Civil Service Commission & 3 Ors v Bornface Dunduru & 12 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/286/2020
HARARE, 1 OCTOBER 2020
CASE NO. LC/H/APP/67/20
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/286/2020

HARARE, 1 OCTOBER 2020			      CASE NO. LC/H/APP/67/20

AND 27 NOVEMBER 2020.

In the matter between:-

CIVIL SERVICE COMMISSION	 & 3 ORS			APPLICANTS

And

BORNFACE DUNDURU & 12 ORS				RESPONDENTS

Before Honourable B.T. Chivizhe, Judge

For Applicants		Mr J. Buddha (Legal Practitioner)

For Respondents		Ms R. Munatsi (Legal Practitioner)

CHIVIZHE, J:

This is an application for condonation for late filing of Notice of Response and Heads of Argument and upliftment of bar currently operating against Applicants. The application is opposed. The parties initially appeared before the Senior Judge Mhuri on the 19th of May, 2020 in relation to the main application for review filed under reference LC/H/REV/68/19. The parties then sought a postponement to enable the hearing and determination of a prior application for condonation. The parties requested the Senior Judge to grant postponement and proceed to determine the application for condonation on the basis of the record. The Senior Judge duly granted a postponement. The Registrar, through an error, then referred the application for condonation to my Chambers. The application for condonation had somehow become detached from the main record under reference LC/H/REV/68/19. The matter was duly set down for hearing before me as an opposed matter. The parties having appeared before me and advised the court of the background circumstances, that they were awaiting a determination of the same application by the Senior Judge. In view of the fact that no judgment had yet been handed down they requested this Court to proceed to determine the application. This was despite that the application was supposed to have been referred and determined by Senior Judge Mhuri. Upon approaching the Senior Judge she directed that this court proceed to determine the application for condonation. The following therefore constitutes this Court’s ruling on the application as based on the record.

On the 19th of February, 2020 the Applicants filed the present application. In the Founding Affidavit, John Buddha states that he is the legal practitioner seized with the court application in the main matter. He avers that on this basis he is in a position to swear positively to the facts as contained in the affidavit.

He further avers that the Respondents filed an application for review on the 23rd July 2019. They duly served the application at the Attorney-General’s Office on the same day. It was his belief then that the Attorney-General had been served personally since he was cited as Fourth Respondents. He was expecting at that stage the other Respondents in that matter (who are also Applicants in this case) to at some stage issue him with instructions. No such instructions were received. The file had consequently been set aside whilst awaiting the filing of papers by Respondents on the rest of parties. He was then surprised to receive a Notice of Set Down in the main matter on the 11th of February 2020. He then looked for the file and perused it. It was at that stage he realised that the Respondents had actually made an application for condonation for late filing of their application for review which application had been handled by his colleague and the matter had thus progressed to the application for review.

Mr Buddha further states that based on these facts it is the Applicants’ contention that their non-compliance with the Rules was not wilful. The cumulative period of delay in the main matter is six months. As to the explanation for delay the Applicants’ contention is that the delay was occasioned through the mistake by their legal representative as outlined above. On receiving the application for review at the Attorney’s General’s Office the lawyer believed it was a copy for the Attorneys General. He had thus waited to receive instructions from the other cited Respondents in the matter which did not happen. He was only alerted to the issue when Notice of set down was received at the Attorney General’s office and he realised that no Notice of Response was filed.   As far as prospects of success are concerned the Applicants contend that they do have high prospects of success in the main matter as the Respondents (who are Applicants in the main matter) were actually given sufficient time to upgrade themselves or face retirement. It is also Applicants’ contention that the Respondents also failed to support the averments made in the main application by way of evidence. The main application for review is also of great importance to the Applicants and as such they would want to have the matter finalised on the merits.

In opposing the application 1st – 13th Respondents through the Founding Affidavit by the 1st Respondent, Boniface Dunduru, have taken a point in limine. The point taken is that there is at law no application before the Court as the deponent to the Applicants’ Founding Affidavit has no authority from any of the other Applicants to depose to an affidavit. It is Respondents’ contention that the fact that he is the instructing attorney would not ordinarily clothe him with the requisite authority.

