Bothwell Jachatimbe & 2 Ors v African Sun Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/22/2016
HARARE, 9 NOVEMBER 2015 &
22 JANUARY 2016
CASE NO LC/H/562/2011
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/22/2016

HARARE, 9 NOVEMBER 2015 &		                      CASE NO LC/H/562/2011

22 JANUARY 2016

In the matter between

BOTHWELL JACHATIMBE					1st APPLICANT

And

AMON ZVIGERENANI						2nd APPLICANT

And

MAKION CHINYANGA						3rd APPLICANT

versus

AFRICAN SUN LIMITED						RESPONDENT

Before the Honourable E Makamure J

For the Applicants       Miss S Mbetu (Legal Practitioner)

For the Respondent      Mr Jakuosi (Legal Practitioner)

MAKAMURE J:

This is an application for condonation of late filing of heads of argument and upliftment of automatic bar operating against the applicants. The applicants aver that heads of argument were filed out of time in disregard of the rules because of an error on the part of their erstwhile legal practitioner. In the result they ask the court to condone their legal practitioner’s non-compliance and have the automatic bar uplifted and have the Heads of Argument considered as having been properly filed. There is no affidavit by the erstwhile legal practitioner explaining the non-compliance.

It is trite that in an application of this nature the following requirements must be met:

Delay  -  the extend of the delay.

The reasonableness of the explanation.

The prospects of success on the merits.

See Chubb Union Zimbabwe (Pvt) Ltd v Chubb Union Workers Committee                SC 1-2001; Prosper Ganda & Thirteen Ors v First Mutual Life Assurance Society              SC 1-2005.

In the present matter the delay as correctly calculated by the respondent is 109 days (just over three and half months). Apart from attributing the non-compliance to the error by the legal practitioner, none of the other requirements has been sufficiently explained. The applicants pray that the negligence of their legal practitioner should not visit them.

The Rules of court are clear, where parties are represented by legal practitioners, heads of argument must be filed timeously. The parties suggest that the court should condone such non-compliance. The court cannot condone non-compliance. This is because where legal practitioners are present, there is no doubt as to what has to be done. From the submissions of both parties, it is clear that there has not been an explanation for the non-compliance. Thus no matter how bright prospects of success might be, where there is no adequate explanation the application cannot succeed. Further, there are instances where the consequences of the lack of diligence of a legal practitioner must visit his or her clients. The present case is one such instance. See Hyline Motor Spares (Pvt) Ltd & Ors (1993) v Zimbank Corp Ltd 2002 (1) ZLR 514.

In the result the application fails.

Accordingly it is ordered that the application for condonation of non-timeous filing of heads of argument and upliftment of automatic bar be and is hereby dismissed.

Govere Law Chambers, applicants’ legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners