Bianca Zengeya v Peter House Group of Schools

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT. NO
HELD AT HARARE
LC/H/401/25 CASE NO.
LC/H/771/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

JUDGMENT. NO LC/H/401/25 CASE NO.	LC/H/771/25

20 OCTOBER 2025 & 22 OCTOBER 2025

BIANCA ZENGEYA	APPLICANT

AND

PETER HOUSE GROUP OF SCHOOLS	RESPONDENT

Before the Honourable Justice Tsikwa

For Applicant: M. S Nyanoka (Legal Practitioner) For Respondent: B.S Ziwa (Legal Practitioner)

TSIKWA J: This is a chamber application for condonation for late filing of heads of argument and reinstatement of the matter in terms of Rule 36 of the Labour Court Rules, 2017.

FACTUAL BACKGROUND

The applicant was employed by the respondent as a teacher. During the course of employment, she was charged with abuse and related offences in terms of Section 6.3.2 of the Peter House Group of Schools Code of Conduct. A disciplinary hearing was held on 14 September 2023, she was convicted and subsequently dismissed from employment.

The applicant appealed internally against that decision but the appeal was dismissed. She took the matter to Ministry of Labour for conciliation but the parties could not find each other. The dispute was then referred for compulsory arbitration. The arbitrator ruled in favour of the applicant and ordered her reinstatement without loss of salary and benefits. The respondent was not happy with the award and filed an appeal against that decision under case number LCH117/25. Applicant failed to appear on 7 July 2025 and a default judgment was entered.

On 14 July 2025 the applicant filed an application for rescission of judgment and upliftment of bar under case number LCH626/25. The applicant then filed an answering affidavit instead of heads of argument on 8 August 2025. On 14 August 2025 the application was dismissed by the Registrar

for failing to file heads of argument. This then necessitated the current application under consideration.

RELIEF SOUGHT

The applicant prays for an order in the following terms:

The chamber application for reinstatement of the matter in LCH626/25 is hereby granted.

The matter in LCH626/25 is hereby reinstated with the applicant filing its heads of argument within 5 working days from the date of this order.

There shall be no order as to costs.

ISSUES FOR DETERMINATION

Whether or not the applicant has proffered a reasonable explanation for the delay.

Whether or not applicant has got prospects of success.

THE APPLICABLE LAW

An application for reinstatement is made in terms of proviso to Section 46(b) of the Labour Court Rules, 2017.It reads as follows:

“Provided that the matter may be reinstated by a judge in chambers on good cause shown upon application made within 21 days of the abandonment.”

The requirements for such an application to succeed were stated in the case of FBC Bank Limited

v Robert Chiwanza SC31/17:

“The question for determination is whether the applicant has shown a cause for the reinstatement of the appeal. In considering applications for condonation of non-compliance with its rules the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed against each other are: the degree of non-compliance, the explanation therefore, the importance of the case, the respondent’s interests in the finality of judgment, the convenience to the court, and the avoidance of unnecessary delays in the administration of justice.”

Reference is also made to the cases of Bishi v Secretary for Education 1989 (2) ZLR 240(HC)

and United Plant Hire (Pvt) Ltd v Hills and Ors 1976 (1) SA 717 (SA).

In the case of Sibanda v The State, the court cited the case of S v McNab 1886 (2) ZLR 280 (S)

where Dumbutshena CJ (as he then was) commented as follows:

“I have dealt at length on this point because it is my opinion that laxity on the part of the court in dealing with non-observance of the rules will encourage some legal practitioners to disregard the rules of court to the detriment of the good administration pf justice.”

In the case of Kodzwa v Secretary for Health and Anor 1999 (1) ZLR 313 (SC) the Supreme Court stated as follows:

“The factors which the court should consider in determining an application for condonation are clearly set out in Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5th edition, Cilliers and Loots @897-898 as follows:

“Condonation of non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him the non-compliance.”

What this means is that it is power to be exercised by the court not simply because an application has been made but because applicant has shown good cause or sufficient cause has been shown by the applicant.

In situations where the non-compliance is attributable to the legal practitioner, Guvava JA had this to say in Fadzai John v Delta Beverages SC454/16:

“There comes a time when the court, in the exercise of its discretion, must decide that there is a limit to which such indulgences can be granted to an applicant and such applications will be dismissed where they fail to comply with the rules of court.”