On the merits the Respondents submit that the Supporting Affidavit of Ropafadzo Munatsi, their Legal Practitioner of record, clearly outlines the Respondents’ position in regards the factors that this Court ought to consider. It is Respondents’ position that the non-compliance was wilful – the application for condonation in the main matter had been duly served on all the Respondents. The matter had been set down on 23rd of May, 2019 before Honourable Justice Kudya. Mr Bhudha did not come to Court but his colleague Mr Moyo was in Court. Mr Moyo had called Mr Bhudha who had then instructed him to consent to condonation. Mr Bhudha had also advised Counsel to serve the principal application for review on their officers only as they were Respondents’ Legal Practitioners of record. This Respondents’ Counsel had done on 23rd July 2019. It is her contention therefore that Mr Bhudha was at all times aware that he would be served with the application papers as per the prior arrangement. On this basis it is Respondents’ position that the Applicants’ non-compliance is wilful and therefore the application ought to be dismissed.

The Applicants have responded through an Answering Affidavit filed of record.  The Applicants submit that the point in limine is meritless. The deponent to the Founding Affidavit derived his authority to depose to the affidavit from the moment he was engaged to represent the Applicants. Further the legal practitioner through his intimate knowledge of the circumstances that led to the delay is the only one who is in the position to depose to the Founding Affidavit. In regards the merits the Applicants reiterate that the delay was not wilful. Further as the Respondents’ application for review does not carry any prospects of success there is need for the matter to be determined in the main matter so as to bring finality to litigation. The Applicants also dispute the averments by Respondents’ Counsel that Mr Buddha had called Mr Moyo as suggested. The Applicants further submit that no agreement was ever reached to have papers for application for review filed at the Civil Division of the Attorney General’s Office. The Respondents had actually confused the Applicants’ Counsel to believe the copy of application received was for the Attorney General alone. On this basis the Applicants’ prayer is for the application for condonation to be upheld.

POINT IN LIMINE

The Respondents have taken a point in limine. The point taken however clearly stands to be dismissed as it is not meritorious. There appears to be a divergence in authorities from the High Court as to whether it is proper for an instructing Counsel to depose to the Founding Affidavit on behalf of the Applicants. Some judges have found it is not proper (See Mandaza vs Mzilikazi Investments (Private) Limited 2007 (1) ZLR (H) per Ndou J) yet some have found it is proper depending on the circumstances in the case (See Zimbabwe Banking Corporation Limited vs Trust Finance Limited and Another HH 130/06 and Air Zimbabwe Corporation & Others vs Zimbabwe Revenue Authority HH – 96-03. In this particular case I believe it was proper for Applicants Counsel to depose to an affidavit. In arriving at this conclusion the court places reliance on the TFS Management Co (Private) Limited vs Graspeake (Private) and Anor 2005 (1) ZLR 333 which was referred to by Applicants. In the case which is on all fours with the present matter as it relates to a situation where a legal practitioner had deposed to an affidavit for and on behalf of client the Learned Judge Gowora J (as she then was) remarked as follows;

“It would be an absurdity for Mr Lloyd to be given the mandate to sue for the claim and not to have the authority to depose to an affidavit in the name of the applicants where such affidavit would be in relation to matters particularly within his knowledge for purposes of the successful performance of that mandate. It cannot be suggested on the part of the respondents that a legal practitioner instructed to represent a litigant is obliged, each time it becomes necessary to issue process pertaining to the matter at hand, to obtain and exhibit, for the information of the protagonist to that dispute, authority to institute proceedings for an interlocutory nature.”

It is clear that in the present case Mr Buddha’s affidavit is not based on hearsay. He has through his affidavit deposed to facts that are within his personal knowledge. It is also apparent Mr Buddha is representing the Applicants in the main matter. There would clearly be no basis therefore in challenging his authority to depose to the Affidavit.

For the above reasons I dismiss the point in limine.

