COLD Storage Company V Bernard Chitayi & 66 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/540/2016
HARARE, 16 MAY 2016 &
9 SEPTEMBER 2016
CASE NO LC/H/501/2014
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/540/2016

HARARE, 16 MAY 2016 &					         CASE NO LC/H/501/2014

9 SEPTEMBER 2016

In the matter between

COLD STORAGE COMPANY					          APPLICANT

Versus

BERNARD CHITAYI & 66 OTHERS				      RESPONDENTS

Before the Honourable Hove J

For the Applicant	A A Makore (Legal Practitioner)

For the Respondent    E Maponga (Trade Unionist)

HOVE J:

This is an application for condonation for late filing of heads of arguments. The brief facts are that an arbitrator ordered that the employer pays its employees an average of $3000-00 each in relation to wages due and payable to the workers.

The arbitrator in June 2014, ordered that the outstanding wages be paid in three months’ time.

The employer had argued that it cannot pay in that time as it would be unduly harsh on a company that is not performing well. They do not deny that the amounts, as ordered by the arbitrator, are due and payable. They simply argue that they are not able to pay in three months.

The court asked what amount of time the employer thought was reasonable for it to pay the outstanding wages. The employers representative submitted that if the arbitrator had given them two years then it would have been acceptable.

The court pointed out that since the time the award was given, about two years had lapsed and enquired how much of the debt had been paid to date.

The employer’s representative stated that nothing had been paid.

The court is of the view that the employer’s prospects of success are poor. The monies that the arbitrator ordered to be paid, are not disputed. The employer is not being bona fide by requiring more time to pay as almost two years have gone by and not a cent has been paid.

The employer also has to show that it had a reasonable explanation for its failure to comply with the rules of court in order or this application to succeed.

The reason given is that the applicant’s erstwhile legal representative did not emphasize the importance of filing the heads of arguments.

What the applicant is saying is its erstwhile legal practitioner was grossly negligent.

This is not a reasonable explanation for failing to comply with the rules of court. A legal practitioner’s negligence will, in certain cases where it is warranted, prejudice the interests of his client because it is the client who has chosen that legal practitioner to represent him. In Saloojee & Anor NNO v Ministr of Community Development 1952 (2) SA 135 (A) at 141 C the court held as follows:

“There is a limit beyond which a litigant cannot escape the result of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of the court. Considerations and misericordium should not be allowed to become an invitation to laxity.”

There is thus no reasonable explanation for the delay.

Further, the delay is inordinate a delay of one year five months is clearly inordinate. The court cannot come to the assistance of the applicant in this case especially because there is no reasonable explanation for the delay and the applicant has no prospects of success on the merits.

In the case of Grant v Plumbers (Pvt) Ltd 1919 (2) SA 470 the court had this to say:

“I’m of the opinion that an applicant who claims relief under Rule 43 should comply with the following:

He must give a reasonable explanation of his default if it appears that his default was wilful or that it was due to gross negligence, the court should not come to his assistance.

His explanation must be bona fide and not made with the intention of merely delaying the plaintiff’s claim.

He must show that he has a bona fide defence to the plaintiff’s claim.

In casu, the applicant had no good prospects of success.

The fact that it was of the view that two years would have sufficed to pay what it owes the respondents and has not paid anything more than two years after the award was made, shows it is not bona fide in its explanation but is merely making the application to delay the inevitable and frustrate the respondents’ claim.

The explanation advanced, that of gross negligence by the applicant’s legal practitioner, must, in terms of the above authority, make the court refuse to come to its assistance.

It is also a fundamental principle, dictated by public policy that as far as possible there should be finality to litigation. See the case of Forward Kodzwa v Secretary for Health & Anor SC 50-99. Ndebele v Ncube 1992 (1) ZLR 288.

The law will also help the vigilant and not the sluggard. The applicant, for more than a year and three months, failed to comply with the rules of court by neglecting to file its heads of arguments as was required by the law. In the case of Mambo v National Railway Anor HH 4-03.

The court stated that:

“Where a party wishes to have a decision made by somebody reviewed and set aside, that must be done expeditiously … in my view, where a delay … exceed six months, the court should refuse to condone … unless there are very compelling reasons.”

The requirements for granting an application for condonation have not been satisfied. The court must therefore, in the circumstances of this case, refuse to come to the applicant’s assistance.

The following order is made:

The application for condonation for late filing of heads of arguments is dismissed.

The applicant is barred for failing to comply with the rules.

Chinawa Law Chambers, applicant’s legal practitioners