It is settled law that courts do not normally visit errors by legal practitioners on their clients. However, in the case of Fadzai John v Delta Beverages (Supra) the Supreme Court cited the case of Ndebele v Ncube 1992 (1) ZLR 288 (S) @290 C-E where the following comment was made:

“It is a policy of the law that there should be finality to litigation. On the other hand, one does not want to do injustice to litigation but it must be observed that in recent years application for condonation, for leave to apply or appeal out of time and for relief arising out of delays either by the individual or his lawyer have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hears more appeals for mercy than justice. Incompetence has become a growth industry. The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt, roughly translated, the law will help the vigilant but not the sluggard.”

In the case of Fadzai John v Delta Beverages (supra) Guvava JA commented as follows:

“Vigilance applies not only with respect to time taken to file process but incorporates careful observation, due care, prudence, attention to detail, and conscientiousness exemplifies diligence on practitioners’ part in drafting documents for a litigant and obeying court order.”

The other case that warned legal practitioners and their clients for their dilatory approach to litigation is the case of Apostolic Faith Mission in Zimbabwe Ors v Murefu SC28/03:

“There is a limit beyond which a client cannot escape the consequences of the conduct of his legal practitioner and it seems to me that limit has been exceeded in this case.”

APPLICATION OF THE LAW TO THE FACTS

Whether applicant has proffered a reasonable explanation for the delay.

The applicant has submitted that the delay in this matter was occasioned by an error by her legal practitioner in interpreting the rules of court. Applicant’s counsel, Mr Nyanoka deposed of an affidavit wherein he stated that he was of the mistaken view that the procedure to be followed was similar to that in the High Court where parties are required to file answering affidavits. He stated that he filed the answering affidavit in error instead of heads of argument. The applicant indicated that present application was filed promptly upon receiving notification of the abandonment of the case.

On the other hand, the respondent argued that the reasons given by the applicant that her legal practitioner misinterpreted the rules do not make sense at all because no reasonable person would refer to High Court rules when dealing with a labour matter.

It is settled law where fault lies with a legal practitioner, he or she must depose of an affidavit taking blame for the delay. This is a principle of law laid out in the case of Patience Mafu V Freeman Biba Ncube & Anor HB04/16. In casu, the legal practitioner in his affidavit indicated he was mistaken that the labour court procedure mirrored the High Court procedure. All it shows is that the legal practitioner never bothered to familiarize himself with Labour Court rules. He acted the dark and at the end of the day filed an irrelevant answering affidavit and the matter was deemed abandoned. It can never be a question of misinterpretation of the rules because there no rule or similar rule which requires a party to file answering affidavit after a notice of response. What is apparent is that counsel for applicant was negligent when he acted on assumptions instead of checking what the rules require.

It is trite that legal practitioners as officers of the court are charged with exercising due care in the execution of their duties /roles. The courts cannot allow themselves to be inundated with pleas for mercy where legal practitioners would have failed to carryout their work with due diligence. I am aware of the fact that courts must refrain from visiting errors of a legal practitioner on a client however I am inclined to follow the approach by McNally JA (as he then was) in Ndebele v Ncube (supra) where he stated as follows:

“It is a policy of the law that there should be finality to litigation but it must be observed that in recent years applications for condonation, for leave to apply or appeal out of time and for other relief arising out of delays either by the individual or his lawyer have rocketed in numbers. We are

bombarded with excuses for failure to act. We are beginning to hear more appeals for mercy than justice. Incompetence has become a growth industry. The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt, roughly translated, the law will help the vigilant but not the sluggard.”

It is apparent that the applicant cannot escape the sins of her legal counsel who was not diligent enough to familiarize himself with the rules of court.

Similar sentiments were expressed in the case of Apostolic Faith Mission in Zimbabwe and Ors

v Murefu SC28/03:

“There is a limit beyond which a client cannot escape the consequences of the conduct of his legal practitioner and it seems to me that limit has been exceeded in this.”

To condone this conduct where a legal practitioner acts blindly without checking rules of court would be promoting dilatoriness in the legal profession. At the end of the day courts will be dealing with applications for condonation or reinstatements and merits of the case.

Furthermore, it was not desirable for the legal practitioner to depose of an affidavit explaining the cause for the mishap and also handle the matter. To avoid a situation where he would appear to be evidence in a matter he was handling another lawyer was supposed to have handled the matter.

In the light of the above I do not find the explanation given to be reasonable.

