Christopher Chizura & 2 Others v Zimpost (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/449/14
HELD AT HARARE 19TH JUNE 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBAWE		          JUDGMENT NO LC/H/449/14

HELD AT HARARE 19TH JUNE 2014			CASE NO LC/H/421/13

& 18TH JULY 2014

In the matter between:-

CHRISTOPHER CHIZURA & 2 OTHERS				Applicants

And

ZIMPOST (PVT) LTD						Respondent

Before The Honourable P Muzofa, Judge

For Applicants		B Perusuh (Legal Practitioner)

For Respondent		S Hwacha (Legal Practitioner)

MUZOFA, J:

The applicants were employed by the respondent in different capacities.  Following allegations that they committed offences they were charged and subsequently dismissed.  The process was punctuated with numerous applications.  The applicants then noted an appeal against the arbitrator’s decision dismissing them from employment on 11 June 2013.  The respondent filed its Notice of Response on 28 June 2013.  The applicants who were duly represented by a legal practitioner did not file the heads of argument within 14 days of receiving the Notice of Response as required in terms of the rules.  Accordingly the applicant were barred.

This then is the application for condonation for late filing of heads of argument.  For an applicant to succeed in such an application the court has to consider the following;

The degree of non-compliance and the reasonableness of the applicants explanation for the default.

The prospects of success.

See Kodzwa v Secretary for Health and Anor 1999 (1) ZLR (S)

The degree of non-compliance and the explanation

The applicants were supposed to have filed heads of argument by

18 July 2013.  The heads of argument were subsequently filed after twenty seven days.  The applicants’ legal representative were notified by letter dated 12 July 2013 from the respondent that the heads of argument were out of time.  It took the legal practitioners thirteen days after the reminder to file heads of argument.  The explanation for the delay is that the applicants needed to file an application for interim relief which was being prepared by applicants’ legal practitioners.   To that extent the parties were caught up in that process and lost track of the time limits for filing heads of argument.  Clearly there is a certain degree of negligence in failing to observe the rules of the court.  An application such as this one before the court is therefore an application for excusing the negligence and the degree of negligence becomes one factor together with other factors that will ensure that at the end of the day justice as between the parties is achieved. The explanation is unreasonable.  The applicants were the ones who noted an appeal and later were fully focused on the said application for interim relief at the expense of the main matter.  In any event the interim relief was for the applicants to continue to enjoy the benefit of their former employer when they had infact been dismissed.  I agree with the respondent.  If the legal practitioner for the applicant was indeed ceased with the applicant’s application for interim relief that very process should have made the legal practitioner be alive to the requirement to file heads of argument.  I say so because he had access to the file and was working on it.  This is a clear disregard of the rules.

Prospects of success

Even if the delay was not inordinate and the explanation reasonable, the applicants’ case has no prospects of success on appeal.

The applicants were charged for conducting themselves in conflict with the interest of the corporation and secondly for wilful disobedience to a lawful order.  The applicants did not dispute that they conducted themselves untowardly to the board members.  Their defence was that they were acting in their capacity as trade union representatives.  This defence was rejected by the arbitrator.  Before this court applicants’ legal practitioner’s emphasis was on whether there was a lawful order that the applicants failed to obey.  I do not think this argument takes the applicant’s case anywhere.  The conduct that was proved and not disputed attracted liability on the first charge.  Having been found liable invariably a penalty of dismissal would be appropriate.  So whether the second charge was proved or not would not assist the applicants.  Prima facie there are no prospects of success on appeal.

The net effect of the court’s finding is that the applicants are barred.  The heads of argument cannot be filed and considered by the court.

Accordingly it is ordered that

The application for condonation for late filing of heads of argument be and is hereby dismissed with costs.

Honey & Blanckenberg, applicants’ legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners