondent

Before The Honourable Kachambwa J;

For Applicant:		C.T. Tinarwo (Legal Practitioners)

For Respondent:		L. Makumbe

KACHAMBWA J:

The Application

This is an application from the bar for upliftment of a bar for failure to file heads of argument in an application for condonation for late noting of an appeal. In other words after failing to meet the time limitations in a court process the applicant applied to be forgiven while processing that application the applicant has failed again to meet the time limitations in the application to be forgiven and now needs to be forgiven again before the original application can be considered or else the applicant cannot be heard.

The application is in terms of rule 26 (2) (b) of the Labour Court Rules 2017 S.I 150 of 2017. It reads;

“(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,--

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

The applicant made an oral application.

Where heads of argument are not lodged on behalf of a litigant the Registrar is nevertheless required to set down the matter “and the court may, according to the nature of the case or as the justice of the case requires-

(i)	enter a default judgment against the defaulting party; or

(ii)	proceed to determine the matter.”

Rule 26 (4).

Therefore even if a party is barred the court will still have to make a decision on the case without the assistance of the barred party!. By barring a party the court would be in a way exposing itself to having to otherwise make sure that the possible arguments for the barred party are taken care of. Therefore the bar should not be lightly considered.

The applicant said that the failure to file the heads of argument in time was due to oversight by the secretariat. He said that it is regrettable but common in the legal fraternity in general. That explanation was said to be reasonable and that the justice of the case called for the court to determine the main matter on merits. The applicant did not produce any affidavit from anyone from the secretariat to support the application.

On the prospects of success in the application for condonation for late noting of appeal the applicant argued that there was prospects of success in that application. The delay was for two weeks. The reasons for delay were that the applicant was out of funds for legal fees and did not have the record of proceedings.

The application was opposed. It was pointed out that the delay was the date the heads were due to the day of the oral application, a whole seven (7) months. It was also pointed out that an oral application is not convenient as it merely holds the court and the other party at ransome – not knowing what would happen. When the papers were prepared they were already out of time and therefore there was no need to blame the secretariat. After the record was made available there was a further delay of a month that needed explanation but was not explained. The respondent further noted that the applicant did not care to address all the issues that arise in an application for condonation. It only looked at two issues. That was said to be improper as all issues must be considered.

As an afterthought, the applicant raised the point that the code of conduct gave the applicant thirty (30) days for noting the appeal as opposed to the 21 days of the Rules of the court, (Rule 19). The applicant admitted though that the Labour Court Rules are the applicable rules but insisted that the court must allow the application in view of the fact that the applicant did not intend to delay the disposal of the matter.

Analysis of the application

This is a cursory application for upliftment of a bar. As pointed out by the respondent the applicant did not bother to deal with all the issues that are considered in applications of this nature. Further no documents were attached to support the application. There is indeed a serious problem that is looming its head in the Labour Court - the problem of parties not being serious on the application of the rules and

seeking to hide behind two concepts that apply in this court. Parties say that labour issues must be decided on merit and not on technicalities. They also say that the Court should not strictly apply the rules and must be guided by the need to allow the parties to be heard so that a decision on merit is made. How wrong in both arguments!.	These concepts are not a license not to follow the rules.

The applicant has not shown any seriousness in the application. It seems as though he took the application as one that is for the taking, a routine application. It overlooks the meriad of complaints by the courts that applications for condonation have become an industry on their own, that they are not convenient. The Labour Court in particular is also becoming more and more concerned by the lackadaisical attitude of lawyers to cases they bring before it. The Labour Court remains a court of rules and these must be followed. Where they have not been followed, a party seeking to be condoned must put up a serious case for condonation. The present case is not such a serious one. It also shows the danger of an application from the bar when one could have made a chamber application that has a better chance of having been properly prepared. An oral application from the bar stands the danger of overlooking some aspects as happened here. The applicant has not given the court an opportunity to make a proper decision, one based on all the issues.

In an application for condonation or upliftment of bar the applicant must address on –

(1) 	the cause of the delay

(2) 	the length of the delay

(3)	the prospects of success of the intended application or appeal.

(4)	the convenience to the court

(5)	the convenience to the parties

(6)	the importance of the case to the parties, jurisprudence and/or the community at large

(7)	the need for finality to litigation

These issues we considered cumulatively. The applicant did not see the need to speak to all of them or even to say why he would leave out some of them. There is a serious lack of seriousness here. The court was shortchanged.

While lack of funds to engage the services of a legal practitioner can be a reason for failure to file court documents in time, this court is not aware of where it has been accepted as an excuse for that failure. Indeed it would be a difficult ground to manage if it were to be accepted. So this excuse for failure to appeal in time does not give good prospects of success in the intended application.

The applicant’s blame of the secretariat is not well found. It needs a supporting affidavit in the first place. Secondly such an excuse in the face of another failure does not speak well of the counsel. Counsel should have been meticulous in order to avoid further transgressions.

The applicant did not make a good case for upliftment of the bar. The application therefore fails. The applicant remains barred and may not be heard. It is accordingly ordered that;

1.	The application for upliftment of the bar be and is hereby dismissed with

costs.

2.	The Registrar shall set the application for condonation for hearing.

Zimudzi & Associates 	-	Applicant’s Legal Practitioners

Dube, Manikai & Hwacha – Respondent’s Legal Practitioners