Whether or not applicant has got prospects of success in LCH626/25

The applicant’s contention is that she enjoys good prospects of success in LCH626/25 a matter for rescission of judgment and upliftment of bar she seeks to have reinstated on the roll. She asserts that the default in that case was due to the fact that her legal practitioner of choice at the time was placed under curatorship and could not represent her in the matter. She therefore argues that she was in willful default.

The respondent submitted that whilst the applicant’s former legal practitioners were placed under curatorship, Moyo and Jera Legal practitioners took over the management of all cases. It was also submitted that one legal practitioner by the name Effort Jera confirmed knowledge of the set down date which was communicated to the respondent’s counsel. The respondent further argued that if it was true that Mr. Jera was not aware of the set down date, applicant ought to have attached an affidavit from same confirming that position.

The applicant’s explanation is questionable in the absence of an affidavit from the curator because they are the ones who received the notice of set down.

On the merits the applicant’s case appears to be limping. The applicant does not challenge the conviction. Her challenge is centered on the penalty imposed by the respondent. As far as she is

concerned for the offence she was convicted of the penalty provided for in terms of the Code of Conduct was a final written warning not dismissal. It was thus contended that the arbitrator did not err in reversing that penalty.

This court was referred was referred to the following case authorities for the proposition to the effect that the employer’s discretion to dismiss an employee is not absolute and can be interfered with where there is misdirection or the decision is tainted with unreasonableness, Delta Beverages (Pvt) Ltd v Shumba SC 167/20, ZB Financial Holdings v Manyarara SC3/12, and Mashonaland Turf Club v George Mutangadura SC 15/12.

On the other hand, the respondent argued that the employer has the sole discretion to impose penalty which can only be interfered with when there is proof that there has been gross misdirection or unreasonableness. Reference was made to the cases of Innscor Africa (Pvt) Ltd v Letron Chimoto SC 64/12 and National Employment Council for the Catering Industry v Richard Kundeya and 3 Ors SC 35/16. The respondent thus argued that there was no reason for the arbitrator to interfere with the decision of the Disciplinary Authority as was no gross misdirection.

It was further submitted for respondent that despite the fact that in terms of the Cde of Conduct the offence applicant was convicted of attracts penalty of a final written warning, the employer still has a discretion to impose dismissal penalty where there the misconduct goes to the root of the employment contract. To bolster its argument that the appeal court cannot interfere with its discretion to impose penalty in the absence of misdirection the respondent cited the case of Zimplat (Pvt) Ltd v Godide SC2/16 and also Circle Cement v Nyawasha SC60/03 where it was held that:

“Where an employer had taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be repudiation of a contract which it accepted by dismissing her from employment the question of a penalty less severe being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee. The principle enunciated in Zikiti’s case supra was inapplicable to the decision of the disciplinary and grievance committee to dismiss Nyawasha because it was not shown to the Labour Court that its finding that her act of misconduct was of a serious nature as to constitute a repudiation of her contractual obligation entitling Circle Cement to dismiss her from employment was one a reasonable employer would not have made.”

An analysis of the cases cited by both parties it abundantly clear that they raise the same principles that the employer enjoys the sole discretion in so far as imposition of penalty is concerned. The case law authorities also make it clear that when the act of misconduct goes to the root of employment contract dismissal is almost inevitable. The case authorities also make it clear that an appellate court may only interfere with the penalty imposed if there is proof of gross misdirection on the part of the employer or that the exercise of discretion was impeachable.

In this case the applicant was charged and convicted of an offence involving uttering words which showed hatred, ridicule to minor children which went to the root of the contract of employment as

a teacher as per finding by the disciplinary authority. I do not foresee any court interfering with the penalty imposed by the respondent. There are no prospects that the application for rescission of judgment will be decided in applicant’s favour.

There is need for finality to litigation and not have applications for indulgence one after the other. That is great inconvenience to the respondent who is called upon to defend these applications occasioned by the negligence of the applicant who seems not to take court business seriously.

DISPOSITION

It is my finding that the applicant has not shown that good cause exists for the reinstatement of the case LCH626/25. The applicant and her legal practitioner took a lackadaisical approach to the whole case resulting in the appeal being dealt with in default of appearance then in a bid to apply for rescission of judgment filed an answering affidavit instead of heads of argument thereby exhibiting a care free attitude.

I do not see any merits in the application for reinstatement. Wherefore it is ordered as follows:

That the chamber application for condonation for late filing of heads of argument and reinstatement be and is hereby dismissed with costs.

Tk Takaindisa, Applicant’s Legal Practitioners

Gill Godlonton & Gerrans, Respondent’s Legal Practitioners