MERITS

On the merits of the application Applicants submit that the delay in filing Notice of Response is seven (7) months. The explanation for the delay is that the Legal Practitioner who allocated the file realised that the Attorney-General is the 4th Respondent the Attorney-General being the Legal Advisor to Government was wrongly cited so he was not duty bound to respond. The Legal Practitioner could only have acted on the application upon receipt of instructions from the other parties. So he waited. It was only upon receipt of the set down of the main matter that he had realised that the rest of the Respondents (who are Applicants in this matter) had not been served with the application for review. Applicants’ contention is that the period of delay not being inordinate and the explanation reasonable the application should be granted. Applicants’ also contend that they have high prospects of success. Firstly, because the Respondent (Applicants in the main matter) did not serve Respondents (Applicants in this matter) contrary to Rule 20 of the Labour Court Rules, 2017. That provision being a peremptory provision in the rules, a failure to comply is fatal to the proceedings.

The Applicants’ contend as a second argument that in any event it is clear that the Respondents (Applicants in the main matter) have poor prospects of succeeding in the application. The Respondents were lawfully retired after being given notice. Instead of acting on the notices they acted upon information in a newspaper article that did not originate from the employer.

The Applicants also contend as a last point that the Respondents would not suffer any prejudice were this application to be granted in their favour. This is because the granting of the application would allow this court to proceed to determine the main matter on the merits. It is also in the interest of justice that there be finality to litigation and that can only be achieved were the parties to be allowed to be heard on the merits.

The factors to be considered in an application for condonation of any failure to comply with the rules of court are well-established. They have been outlined in many decisions in this jurisdiction. They include but are not limited to the following;

The extent of the delay involved or non-compliance in question.

The reasonableness of the explanation for the delay or non-compliance.

The prospects of success should the application be granted.

The possible prejudice to the other party.

The need for finality in litigation etc.

See Forestry Commission vs Moyo 1997 (1) ZLR 254 (S); Maheya vs Independent African Church SC 58/07; Paul Gary Friendship vs (1) Cargo Carriers     Limited (2) Across Enterprises (Private) Limited SC 1/13

In addressing the finer aspects of this application it is very apparent that the period of delay/non-compliance with the rules being seven (7) months is an inordinate period. The explanation tendered by the Applicants for the delay is also not very convincing. There was an apparent lack of diligence on the part of Applicants’ legal practitioners. It is very apparent from a perusal of the record of proceedings more particular on page 2 of the application that the Attorney-General’s address is recorded as the address of service for the Respondents (now Applicants) so contrary to Mr Buddha’s assertion he ought to have been expecting service of the papers to be effected at the address. The fact that he claims to have received the document and then sat on his laurels expecting to receive delivery of the rest of the papers for six months speaks to clear negligence on his part. It is a clear disservice to his clients.

Whilst there may have been a flagrant disregard of the rules by Applicants Legal Practitioner in the manner they conducted themselves the court cannot however determine the application on that point alone. The court is required to consider all of the factors cumulatively and weigh them in a measured balancing exercise, before deciding whether or not condonation should be granted. See Adrian Panel HolyLand Read vs 1) John Stewart Matthews Gardner 2) Safari Hunter (Private) Limited SC 70/2019. The court is therefore duty bound to consider the rest of the factors. I turn to address the prospects of success.

The application in the main matter is an application for review. The Respondents (Applicants in matter) are seeking for the setting aside of the decision by 1st, 2nd and 3rd Applicants’ to retire them, in terms of Section 18 (4) (a) (ii) of the Public Service Regulations, 2000 as amended. Given the gravamen of the issues that are in dispute between the parties this is a case where the court should clearly grant condonation. It is clear that the matter is of great importance to both parties. See 1st Respondent’s Opposing Affidavit response to Applicants’ paragraph 13. The interest of justice would also be served in this case by allowing the matter to be heard on the merits. This is more especially in view of the conflicting positions adopted by the parties as to whether or not the process followed by the Applicants resulted in a lawful retirement process. There may actually be need for evidence to be led from both parties. It would result in an injustice therefore to allow this matter to be determined on the basis of a technical issues through the failure by one party to comply with the rules of this court.

On this basis therefore the court grants the following order;

Condonation is extended to the Applicants for the failure to file Notices of Response and Heads of Arguments in the main matter.

The bar currently operating against the Applicants be and is hereby uplifted.

Leave is hereby extended to Applicants to file their Notice of Response and Heads of Arguments in case number LC/H/REV/68/19 within 10 days of this order.

Costs to be in the cause.

Civil Division of the Attorney General’s Office, applicants’ legal practitioners

Munatsi & Associates, respondents’ legal practitioners